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1
of
86
CONSTITUTIONAL
LAW
[1]
Sources
&
Nature
of
the
Constitution-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐
Minister,
or
of
the
cabinet
or
of
the
dependence
of
the
cabinet
on
the
support
of
a
majority
in
the
House
of
Commons:
the
composition
of
the
Definition
of
Constitutional
Law:
actual
executive
authority
and
its
relationship
of
the
legislative
authority
=
The
law
prescribing
the
exercise
of
power
by
the
organs
of
a
State.
It
explains
were
left
in
the
form
of
unwritten
conventions
–
as
in
the
UK
which
organs
can
exercise
legislative
power
(making
new
laws),
executive
power
o No
amending
clause
–
amendments
go
through
UK
Parliament
(implementing
the
laws)
and
judicial
power
(adjudicating
disputes),
and
what
the
o No
mention
of
responsible
government
limitations
on
those
powers
are
o No
rules
for
Supreme
Court
(said
there
can
be
one,
but
didn’t
establish)
o No
Civil
Rights
protected
(left
to
UK
common
law)
(a) Constitution
Act,
1867
o Constitution
Act,
1867:
“whereas
the
provinces
of
Canada,
Nova
Scotia,
! B.N.A
Act,
1867
was
renamed
the
Constitution
Act,
1867
and
New
Brunswick
have
expressed
their
desire
to
be
federally
united
into
! B.N.A
Act:
goal
=
confederation
(split
from
UK)
one
Dominion
under
the
Crown
of
the
UK
of
Great
Britain
and
Ireland,
o Created
the
new
Dominion
of
Canada
by
uniting
3
of
the
colonies
of
with
a
constitution
similar
in
principle
to
that
of
the
UK.”
British
North
America
and
by
providing
the
framework
for
the
admission
of
all
other
British
North
American
colonies
and
territories
(b)
Constitution
Act,
1982
o Established
the
rules
of
federalism=
rules
that
allocate
governmental
! Made
3
important
repairs
to
Canada’s
constitutional
law:
(1)
a
domestic
power
between
the
central
institutions
(especially
the
federal
amending
formula
was
adopted;
(2)
the
authority
over
Canada
of
the
United
Parliament)
and
the
provincial
institutions
(especially
the
provincial
Kingdom
(imperial)
Parliament
was
terminated;
and
(3)
the
Charter
of
Rights
Legislatures)
was
adopted
o Did
not
follow
the
model
of
the
Constitution
of
the
United
States
in
! the
phrase
“Constitution
of
Canada”
was
used
for
the
first
time
in
this
Act
codifying
all
of
the
new
nation’s
constitutional
rules
"
the
reason
was
stated
in
the
preamble
to
the
Act:
the
new
nation
was
to
have
“a
(c)
Constitution
of
Canada
Constitution
similar
in
principle
to
that
of
the
United
Kingdom.”
! defined
in
s.
52(2)of
the
Constitution
act,
1982-‐
it
includes:
o Some
of
the
most
important
rules
were
not
matters
of
law
at
all,
but
o (a)the
Canada
Act
1982,
including
the
Constitution
Act
1982
were
simply
“conventions”
which
were
unenforceable
in
the
courts
o (b)the
thirty
other
Acts
and
orders,
including
Constitution
Act
1867
o Because
of
the
absence
of
an
amending
clause
in
the
BNA
Act,
the
o (c)
amendment
which
may
be
made
imperial
Parliament
enacted
amendments
to
the
Act
until
1982,
when
! the
Charter
of
Rights
is
part
of
the
Constitution
of
Canada
because
it
is
Part
I
of
the
Constitution
Act,
1982
(itself
an
imperial
statute)
finally
supplied
the
Constitution
Act,
1982,
which
is
schedule
B
of
the
Canada
Act
1982,
which
amending
procedures
which
could
be
operated
entirely
within
Canada.
is
expressly
named
in
s
52(2)
! Definition
of
constitution
is
not
exhaustive
“uses
word
includes”
!
GAPS
IN
THE
BNA
ACT:
! The
supremacy
clause
is
s.
52(1),
-‐
affirms
the
primacy
of
the
Constitution
of
o The
office
of
Governor
General
has
never
been
formalized
in
an
Canada
which
provides:
The
Constitution
of
Canada,
and
any
law
that
is
amendment
to
the
BNA
Act
–
the
office
is
still
constituted
by
the
royal
inconsistent
with
the
provisions
of
the
Constitution
is,
to
the
extent
of
the
prerogative
and
appointments
are
still
made
by
the
Queen
(although
acts
inconsistency,
of
no
force
or
effect
"
this
gives
priority
to
the
‘Constitution
of
on
the
advice
of
her
Canadian
ministers
Canada’
where
is
it
inconsistent
with
other
laws.
o The
Rules
of
the
System
of
responsible
(cabinet)
government
never
written
into
the
BNA
Act
and
so
there
is
no
mention
of
the
Prime
Page
2
of
86
! The
entrenchment
clause
is
s
52(3):
Amendments
to
the
Constitution
of
(f)
Case
Law
Canada
shall
be
made
only
in
accordance
with
the
authority
contained
in
the
! Another
important
source
of
constitutional
law
Constitution
of
Canada
"
effect?
Constitution
of
Canada
cannot
be
amended
! As
part
of
the
process
of
“interpretation”,
the
SCC
has
not
hesitated
to
find
by
ordinary
legislative
action,
but
only
by
the
special
amending
procedures
laid
“unwritten”
principles
that
“underlie”
the
text
of
the
Constitution
Act
1867,
down
by
Part
V
of
the
Constitution
Act,
1982
and
the
Constitution
Act,
1982.
o Reasons
for
entrenching:
! For
example,
the
courts
use
the
doctrine
of
parliamentary
privilege,
which
is
o “May
provide
an
added
safeguard
for
fundamental
human
rights
and
nowhere
mentioned
in
the
2
Acts,
to
exempt
the
actions
of
legislative
individual
freedoms
“
assemblies
from
the
Charter
of
Rights
o “may
seek
to
ensure
that
vulnerable
minority
groups
are
endowed
with
the
institutions
and
rights
necessary
to
promote
their
identities
! REFERENCE
RE
SECESSION
OF
QUEBEC
[1998]:
against
the
assimilative
pressures
of
the
majority’
• SCC
invoked
4
unwritten
fundamental
principles
of
the
Constitution:
o “may
provide
for
a
division
of
the
public
power
that
allocates
political
(1)
democracy,
(2)
federalism,
(3)
constitutionalism
and
the
rule
of
law
power
amongst
different
levels
of
government”
and
the
(4)
protection
of
minorities
to
hold
that,
if
a
province
were
to
decide
in
a
referendum
that
it
wanted
to
secede
from
Canada,
the
federal
Downside
of
not
having
complete
constitutional
text:
lawyers
need
to
search
government
and
the
other
provinces
would
come
under
a
legal
duty
to
through
the
following
sources
to
define
the
constitution:
enter
into
negotiations
to
accomplish
the
secession
• Illustrates
the
active
and
creative
role
that
the
modern
SCC
has
carved
(d)
Imperial
Statutes
• This
case
carries
the
Constitution
of
Canada
way
beyond
the
literal
! Both
Constitution
Act
1867
and
1982
are
imperial
statutes
language
of
its
text
and
way
beyond
the
intentions
of
the
framers
! =
statutes
enacted
for
Canada
by
the
UK
Parliament
in
its
role
as
imperial
Parliament
(g)
Prerogative
! these
2
statutes
are
within
the
definition
of
the
Constitution
of
Canada
in
s
! the
royal
prerogative
consists
of
the
powers
and
privileges
accorded
by
the
52(2)
of
the
constitution
Act
1982,
they
are
supreme
over
other
laws
and
can
common
law
to
the
Crown
be
amended
or
repealed
only
in
accordance
with
the
amending
procedures
of
!
powers
or
privileges
unique
to
the
Crown
Part
V
of
the
Constitution
of
Canada
• Making
treaties
! Other
imperial
statues
have
no
effect
on
Canada.
• Conducting
war
• Office
of
Governor
General
(e)
Parliamentary
Privilege
• Appointment
of
prime
minister
and
ministers
! Common
law
powers
• Obtaining
passports
! Not
subject
to
the
Charter
(unlike
other
common
law
powers
of
government)
• Creation
of
aboriginal
reserves
! The
Federal
Houses
of
Parliament
and
the
provincial
legislative
assemblies
! Dicey
described
it
as
“the
residue
of
discretionary
or
arbitrary
authority,
which
possess
a
set
of
powers
and
privileges
that
are
“necessary
to
their
capacity
to
at
any
given
time
is
left
in
the
hands
of
the
Crown”
function
as
legislative
bodies”;
these
powers
and
rights
are
known
collectively
! a
branch
of
the
common
law,
because
it
is
the
decisions
of
the
courts
which
as
“parliamentary
privilege”
have
determined
its
existence
and
extent
! ie.
freedom
of
speech
in
debate,
including
immunity
from
legal
proceedings
! apart
from
the
power
over
the
colonies,
the
courts
held
that
there
was
no
for
things
said
in
debate
prerogative
power
to
legislate:
only
the
Parliament
could
make
new
laws
! could
be
regarded
as
a
branch
of
the
common
law
in
that
it
is
not
contained
in
! The
courts
also
held
that
there
was
no
prerogative
power
to
administer
justice:
any
statute
or
other
written
instrument,
and
it
is
the
courts
who
determine
its
only
the
courts
could
adjudicate
disputes
according
to
law
–
these
decisions
existence
and
extent
confined
the
prerogative
to
executive
governmental
powers
! Canada
v
Vaid
(2005)
"
sweeping
claim
of
parliamentary
privilege
failed
to
! Powers
can
be
abolished
or
limited
by
a
statute,
and
once
a
statute
had
meet
the
test
for
necessity.
“hiring/firing
of
all
employees
in
gov
not
occupied
the
ground
formerly
occupied
by
the
prerogative,
the
Crown
had
to
protected”
comply
with
the
terms
of
the
statute
Page
3
of
86
! The
exercise
of
the
Crown’s
prerogative
powers
is
regulated
by
conventions,
• Example
of
usage:
the
practice
of
appointing
to
the
position
of
Chief
not
laws.
These
powers
are
now
limited
by
the
courts,
who
have
power
to
Justice
of
Canada
the
person
who
is
the
senior
puisne
judge
of
the
SCC
determine
existence,
compliance
with
statute,
charter
etc.
(1.9
note.
)
at
the
time
of
the
vacancy
• A
usage
may
develop
into
a
convention
–
if
a
practice
is
invariably
(h)
Conventions
followed
over
a
long
period
of
time,
it
may
come
to
be
generally
I. Definitions
of
conventions
[
generally
regarded
as
obligatory
]
regarded
as
obligatory
and
thereby
cease
to
be
merely
a
usage
–
the
• =
Rules
of
the
constitution
that
are
not
enforced
by
the
law
courts
resulting
convention
may
be
called
a
custom
=
the
ways
in
which
most
because
they
are
regarded
as
non-‐
legal
rules.
conventions
have
been
established
• Prescribe
the
way
in
which
legal
powers
shall
be
exercised
• Patriation
Reference
was
the
first
time
courts
looked
at
different
• Some
have
the
effect
of
transferring
effective
power
from
the
legal
between
usage
and
convention
(custom).
They
asked
three
things
holder
to
another
official
or
institution
found
above.
Provinces
argued
that
the
rule
was
crystalized
into
law
• Other
limit
or
do
not
apply
a
legal
power.
(common
law)
and
thus
was
now
obligatory.
Yet
no
precedent
on
• Example:
the
Constitution
Act
1867
and
many
Canadian
statutes,
crystallization
of
conventions
in
past.
confer
extensive
powers
on
the
Governor
General
or
on
the
Governor
General
in
Council
(aka
Prime
Minister
&
cabinet),
but
a
convention
IV. Convention
and
law
stipulates
that
the
Governor
General
will
exercise
those
powers
only
in
• A
convention
could
be
transformed
into
law
by
statute
and/or
the
accordance
with
the
advice
of
the
cabinet
or
in
some
other
case
the
enforcement
of
the
courts
Prime
Minister
• Where
“unconstitutionality”
springs
merely
from
a
breach
of
• So
why
are
they
obeyed?
convention,
no
breach
of
the
law
has
occurred
and
no
legal
remedy
o Breach
=
serious
political
consequences.
will
be
available
• Requirements
(courts
ask)
for
establishing
a
convention
(also
for
determining
whether
a
usage
has
become
a
convention):
Patriation
Reference
o What
are
the
precedents/
rules?
o Did
the
actors
believe
that
they
were
bound
by
a
rule?
o Is
there
a
reason
for
the
rule?
II. Conventions
in
the
courts
• Although
a
convention
will
not
be
enforced
by
the
courts,
the
existence
of
a
convention
has
occasionally
been
recognized
by
the
courts
• Patriation
Reference
(81)
–
Courts
found
convention
to
exist
that
federal
government
needed
substantial
approval
from
provinces
to
amend
the
constitution.
Yet
there
was
no
legal
requirement
to
do
so.
III. Convention
and
usage
• Convention
are
often
distinguished
from
“usages”:
a
convention
is
a
rule
which
is
regarded
as
obligatory
by
the
officials
to
whom
it
applies
• a
usage
is
not
a
rule,
but
merely
a
governmental
practice
(tradition)
which
is
ordinarily
followed,
although
it
is
not
regarded
as
obligatory
Page
4
of
86
[2]
Amending
Procedures-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐
(b) The
search
for
a
domestic
amending
procedure
History
of
amendment
! Constitution
Act
1982
was
the
result
end
of
a
search
for
a
domestic
amending
(a) Imperial
amendment
procedure
which
started
in
1927.
! Two
previous
attempts
were
made.
Both
giving
veto
power
to
Quebec.
! BNA
Act,
1867
differed
from
the
constitutions
of
US
and
AUS
(and
other
! The
elimination
of
the
UK
Parliament
in
Canada’s
amendment
process
could
federal
countries)
in
that
it
contained
no
general
provision
for
its
own
not
be
accomplished
until
a
domestic
amending
procedure
had
been
enacted
amendment
"
Until
1982,
amendments
to
the
BNA
Act
had
to
be
enacted
by
the
UK
(imperial)
Parliament
into
Canada’s
Constitution
! In
1931,
when
the
Statute
of
Westminster
conferred
upon
Canada
(and
the
other
dominions)
the
power
to
repeal
or
amend
imperial
statutes
applying
to
(c) The
failure
to
accommodate
Quebec
Canada,
BUT
NOT
the
BNA
Act
"
this
was
done
so
that
the
BNA
Act
could
not
! The
Constitution
Act
1982
was
a
major
achievement,
curing
several
long
be
amended
by
an
ordinary
statute.
This
was
already
a
longstanding
standing
defects
in
the
Constitution
of
Canada
! Accomplishments:
As
well
as
the
adoption
of
domestic
amending
procedures
convention
anyways.
(ss38-‐49),
a
Charter
of
Rights
was
adopted
(ss1-‐34),
aboriginal
rights
were
! The
BNA
Act
could
still
be
amended
only
by
the
UK
Parliament
! Imperial
Conference
of
1930
=
Constitutional
convention:
UK
Parliament
recognized
(s35),
equalization
was
guaranteed
(s36),
provincial
powers
over
would
not
enact
an
amendment
to
the
BNA
Act
(or
any
other
law
applying
to
natural
resources
were
extended
(ss50-‐51),
and
the
Constitution
of
Canada
Canada)
except
at
the
request
and
with
the
consent
of
Canada
was
defined
and
given
supremacy
over
other
laws
(s52).
o Convention
did
not
stipulate
which
governmental
bodies
in
Canada
should
make
the
request
for,
and
give
the
consent
to,
proposed
! BUT
the
Constitution
Act
1982
failed
to
accomplish
one
of
the
goals
of
constitutional
reform,
and
that
was
the
better
accommodation
of
Quebec
amendments
to
the
BNA
Act
within
the
Canadian
federation
o However,
long
before
1930,
the
practice
had
developed
of
requesting
! Quebec
viewed
the
amendments
as
non
binding,
and
often
utilized
s33.
amendments
by
a
“joint
address”
of
the
Canadian
House
of
Common
and
the
Canadian
Senate
Notwithstanding
clause
to
opt
out
of
legislation.
Yet
they
were
legally
bound.
! What
was
the
role
of
the
provinces
in
the
amending
process?
! Patriation
Reference
1981!
held
that
the
consent
of
the
Part
V
of
the
Constitution
Act,
1982
(ss38-‐49)
(amending
procedure)
provinces
to
the
proposed
amendments
was
not
required
“as
! Replaced
Patriation
Reference
approach
of
using
constitutional
convention
of
obtaining
provincial
consent
to
a
substantial
degree
a
matter
of
law”,
but
that
a
“substantial
degree”
of
provincial
! Part
V
of
the
Constitution
Act
1982
is
headed
‘Procedure
for
Amending
consent
was
required
“as
a
matter
of
convention”
Constitution
of
Canada.”
It
provides
5
different
amending
procedures:
o The
Constitution
Act,
1982,
Part
V,
introduces
into
the
Canadian
Constitution
a
set
of
amending
procedures
which
enable
the
BNA
Act
(now
renamed
1.
General
amending
procedure
(s
38)-‐
aka
the
7/50
Rule
Constitution
Act,
1867)
and
its
amendment
to
be
amended
within
Canada
(A)
Section
38(1)-‐
requires
that
an
amendment
to
the
Constitution
be
without
recourse
to
the
UK
Parliament.
(role
of
UK
Parliament
in
Canada
authorized
by
amendment
process
is
eliminated)
(a)
Resolution
of
Both
House
of
the
federal
Parliament
(Senate
&
o The
role
of
the
federal
and
provincial
governments
in
the
amendment
House
of
Commons);
and
process
are
now
defined
in
precise
statutory
language.
(b)
Resolutions
of
the
legislative
assemblies
of
at
least
two-‐thirds
of
o The
vague
and
unsatisfactory
rules
laid
down
by
the
SCC
in
Patriation
the
provinces,
provides
that
they
represent
at
least
50
%
of
the
Reference
(above)
have
been
replaced
and
have
NO
CURRENT
population
of
all
the
provinces
(in
practice:
at
least
1
Western
RELEVANCE.
Province,
at
least
1
Atlantic
Province,
Quebec
or
Ontario=
7/50
rul
o The
new
procedures
in
Part
V
of
the
Constitutions
Act,
1982
(B)
Proclamation
constitute
a
complete
code
of
legal
(as
opposed
to
conventional)
• Once
the
authority
for
an
amendment
has
been
provided
by
the
rules
which
enable
all
parts
of
the
“Constitution
of
Canada”
to
be
requisite
number
of
resolutions
of
assent,
s
38(1)
provides
that
the
amended.
Page
5
of
86
formal
act
of
amendment
is
accomplished
by
a
“proclamation
• 42(1)(a)
refers
to
“the
principle
of
proportionate
representation
of
issued
by
the
Governor
General
under
the
Great
Seal
of
Canada”
the
provinces
in
the
House
of
Commons”
• Section
39
imposes
time
limits
on
the
issue
of
this
proclamation
– ! But
grandfather
clause
(which
guaranteed
that
provinces
39(1)-‐
the
proclamation
is
not
to
be
issued
until
a
full
year
has
with
declining
populations
would
not
lose
any
seats
on
a
elapsed
from
the
adoption
of
“the
resolution
initiating
the
readjustment)
does
not
require
7/50
amendment:
amendment
procedure”,
unless
before
then
all
provinces
have
Campbell
v.
Canada
adopted
resolutions
of
assent
or
dissent.
o 42(1)(b)(c)
refer
to
the
powers
of
the
Senate,
the
method
of
(C)
Initiation
selecting
senators
and
provincial
representation
in
the
Senate
! Procedure
for
amendment
“may
be
initiated
either
by
the
Senate
or
the
o
42(1)(d)
refers
to
the
SCC
in
all
aspects
other
than
its
composition
House
of
Commons
or
by
the
legislative
assembly
of
a
province
(s
46(1))
(specifically
listed
in
s
41(d)-‐
the
unanimity
procedure)
[anyone
who
has
authority
to
amend]
! Supreme
Court
Act
is
a
federal
statute
that
is
not
one
of
(D)
Opting
Out
the
instruments
forming
part
of
the
constitution.
Since
s
! s
38(3)
enables
any
province
to
opt
out
of
an
amendment
that
derogates
42
applies
only
to
amendments
to
the
“constitution
of
from
the
province’s
powers,
rights
or
privileges
and
that
is
unacceptable
Canada”
the
federal
parliaments
acting
under
s
101
of
the
to
it.
Not
a
veto,
just
amendment
dosnt
apply
to
it.
CA
1867
is
the
amending
power
of
the
supreme
court
act
! A
MAXIMUM
OF
3
PROVINCES
could
opt
out
of
an
amendment—if
there
! Supreme
Court
of
Canada
Act
can
be
changed
by
ordinary
were
more
than
3
dissenting
provinces,
the
amendment
would
not
have
legislation
the
support
of
two-‐thirds
of
the
provinces
and
would
therefore
be
o s.42(1)(e)
refers
to
the
extension
of
existing
provinces
into
the
defeated
(7/50
Rule)
territories,
and
par
(f)
to
the
establishment
of
new
provinces
–
! S
38(3)-‐
a
resolution
of
dissent
must
be
passed
“prior
to
the
issue
of
the
! The
Constitution
Act
1871,
by
s
2
authorizes
the
federal
proclamation
to
which
the
amendment
relates”
(cant
opt
out
after).
parliament
to
establish
new
provinces
in
federal
(E)
Compensation
for
Opting
Out
(only
for
edu
/
cultural
matters)
territories
and
by
s
3
authorizes
the
federal
Parliament,
! Section
40
imposes
upon
the
federal
government
the
obligation
to
with
the
consent
of
a
province,
to
extend
the
boundaries
provide
“reasonable
compensation”
to
any
province
that
has
opted
out
of
a
province
"
these
provisions
were
not
repealed
or
of
an
amendment
that
transfers
“provincial
legislative
powers
relating
to
amended
in
1982
and
can
still
be
operated
without
any
education
or
other
cultural
matters”
from
the
provincial
Legislatures
to
change
in
the
Constitution
of
Canada
the
federal
Parliament-‐"
purpose
of
this
obligation:
to
ensure
that
a
!
(H)
“Regional
Veto”
Statute
province
is
not
abandoning
jurisdiction
over
educational
or
cultural
• The
general
(seven-‐
fifty)
amending
formula
of
s
38
does
not
give
matters
because
of
financial
issues.
any
province
a
veto
over
constitutional
amendments
! Amendments
that
do
not
relate
to
education
or
cultural
matters
do
not
• Purpose
of
the
statute:
to
import
new
conditions
into
the
general
carry
any
constitutional
right
to
compensation
for
opting
out
(seven-‐fifty)
formula
for
amending
the
Constitution
of
Canada
(F)
Revocation
of
Assent
or
Dissent
• On
top
of
the
constitutional
requirement
of
support
by
7
provinces
! A
resolution
of
assent
may
be
revoked
only
before
the
issue
of
the
representing
50%
of
the
population,
the
statute
imposes
the
new
proclamation
authorized
by
the
resolution
(s46(2)
statutory
requirement
that
the
7
agreeing
provinces
must
include
! 38(4)-‐
a
resolution
of
dissent
(an
opting-‐out
resolution)
may
be
revoked
the
five
“regions”
stipulated
in
the
Act,
namely,
Ontario,
Quebec
at
any
time,
before
or
after
the
issue
of
proclamation
British
Columbia,
two
Atlantic
provinces
and
two
Prairie
provinces
(G)
Section
42
• Only
applies
to
amendments
that
are
to
follow
the
general
(seven-‐
! The
general
amending
procedure
(the
7/50
formula)
is
the
correct
one
fifty)
amending
procedure
of
s
38
and
that
do
not
afford
a
for
the
residual
class
of
amendments
which
are
not
covered
by
the
dissenting
province
the
constitutional
right
to
“opt-‐out”
more
specific
procedures
of
ss
41,
43,
44
and
45
! In
addition
s
42
requires
that
the
general
amending
procedure
be
used
for
6
defined
classes
of
amendments
to
the
Constitution
of
Canada
Page
6
of
86
2.
A
unanimity
procedure
(s
41)
[needs
unanimous
votes]
3.
A
some-‐but-‐not-‐
all
provinces
procedure
(s
43)
! for
5
defined
kinds
of
amendments,
requiring
the
assents
of
the
federal
! For
amendment
of
provisions
not
applying
to
all
provinces,
requiring
the
Parliament
and
all
of
the
provinces
assents
of
the
federal
Parliament
and
only
those
provinces
affected
! s41
lists
5
matters
which
an
amendment
to
the
Constitution
of
Canada
! S
43
of
Constitution
Act
1982:
requires
the
unanimous
support
of
the
provinces,
as
opposed
to
the
two-‐ • 43.
An
amendment
to
the
Constitution
of
Canada
in
relation
to
any
thirds
majority
called
for
by
the
general
procedure
of
s
38(1)
provision
that
applies
to
one
or
more,
but
not
all,
provinces,
including
! Subject
to
no
time
limit
(a) Any
alteration
to
boundaries
between
provinces,
and
! Brought
into
force
by
a
proclamation
of
the
Governor
General
(b) Any
amendment
to
any
provision
that
relates
to
the
use
of
the
English
or
the
French
language
within
a
province,
! In
respect
of
these
matters,
each
province
has
a
veto
over
amendments
May
be
made
by
proclamation
issued
by
the
Governor
General
under
the
! The
5
listed
topics
are
specially
entrenched
because
they
are
deemed
to
Great
Seal
of
Canada
only
where
so
authorized
by
resolutions
of
the
be
matters
of
national
significance
which
should
not
be
altered
over
the
Senate
and
House
of
Commons
and
of
the
legislative
assembly
of
each
objection
of
even
one
province
province
to
which
the
amendment
applies
! There
are
provisions
of
the
Constitution
of
Canada
which
apply
to
one
or
(a)=
“the
office
of
the
Queen,
the
Governor
General
and
the
more,
but
not
all,
provinces
Lieutenant
Governor
of
a
province”-‐
! Hogan
v
Newfoundland
(2000):
rights
of
minority
are
entrusted
to
• Effect
of
entrenching
provisions
of
the
constitution
of
Canada
that
majority,
but
protection
is
provided
by
more
complicated
procedure
deal
with
the
monarchy
and
its
representatives
in
Canada
o if
a
provision
of
the
constitution
only
applies
to
one
province
s
43
expressly
applies
to
that
provision
(b)=
entrenches
the
right
of
the
least
populous
provinces
to
a
! BUT,
s
45
gives
province
exclusive
right
to
amend
“constitution
of
the
minimum
number
of
members
in
the
House
of
Commons,
province”
o Thereby
modifying
the
relentless
application
of
representation
by
o Alternatively:
s
43
applies
to
anything
found
in
the
Constitution
Acts,
population
"
this
provision
called
the
“senate
floor”
was
and
s
45
applies
to
issues
outside
those
acts
established
to
limit
the
declining
representations
of
the
maritime
provinces
by
the
BNA
Act
1915,
which
added
a
new
s
51A
to
the
4.
The
federal
Parliament
alone
(s
44)
BNA
Act
(now
Constitution
Act
1867).
If
s
51A
were
not
protected
! Has
power
to
amend
provisions
relating
to
the
federal
executive
and
by
s
41,
it
would
be
arguable
that
it
could
be
repealed
or
amended
House
of
Parliament
by
the
federal
Parliament
alone
under
s
44
! 44.
Subject
to
section
41
and
42,
Parliament
may
exclusively
make
laws
amending
the
Constitution
of
Canada
in
relation
to
the
executive
government
of
Canada
or
the
Senate
and
House
of
Commons
(by
ordinary
legislation)
(ordinary=
not
entrenched
(c)=
entrenches
those
provisions
of
the
Constitution
of
Canada
that
make
provision
for
“the
use
of
the
English
or
French
language”
legislation)
! The
matters
listed
in
s
42
which
include
some
of
the
rules
regarding
the
(d)=
entrenches
the
“composition
of
the
SCC”-‐
Senate
and
House
of
Commons
can
be
amended
only
by
the
general
-‐ The
term
“composition”
is
not
entirely
clear:
the
total
number
of
(seven-‐
fifty)
amending
procedure
of
s
38(1),
which
requires
the
consent
judges,
and
the
number
of
judges
who
must
be
drawn
from
a
of
two-‐thirds
of
the
provinces
having
at
least
50%
of
the
population
particular
region,
are
probably
aspects
of
composition;
the
mode
of
appointment
is
probably
not.
(but
since
rules
regarding
the
5.
Each
provincial
Legislature
alone
(
s
45)
! S
45.
Subject
to
section
41,
the
legislature
of
each
province
may
exclusively
make
laws
composition
of
the
SCC
are
contained
in
the
Supreme
Court
Act,
amending
the
constitution
of
the
province
which
is
not
part
of
the
“Constitution
of
Canada”
par
(d)
is
! Authorizes
each
provincial
Legislature,
by
ordinary
legislation,
to
amend
probably
ineffective
–
composition
of
the
SCC
can
still
be
changed
the
“constitution
of
the
province”
by
the
ordinary
legislative
process
of
the
Parliament
of
Canada
! S
45
differs
from
ss
38,
41,
42,
43,
and
44
in
that
s
45
makes
no
reference
(e)=
provides
that
any
amendment
to
the
amending
procedures
to
the
“Constitution
of
Canada”,
a
term
defined
in
s
52(2)
of
the
themselves
(“this
part”
being
part
V
of
the
Constitution
Act
1982)
can
Constitution
Act
1982.
Instead
s
45
refers
to
the
“constitution
of
the
only
be
effected
by
the
unanimity
procedure
of
s41
province”,
which
is
not
defined
anywhere
in
the
Constitution
Act
1982
Page
7
of
86
Future
Amendments
General
Considerations
(a) Forces
of
change
! Amending
procedures
apply
to
the
Constitution,
as
defined
in
s
52(2)
! the
movement
for
constitutional
reform
which
led
to
the
constitutional
! some
odd
exceptions:
Supreme
Court
of
Canada
Act,
Official
Languages
Act
amendments
of
1982
and
which
will
lead
to
continuing
efforts
to
adopt
other
! The
amending
procedures
are
not
required
for
the
amendment
of
statutes
or
amendments
to
the
Constitution,
is
powered
by
a
number
of
forces
instruments
that
are
not
part
of
the
Constitution
of
Canada;
anything
that
is
o French-‐
Canadian
nationalism=
French
Canadians
are
a
minority
in
not
part
of
the
Constitution
of
Canada
can
be
amended
by
the
ordinary
action
the
nation
as
a
whole,
but
a
majority
in
the
province
of
Quebec.
Their
of
the
competent
legislative
body
distinctive
language
and
culture,
nurtured
by
the
memory
of
the
! Charter
does
not
apply
to
most
amending
procedures,
because
it
can
be
conquest
by
the
English
and
the
constant
danger
of
assimilation,
has
modified
by
the
general
procedure
but
Charter
applies
to
amendments
within
made
them
anxious
to
be
masters
in
their
own
house.
This
inevitably
exclusive
federal
or
provincial
jurisdiction
leads
to
demands
for
greater
power
in
the
provincial
Legislature
in
Quebec
City
–
the
Legislature
that
is
controlled
by
a
French-‐
Canadian
majority
Secession
(Chap
5.7)
o Western
regionalism
=
this
is
based,
not
on
a
distinctive
language
or
(a) The
power
to
secede
(break
away,
pull
out,
withdraw)
culture,
but
on
the
distinctive
economic
base
of
four
western
! There
is
no
reason
in
principle
why
a
federal
constitution
should
not
give
countries.
Because
the
bulk
of
Canada’s
population
is
concentrated
in
a
power
of
secession
to
its
provinces
or
states
Ontario
and
Quebec,
federal
policies
have
tended
to
favour
the
! The
absence
of
any
provision
in
the
Constitution
authorizing
secession
manufacturing
industries
and
consumers
of
central
Canada
makes
clear
that
no
unilateral
secession
is
possible
o Aboriginal
peoples
of
Canada
=
they
seeks
entrenchment
of
an
! The
question
whether
a
province
has
the
power
to
secede
from
the
explicit
right
to
self
–
government
and
a
right
to
participate
in
the
Canadian
federation
became
an
issue
after
the
election
in
Quebec
in
process
of
constitutional
amendment
at
least
where
aboriginal
rights
1976
of
the
Parti
Quebecois
could
be
affected
! The
1995
referendum
proceeded
on
the
assumption
that
a
unilateral
o Canadian
nationalism
declaration
of
independence
would
be
legally
effective
to
remove
o Civil
libertarian
impulse
to
entrench
a
Charter
of
Rights
in
the
Quebec,
with
its
present
boundaries,
from
Canada,
without
the
need
for
Constitution
any
amendment
of
the
Constitution
of
Canada
and
regardless
of
whether
the
terms
of
separation
were
agreed
to
by
Canada
(b) Division
of
powers
! The
most
obvious
way
to
redress
the
grievances
of
French
Canadians
and
SECESSION
REFERENCE
(1998)
-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐
western
Canadians
is
to
reduce
the
powers
of
the
federal
Parliament,
which
! Operation
of
Constitutional
Principles
in
the
Secession
Context
they
do
not
control,
and
to
increase
the
powers
of
the
provincial
Legislatures,
o Was
a
reference
by
the
federal
government
to
the
SCC,
in
which
the
which
they
do
control.
Court
was
asked
whether
Quebec
could
secede
unilaterally
! The
1982
amendments
made
only
one
change
in
the
division
of
powers
(separately,
individually)
from
Canada
between
the
2
levels
of
government,
and
that
was
an
increase
in
the
provincial
o SCC
held:
the
secession
from
Canada
of
a
province
could
not
be
power
over
natural
resources
undertaken
in
defiance
of
the
terms
of
the
Constitution
of
Canada.
the
principle
of
the
rule
of
law
or
constitutionalism
required
that
a
(c) Central
institutions
government,
even
one
mandated
by
a
popular
majority
in
a
! Different
approach
to
constitutional
change
concentrates
on
reforming
the
referendum,
must
still
obey
the
rules
of
the
Constitution
institutions
of
the
federal
government
so
that
regional
attitudes
and
interests
o A
secession
should
be
in
accordance
with
the
Constitution’s
are
more
effectively
represented
within
those
institutions
amending
procedures.
(not
clear
which
of
the
5
different
amending
! The
theory
is
that
the
more
effectively
these
attitudes
and
interests
are
procedures
is
the
correct
one)
represented
within
the
central
institutions
the
wider
is
the
range
of
powers
o Democratic
principles
demand
that
considerable
weight
be
given
to
that
may
be
conferred
on
central
institutions
a
clear
expression
by
the
people
of
Quebec
of
their
will
to
secede
from
Canada,
even
though
a
referendum,
in
itself
and
without
Page
8
of
86
more,
has
no
direct
legal
effect,
and
could
not
in
itself
bring
about
unilateral
secession
o the
federalism
principle,
in
conjunction
with
the
democratic
principle,
dictates
the
clear
rejection
of
the
existing
constitutional
order
and
the
clear
expression
of
the
desire
to
pursue
secession
by
the
population
of
a
province
would
give
rise
to
a
reciprocal
obligation
on
all
parties
to
Confederation
to
negotiate
constitutional
changes
to
respond
to
that
desire.
o The
conduct
of
the
parties
in
such
negotiations
would
be
governed
by
the
same
constitutional
principles
which
give
rise
to
the
duty
to
negotiate:
federalism,
democracy,
constitutionalism
and
the
rule
of
law,
and
the
protection
of
minorities
o any
attempt
to
effect
the
secession
of
a
province
from
Canada
must
be
undertaken
pursuant
to
the
Constitution
of
Canada,
or
else
violate
the
Canadian
legal
order.
However,
the
continued
existence
and
operation
of
the
Canadian
constitutional
order
cannot
remain
unaffected
by
the
unambiguous
expression
of
a
clear
majority
of
Quebecers
that
they
no
longer
wish
to
remain
in
Canada
o principle
of
effectiveness
! a
unilateral
declaration
of
independence
by
a
province
could
lead
to
a
de
facto
secession
,
which
might
take
place
without
the
required
agreement
or
the
required
amendment
–
such
a
secession
would
be
unconstitutional
–
however,
an
unconstitutional
secession
could
become
successful
if
the
seceding
government
achieved
effective
control
of
a
territory
and
recognition
by
the
international
community
Page
9
of
86
[3]
Federalism
&
Judicial
Review-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐
! In
Canada,
the
principle
has
rarely
been
invoked
in
political
discourse
! One
of
the
primary
goals
of
confederation
in
1867
was
to
preserve
a
Distribution
of
governmental
power
considerable
degree
of
autonomy
for
the
4
original
provinces
(a) Federalism
! Another
primary
goal-‐
to
provide
the
uniting
provinces
with
the
collective
! Canada
is
a
federal
state,
or
a
federation
benefits
of
an
economic
union,
greater
financial
strength
and
an
increased
! Federal
state=
governmental
power
is
distributed
between
a
central
(or
strength
capacity
for
defence
-‐-‐-‐to
these
ends
the
BNA
Act
1867
invested
the
national
or
federal)
authority
and
several
regional
(or
provincial
or
state)
federal
Parliament
with
authority
over
such
matters
as
customs
and
excise,
authorities,
in
such
a
way
that
every
individual
in
the
state
is
subject
to
the
laws
interprovincial
and
international
trade
and
commerce,
banking
and
currency,
of
two
authorities,
the
central
authority
and
a
regional
authority
all
forms
of
taxation
and
national
defence—this
was
consistent
with
the
! Central
authority
and
regional
authority
are
“coordinate”,
neither
is
principle
of
subsidiarity
subordinate
to
the
other
! Powers
over
criminal
law,
penitentiaries
and
marriage
and
divorce
were
! Alternatively,
unitary
state=
governmental
power
is
vested
on
one
national
entrusted
to
the
federal
level,
contrary
to
the
principle
of
subsidiarity
authority
! In
every
federation,
in
the
event
of
an
inconsistency
between
a
federal
and
Reasons
for
federalism
(Federation)
provincial
or
state
law
it
is
the
federal
or
national
law
which
prevails
! The
genesis
of
the
federal
system
in
Canada
was
a
political
compromise
between
proponents
of
unity
(who
would
have
preferred
a
legislative
union)
(b) Confederation
and
proponents
of
diversity
(who
were
unwilling
to
submerge
the
separate
! Canada
often
described
as
a
“confederation”.
Yet
it
is
a
unique
principle.
identities
of
their
provinces)
! In
Canada,
a
Central
government
was
established
and
was
independent
of
the
provinces
and
coordinated
with
them.
Advantages:
! In
a
country
that
cover
diverse
regions,
there
may
be
advantages
of
efficiency
(c) Legislative
union
and
accountability
in
dividing
the
powers
of
government
so
that
a
national
! UK
is
a
legislative
union
of
England,
Wales,
Scotland,
and
Northern
Ireland
government
is
responsible
for
matters
of
national
importance
and
provincial
or
! =
closest
possible
kind
of
union,
in
which
the
united
states
or
provinces
form
a
state
governments
are
responsible
for
matters
of
local
importance
new
unitary
state
which
incorporates
the
former
units
and
subjects
them
to
the
! A
province
or
state
may
serve
as
a
“social
laboratory”
in
which
new
kinds
of
authority
of
a
single
central
legislature.
legislative
programmes
can
be
“tested”-‐
if
a
new
programme
does
not
work
out,
the
nation
as
a
whole
has
not
been
placed
at
risk
–
social
credit,
medicare,
(d) Special
status
family
property
regimes,
-‐
no-‐fault
auto
insurance
! the
provinces
are
not
equal
in
wealth,
status
or
actual
power;
nor
is
their
! A
more
decentralized
form
of
government
can
be
expected
to
be
able
to
constitutional
situation
exactly
equal
identify
and
give
effect
to
different
preferences
and
interests
in
different
!
“special
status”
is
the
term
which
has
been
applied
to
proposals
for
parts
of
the
country.
constitutional
change
under
which
one
province
(most
likely,
Quebec)
would
! Facilitate
pursuit
of
collective
goals
by
cultural
and
linguistic
minorities
forming
possess
larger
powers
than
the
other
provinces
majority
in
province
(SCC-‐
Quebec
Secession
Reference)
! Avoids
one
large
bureaucracy
(e) Dominions
and
provinces
o Efficiency
! In
a
federal
state
it
is
necessary
to
find
suitable
vocabulary
to
describe:
o Allows
for
different
preferences
across
country
o Regional
authorities=
the
provinces
o The
following
2
have
not
been
satisfactorily
resolved:
! Central
authority=
the
Dominion
! Nation
as
a
whole=
Dominion
of
Canada
(f) subsidiary
! =
decisions
affecting
individuals
should,
as
far
as
reasonably
possible,
be
made
by
the
level
of
government
closest
to
the
individuals
affected
Page
10
of
86
Federalism
in
Canada
(Canada
as
a
Federal
Nation
! The
constitution
must
be
“supreme”,
meaning
that
it
must
be
binding
on
,
(a) The
terms
of
the
Constitution
and
unalterable
by,
each
of
the
central
and
regional
authorities
! BNA
Act
gives
the
provinces
only
enumerated
powers
to
make
laws,
giving
the
! As
well,
s
52(1)
of
the
Constitution
Act,
1982
expressly
affirms
the
supremacy
residue
of
power
to
the
federal
Parliament
(indication
framers
wanted
strong
over
all
other
laws
of
the
Constitution
of
Canada
central
government)
! s
91(2)-‐
federal
parliament
given
power
to
regulate
“trade
and
commerce”
Role
of
the
Courts
without
qualification
(a) development
of
judicial
review
! other
federal
parliament
powers/areas:
banking
(s
91(15);
marriage
and
! Provisions
of
a
constitution
distributing
legislative
power
will
be
couched
in
divorce
(s.91(26);
criminal
law
(s.
91(27);
and
penitentiaries
(s91(28)
general
language
which
cannot
possibly
be
free
from
doubt
or
ambiguity
–
so
! federal
parliament
was
given
by
s
91(3)
the
power
to
levy
indirect
as
well
as
there
will
be
disputes
whether
or
not
a
particular
legislative
body
has
the
direct
taxes
while
the
provinces
were
confined
by
s
92(2)
to
direct
taxes
power
to
enact
a
particular
statute
Proof
that
provinces
were
made
subordinate
in
situations
(non
federalist):
! any
federal
system
therefore
has
the
machinery
for
settling
disputes
about
the
! 90
–
Federal
govt
given
power
to
invalidate
provincial
statute.
distribution
of
legislative
power
! 92(1)-‐
provinces
were
denied
the
power
to
alter
that
part
of
their
constitution
! section
52(1)
stipulates
that
the
“Constitution
of
Canada”
is
the
“supreme
law
! S
93-‐
the
federal
government
was
given
the
power
to
determine
appeals
from
of
Canada”,
and
that
“any
law
is
inconsistent
with
the
provisions
of
the
provincial
decisions
affecting
minority
educational
rights,
and
the
federal
Constitution
is,
to
the
extent
of
the
inconsistency,
of
no
force
or
effect”.
parliament
was
given
the
power
to
enforce
a
decision
on
appeal
by
the
Section
52(1)
is
the
current
basis
of
judicial
review
in
Canada
enactment
of
“remedial
laws”
! Constitution
Act
1982
also
broadened
the
scope
of
judicial
review
by
adding
a
Therefore
–
Quasi
Federal
State
of
Canada
Charter
of
Rights
to
the
Constitution
of
Canada.
It
adds
an
additional
set
of
provisions
limiting
the
powers
of
legislative
bodies.
Those
limits
give
rise
to
(b) Judicial
interpretation
of
the
distribution
of
powers
judicial
review.
! believed
strongly
in
provincial
rights
and
they
established
precedents
that
elevated
the
provinces
to
coordinate
status
with
the
Dominion
and
gave
a
(b) Limitations
of
judicial
review
narrow
interpretation
to
the
principal
federal
powers
(the
residuary
power
and
! One
function
of
judicial
review
is
to
enforce
distribution
of
powers:
the
trade
and
commerce
power)
and
a
wide
interpretation
to
the
provincial
! The
rules
of
federalism:
whether
a
particular
statute
comes
within
the
powers
power
(over
property
and
civil
rights
in
the
province)
conferred
by
the
Constitution
of
the
legislative
body
that
enacted
the
statute:
if
the
statute
is
judicially
determined
to
be
outside
the
powers
conferred
upon
(c) Appointment
of
Lieutenant
Governors
the
enacting
body,
then
the
statute
is
ultra
vires
and
for
that
reason
is
invalid
nd
! the
federal
power
to
appoint
Lieutenant
Governors
is
another
apparent
breach
! 2
function
of
judicial
review:
to
enforce
the
Charter
restrictions
and
the
other
of
the
federal
principle.
This
power
is
regularly
exercised
by
the
federal
non-‐
federal
restrictions.
The
courts
often
have
to
decide
whether
a
statute
government,
but
once
an
appoint
is
made
the
Lieutenant
Governor
is
no
so
violates
a
constitutional
prohibition,
for
example,
by
unjustifiably
abridging
sense
the
agent
of
the
federal
government:
he
is
obliged
by
the
conventions
of
freedom
of
expression:
if
the
statute
is
judicially
determined
to
violate
the
responsible
government
to
act
on
the
advice
of
the
provincial
cabinet
prohibition,
then
the
statute
is
ultra
vires
and
for
that
reason
invalid
! Language
of
the
Constitution:
broad
/
vague-‐
rules
that
distribute
the
whole
(d)
Appointment
of
Judges:
range
of
legislative
power
occupy
only
a
few
pages
of
text,
as
does
the
charter-‐
-‐ s96
–
Fed
to
appoint
judges
to
higher
provincial
courts,
when
needed
to
be
the
scope
of
potential
governmental
activity
that
the
rules
address
is
so
filled.
Tradition
of
judicial
independence
is
so
strong
that
it
is
never
been
enormous
that
many
problems
will
be
overlooked
by
the
framers
of
the
text
seriously
claimed
that
fed-‐apointed
judges
would
favour
federal
governments.
! Therefore
courts
have
larger
discretionary
judgment
to
its
constitutional
decisions
–
as
Hughes
C.J.
of
the
US
Supreme
Court
made
in
his
celebrated
Supremacy
of
the
Constitution
mark:
“we
are
under
a
Constitution,
but
the
Constitution
is
what
the
judges
! The
constitution
(or
at
least
this
part
of
it)
must
be
in
writing,
because
such
a
say
it”
vital
matter
could
not
be
left
to
unwritten
understandings
(federal
principle).
! Canada’s
adoption
of
the
Charter
of
Rights
in
1982
was
a
conscious
decision
to
! Federal
constitutions
must
be
rigid
and
entrenched
(with
amending).
increase
the
scope
of
judicial
review
Page
11
of
86
! Where
there
is
a
distribution
of-‐powers
argument
and
a
Charter
argument
for
the
invalidity
of
a
law,
the
arguments
cannot
both
be
successful
! HOGG:
Federal
arguments
should
precede
Charter
ones.
If
you
are
arguing
[4]
Principles
of
Interpretation-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐
both
grounds,
you
should
frame
the
Charter
argument
as
one
“in
the
alternative”,
not
an
addition,
to
an
argument
based
on
a
federal
ground:
in
Judicial
Review
on
Federal
Grounds
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
! Federalism=
the
distribution
of
powers
between
a
central
authority
(federal
Parliament)
whether
the
law
is
consistent
with
the
charter
of
rights.
and
regional
authorities
(Provincial
Legislatures)
that
constitute
the
essence
of
a
federal
! The
priority
of
the
federal
ground
does
not
mean
that
a
court
deciding
a
constitution
constitutional
case
must
always
dispose
of
the
federal
issue
before
proceeding
! This
part
will
examine
the
doctrines,
techniques
and
the
language
employed
by
the
to
the
Charter
issue
courts
in
carrying
out
the
review
of
distribution
of
powers
questions
(i.e.
challenged
on
! The
court
can
decide
the
case
on
the
ground
that
seems
strongest
to
the
court
“federal
grounds”
! Another
point
in
favour
of
the
logical
priority
of
federalism
issues
over
Charter
! the
distribution
of
legislative
power
between
the
federal
Parliament
and
the
issues
is
the
presence
of
the
Charter
of
Rights
of
the
power
of
override.
provincial
Legislatures
is
mainly
set
out
in
ss
91
and
92
of
the
Constitution
Act,
o S
33
of
Charter-‐
enables
the
Parliament
or
a
Legislature
to
override
1867
most
of
the
provisions
of
the
Charter
by
including
in
a
statute
a
o s
91-‐
laws
competent
to
the
federal
Parliament
declaration
that
the
statute
is
to
operate
notwithstanding
the
o s
92-‐
laws
competent
to
the
provincial
Legislatures
relevant
provision
of
the
Charter.
Such
a
statute
is
then
valid,
despite
o both
sections
use
a
distinctive
terminology,
giving
legislative
authority
the
breach
of
the
Charter.
There
is
no
similar
saving
provision
for
a
in
relation
to
“matters”
coming
within
“classes
of
subjects”-‐
this
breach
of
the
federal
distribution
of
powers
terminology
emphasizes
and
helps
to
describe
the
2
steps
involved
in
the
PROCESS
of
judicial
review:
STEP
1:
Characterization
of
Law
.
STEP
1:
IDENTIFY
THE
“MATTER”
(OR
PITH
AND
SUBSTANCE)
OF
THE
(a) “Matter”
(pith
and
substance
“dominant
feature”)
CHALLENGED
LAW
=
THE
CHARACTERIZATION
OF
THE
CHALLENGED
LAW
! First
step
is
to
identify
the
matter
of
the
challenged
law,
ie.
Identify
the
dominant
or
most
important
characteristic
of
the
challenged
law
(the
PITH
AND
STEP
2:
TO
ASSISGN
THE
MATTER
TO
ONE
OF
THE
“CLASSES
OF
SUBJECTS”
(OR
st
SUBSTANCE)
(1
doctrine
of
federalism)
HEADS
OF
LEGISLATIVE
POWER)=
THE
INTERPRETATION
OF
THE
POWER-‐
o Yet
when
identifying
the
matter
of
law
courts
often
use
concepts
which
DISTRIBUTING
PROVISIONS
OF
THE
CONSTITUTION
will
assist
in
determining
to
which
head
of
power
it
should
be
allocated
(second
step):
often
settling
question
of
validity,
leaving
allocation
of
! 3
key
federalism
doctrines:
mater
to
class
a
formality.
o Pith
&
Substance:
is
the
law
valid?
! Purpose
of
identifying
the
“matter”
of
a
law:
to
determine
whether
the
law
is
o Interjurisdictional
Immunity
(“IJI”):
core
of
an
enumerated
power
is
constitutional
or
not.
immune
from
intrusion
by
other
government
! “pith
and
substance”
doctrine
enables
one
level
of
government
to
enact
laws
o Paramountcy:
is
the
provincial
law
inoperative
because
of
a
conflict
with
substantial
impact
on
matters
outside
its
jurisdiction
with
federal
law?
! Court
will
look
beyond
the
direct
legal
effects
to
inquire
into
what
the
actual
purpose
of
the
act
is
in
determining
who
will
regulate
it
Priority
between
Federal
and
Charter
Grounds
! Difficulty
is
where
a
statute
has
features
that
come
within
a
provincial
AND
! when
a
law
is
challenged
on
both
federal
and
Charter
grounds,
does
the
federal
head
of
power.
Here
you
make
a
judgment
as
which
is
the
most
Constitution
accord
priority
to
one
grounds
over
the
other?
important
feature
of
the
law
and
characterize
the
law
by
that
feature
(the
! S
52,
Constitution
Act
1982-‐
a
law
that
is
contrary
to
any
provision
of
the
dominant
feature
is
the
“pith
and
substance”
or
“matter”
of
the
law;
the
other
Constitution
of
Canada
is
“of
no
force
or
effect”.
Both
the
federal
distribution
feature
is
merely
incidental)
of
powers
and
the
Charter
of
Rights
are
part
of
the
“Constitution
of
Canada”
Page
12
of
86
! This
distinction
is
commonly
expressed
by
using
the
phrase
“in
relation
to”.
For
federal
Parliament’s
power
over
criminal
law
(the
Act
was
actually
struck
down
example
the
challenged
act
was
“in
relation
to
X”
and
merely
“affected”
Y
for
breach
of
the
Charter
of
Rights)
! There
are
many
examples
of
laws
which
have
been
upheld
despite
their
o Criminal
character
of
the
Act
flowed
from
its
purpose,
which
was
the
“incidental”
impact
on
matters
outside
the
enacting
body’s
jurisdiction
religious
one
of
“the
preservation
of
the
sanctity
of
the
Christian
o ie
a
federal
law
in
relation
to
navigation
and
shipping
(federal
matter)
Sabbath”.
(Determined
via
history
and
name
of
Act).
may
validly
regulate
labour
relations
in
a
port
(provincial
matter)
o The
court
acknowledged
that
if
the
purpose
of
the
statute
had
not
been
(Stevedores
Reference
1955)
religious
“but
rather
the
secular
goal
of
enforcing
a
uniform
day
of
rest
! Essentially,
2
things
must
be
examined:
the
purpose
of
the
enacting
body
and
from
labour”
then
the
Act
would
have
fallen
under
provincial
rather
then
the
legal
effect
of
the
law
(Reference
re
Firearms
Act)
federal
competence
! R
v
Edwards
Books
(purpose
being
secular,
for
rest
of
retail
workers,
falling
(b) Singling
out
under
property
and
civil
rights
s92).
! There
a
number
of
cases
in
which
provincial
laws
have
been
upheld,
! To
determine
the
purpose,
courts
can
look
to:
notwithstanding
that
the
laws
singled
out
a
person
or
class
of
persons
within
o 1.
The
preamble
federal
jurisdiction
o 2.
The
intention
of
the
legislative
body
that
drafted
the
statute
! For
example,
a
taxing
statute,
although
it
applied
to
other
corporations
as
well
o 3.
The
mischief
that
the
law
is
trying
to
rid/correct
as
banks,
did
impose
a
special
rate
of
tax
on
banks
alone;
yet
the
law
was
! BUT
must
look
to
true
purpose,
not
necessarily
the
stated
purpose
(CANADIAN
characterized
as
“in
relation”
to
taxation,
not
banking
(Bank
of
Toronto
v.
WESTERN
BANK)
Lambe)
! EXCEPTION
to
the
general
rule
that
a
provincial
law
of
general
application
(e) Effect
which
is
in
relation
to
a
provincial
matter
may
validly
affect
federal
matters
as
! In
characterizing
a
statute-‐
identifying
its
“matter”
or
“pith
and
substance”-‐
a
well.
"
if
a
provincial
law
is
valid
in
the
generality
of
its
applications,
but
in
court
will
always
consider
the
effect
of
the
statute,
in
the
sense
that
the
court
effect
impairs
the
status
or
essential
powers
of
a
federally-‐
incorporated
will
consider
how
the
statute
changes
the
rights
and
liabilities
of
those
who
are
company,
or
to
affect
a
vital
part
of
a
federally-‐
regulated
enterprise,
it
will
not
subject
to
it
apply
to
the
federally
–
incorporated
company
or
federally
regulated
enterprise
(f) Efficacy
(c) Double
aspect
doctrine
(or
double
matter)
! In
characterizing
a
statute
for
the
purpose
of
judicial
review
on
federal
grounds,
! Some
matters
cannot
be
categorized
under
a
single
head
of
power
(ie
they
may
look
at
the
purpose
of
the
statute
and
the
effects
of
the
statute"
however
have
both
a
provincial
and
federal
aspect)
reviewing
court
should
not
pass
judgment
on
the
likely
efficacy
of
the
statute
o I.e-‐
dangerous
driving:
punishment
of
a
crime
-‐public
order,
criminal
! Re
Firearms
Act
(2000):
efficacy
was
a
matter
for
Parliament,
NOT
the
court:
(federal)
(s91(27);
conduct
on
the
roads=
property
and
civil
rights
“Parliament
is
the
judge
of
whether
a
measure
is
likely
to
achieve
its
intended
(provincial)(s92(13)
purpose;
efficaciousness
is
not
relevant
to
the
Court’s
division
of
powers
o Gives
rise
to
the
possibility
of
conflict
between
a
valid
federal
law
and
a
analysis”
valid
provincial
law.
o Resolution
of
such
conflicts
in
favour
of
the
federal
law
is
the
function
of
(g) Colourability
doctrine
(cloaking
legislations
real
purpose)
the
“federal
paramountcy”
! Invoked
when
a
statute
bears
the
formal
trappings
of
a
matter
within
! Doctrine
used
in
areas
where
judges
show
restraint.
When
both
characteristics
jurisdiction
but
in
reality
is
addressed
to
a
matter
outside
jurisdiction
are
roughly
equal
in
importance
(could
be
by
both
fed
/
prov)
[Hogg]
! Applies
to
the
maxim,
that
a
Legislature
body
cannot
do
indirectly
what
it
cannot
do
directly
(d) Purpose
! Alberta
Bank
Taxation
Reference-‐
colourability
is
rarely
successful
! Legislative
purpose
in
characterizing
the
matter
of
an
alleged
law
is
important:
o The
legislation,
although
ostensibly
designed
as
a
taxation
measure,
was
Court
will
look
beyond
the
legislative
effect
at
the
laws
purpose
(goals).
in
reality
directed
at
banking
! In
R.
v.
Big
M
Drug
Mart
(1985)
the
SCC
held
that
federal
Lord’s
Day
Act,
which
prohibited
various
commercial
activities
on
Sundays,
was
a
valid
exercise
of
the
Page
13
of
86
!An
examination
of
the
actual
effect
is
useful
in
determining
if
the
law
was
! A
“severance
clause”
is
a
section
of
a
statute
that
provides
that
if
any
part
of
“colourable”.
That
is,
whether
the
law,
in
substance,
addresses
a
matter
the
statute
is
judicially
held
to
be
unconstitutional,
the
remainder
of
the
Act
is
completely
different
from
what
the
law
addresses
in
form.
to
continue
to
be
effective
! For
example,
in
R.
v.
Morgentaler
the
province
of
Nova
Scotia
passed
a
law
! Rule
that
the
courts
have
developed
is
that
severance
is
inappropriate
when
prohibiting
abortion
clinics
under
the
guise
that
it
was
protecting
health
the
remaining
good
part
“is
so
inextricably
bound
up
with
the
part
declared
services
(hospitals
92.7
and
property
and
civil
rights
92.16),
when
in
substance
invalid
that
what
remains
cannot
independently
survive”;
they
were
attempting
to
ban
abortions
(criminal-‐
federal
power)
! On
the
other
hand,
where
the
2
parts
can
exist
independently
of
each
other,
then
severance
is
appropriate
(h) Criteria
of
Choice
! Privy
council
usually
struck
down
the
entire
statute
once
an
adverse
! When
you
have
several
possible
dominant
purposes
(ie
matter),
how
to
choose
conclusion
has
been
reached
as
to
the
constitutionality
of
part
which
is
the
pith
and
substance?
! Severance
is
more
common
in
Charter
cases
than
in
federalism
cases
! Can
look
at
(i)
legislative
scheme/
relevant
extrinsic
material;
(ii)
judicial
! highly
unusual
that
an
entire
statute
is
struck
down
under
the
Charter
of
decisions
on
similar
kinds
of
statutes;
(iii)
policy
Rights
! Policy:
THE
CHOICE
MUST
BE
GUIDED
BY
A
CONCEPT
OF
FEDERALISM-‐
is
this
! Only
one
Charter
case
where
SCC
struck
down
an
entire
statute:
R
v
Big
M
the
kind
of
law
that
should
be
enacted
at
the
federal
level
or
provincial
level?
Drug
Mart
! Judicial
restraint
must
be
invoked.
(2)
Reading
Down
(i) Presumption
of
Constitutionality
! A
statute
is
to
be
interpreted
more
narrowly,
when
possible,
as
to
keep
it
! Judicial
restraint
in
determining
the
validity
of
statutes
may
be
expressed
in
within
the
scope
of
the
power
of
the
enacting
legislative
body.
terms
of
a
“presumption
of
constitutionality”
! General
language
in
statute
that
can
extend
beyond
the
power
of
enacting
! burden
is
on
those
who
would
challenge
the
validity
of
a
statute
legislature/parliament
will
be
construed
narrowly
to
keep
it
in
scope.
! Carries
3
legal
consequences:
! Only
available
when
language
can
bare
(valid)
limited
meaning
and
(invalid)
1.
In
choosing
between
competin
characterizations
of
a
law,
the
court
should
extended
meaning:
limited
meaning
be
selected.
normally
choose
that
one
that
would
support
the
validity
of
the
law
2.
Where
the
validity
of
a
law
requires
a
finding
of
fact
(for
example,
the
Consequences
of
Judicial
Review:
existence
of
an
emergency),
that
finding
of
fact
need
not
be
proved
strictly
• Law
which
applies
to
matter
outside
of
the
jurisdiction
of
enacting
body
may
by
the
government;
it
is
enough
that
there
be
a
‘rational
basis’
for
the
be
attacked
in
3
ways:
finding
1. Validity
of
law
[matter
or
pith/subst
comes
in
class
of
subjects
outside
3.
Where
a
law
is
open
to
both
a
narrow
and
a
wide
interpretation
and
under
jurisdiction
of
enacting
body]
the
wide
interpretation
the
law’s
application
would
extend
beyond
the
2. Applicability
of
law
[valid
in
most
applications
but
should
be
interpreted
to
powers
of
the
enacting
legislative,
the
court
should
“read
down”
the
law
as
not
apply
to
the
matter
that
is
outside
of
its
jurisdiction
of
enacting
body]
to
confine
it
to
those
applications
that
are
within
the
power
of
the
enacting
3. Inoperative
[argued
through
doctrine
of
Paramouncy,
federal
prevails]
legislative
body
! Where
a
law
is
challenged
on
Charter
grounds,
as
opposed
to
federal
grounds,
STEP
2:
INTERPRETATION
OF
CONSTITUTION
[POWERS]
.
rd
there
is
no
presumption
of
constitutionality,
except
for
the
3
doctrine,
(a) Relevance
“reading
down”
which
also
applies
in
charter
cases
! Once
the
matter
(or
pith
and
substance)
of
a
challenged
law
has
been
nd
identified,
the
2
stage
in
judicial
review
is
to
assign
the
matter
to
one
of
the
MITIGATION
OF
JUDICIAL
REVIEW:
“classes
of
subjects”
(or
heads
of
legislative
power)
specified
in
the
Constitution
(1)
Severance
! The
question
arises
whether
the
court
should
‘sever”
the
bad
part,
thereby
(b) Exclusiveness
preserving
the
good
part,
or
whether
the
court
should
declare
the
entire
! Each
list
of
classes
of
subjects
in
s.
91
or
92
of
the
Constitution
Act,
1867
is
statute
to
be
bad
exclusive
to
the
Parliament
or
Legislature
to
which
it
is
assigned
Page
14
of
86
! This
means
that
a
particular
“matter”
will
come
within
a
class
of
subjects
on
(e) Exhaustiveness
only
one
list
! The
distribution
of
powers
between
the
federal
Parliament
and
the
provincial
! Some
laws
are
available
to
both
levels,
but
that
is
because
such
laws
have
a
Legislatures
is
exhaustive
double
aspect
(or
2
matters)
[double
aspect
doctrine]
not
because
! There
are
exceptions
to
the
doctrine
of
exhaustive
distribution,
including
the
subjects/classes
overlap
with
each
other.
subjects
protected
by
the
Charter
of
Rights
! Any
matter
which
does
not
come
within
any
of
the
specific
classes
of
subjects
(c) Ancillary
power
will
be:
! Constitution
of
Canada
does
not
include
an
ancillary
power
in
the
enumerated
o Provincial
if
"
it
is
merely
local
or
private
(s
92(16))
and
will
be
powers
of
either
the
federal
Parliament
or
the
provincial
Legislatures.
o Federal
if
"
it
has
a
national
dimension
(s
91,
opening
words).
(s
! Definition
in
USA:
“power
to
make
all
laws
which
are
necessary
for
carrying
91
gives
the
federal
Parliament
the
residuary
power
“to
make
laws
for
into
execution
enumerated
powers”
the
peace,
order,
and
good
government
of
Canada,
anything
not
! The
pith
and
substance
doctrine
enables
a
law
that
is
classified
as
“in
relation
exclusively
assigned
to
the
Legislatures
of
the
Provinces”)
to”
a
matter
within
the
competence
of
the
enacting
body
to
have
incidental
or
! Saumur
v
Quebec:
articulated
this
doctrine
as
one
reason
for
striking
down
a
ancillary
effects
on
matters
outside
the
competence
of
the
enacting
body
municipal
by
law
that
forbade
the
distribution
of
literature
on
the
streets
of
! if
a
certain
provision
of
a
larger
statutory
scheme
is
being
challenged-‐
you
Quebec
City
without
the
permission
of
the
chief
of
police
need
to
look
at
the
ancillary
doctrine
o The
absence
of
any
standards
in
the
by-‐law
to
guide
the
chief
of
o if
the
larger
legislative
scheme
is
valid,
then
the
impugned
provision
may
police’s
discretion
was
by
itself
fatal
to
the
validity
of
the
by-‐law.
also
be
found
to
be
valid
because
of
its
relationship
to
the
larger
scheme
Without
more
precision
in
the
drafting
of
the
by-‐law,
it
was
by
way
of
this
doctrine
impossible
to
classify
it
as
in
relation
to
any
particular
matter
TEST:
Measure
the
degree
of
infringement
of
the
impugned
provision
on
the
other
government’s
sphere
of
power
(the
more
significant
the
(f) Progressive
interpretation
[words
not
always
defined
as
they
were
in
1867]
infringement,
the
more
strict
the
test
it),
and
then
must
determine
how
! The
words
of
the
act
are
to
be
given
a
“progressive
interpretation”,
so
that
necessary
the
impugned
provision
is
to
the
otherwise
valid
scheme:
they
are
continuously
adapted
to
new
conditions
and
new
ideas
(i)
For
MINOR
encroachments,
the
rational
connection
test
is
! Same-‐Sex
Marriage
Reference
2004:
the
court
said
the
constitution
“is
a
appropriate
living
tree
which,
by
way
of
progressive
interpretation,
accommodates
and
(ii)
For
MAJOR
encroachments,
a
stricter
test
(“truly
necessary”)
is
addresses
the
realities
of
modern
life”
appropriate
(General
Motors
v
City
National
Leasing
1989)
–
! The
idea
that
Constitution
Act
1867,
is
a
“constituent”
or
“organic”
statute,
Dickson
CJ
which
has
to
provide
the
basis
for
the
entire
government
of
a
nation
over
a
"
HOGG:
“test
is
not
satisfactory,
if
a
provision
is
rational/functional
part
of
federal
long
period
of
time.
It
is
not
an
ordinary
statute
–
which
is
more
restrictive
to
legislation
why
should
it
be
regarded
as
‘encroaching’
on
provincial
interpretation.
powers?
Claims
this
approach
creates
unpredictability.
Claims
that
the
rational
connection
test
is
to
be
preferred
to
stricter
alternatives
(essential
(g) Unwritten
constitutional
principles
or
necessary
tests)
because
it
is
less
strict.
Liberal
test
respects
limits
! Even
if
the
world
remained
the
same,
the
courts
would
still
have
to
apply
the
imposed
by
constitutions
distribution
of
powers.
text
to
unpredictable
human
and
institutional
behavior
! The
Constitution
of
Canada
is
constructed
on
a
set
of
unwritten
or
implicit
(d) Concurrency
(happening
together)
–
exceptions
to
exclusiveness
of
powers
principles
that
have
profoundly
influenced
the
drafting
of
the
text
and
that
! There
are
3
provisions
that
explicitly
confer
concurrent
powers:
continue
to
influence
its
interpretation
1.
s
92(A)
of
Constitution
Act
1867
(added
in
1982)
natural
resources
(provincial)
! Democracy,
the
rule
of
law,
the
independence
of
the
judiciary,
the
protection
power
is
concurrent
with
the
federal
Parliament’s
trade
and
commerce
power
of
civil
liberties
and
federalism
are
among
those
principles
2.
S
94(A)-‐
old
age
pensions
and
supplementary
benefits
(federal)
concurrent
! i.e.
Succession
Reference
example.
Or
RE
Remuneration
of
Judges.
with
acknowledgement
of
provincial
existence
3.
S
95
-‐concurrent
powers
over
agriculture
and
immigration
Page
15
of
86
Interjurisdictional
Immunity
(‘IJI’)
(2nd
doctrine
of
federalism)
pith
and
substance
doctrine
would
prevail,
enabling
the
provincial
law
to
! Another
way
(alternative
to
the
pith
and
substance)
of
attacking
a
law
is
by
apply
to
the
core
of
the
federal
subject
=
[this
is
the
NEWEST
TEST]
characterizing
the
law
as
coming
within
a
class
of
subjects
that
is
outside
the
o Only
if
the
provincial
law
would
“impair”
the
core
of
the
federal
subject,
jurisdiction
of
the
enacting
legislative
body,
and
to
argue
that
the
law
should
be
would
interjurisdictional
immunity
apply.
INTERPRETED
(ie
read
down)
so
as
not
to
apply
to
the
matter
that
is
outside
the
o The
majority
indicated
a
strong
preference
for
the
pith
and
substance
jurisdiction
of
the
enacting
body.
If
this
argument
succeeds,
the
law
isn’t
invalid,
doctrine
as
the
default
position
when
otherwise
valid
provincial
laws
but
is
simply
INAPPLICABLE
to
the
extra-‐
jurisdictional
matter
intruded
into
federal
matters.
This
was
on
the
basis
that
“a
court
should
favour,
where
possible,
the
ordinary
application
of
statutes
enacted
by
(a) Definition
of
Interjurisdictional
Immunity
both
levels
of
government.
! Does
not
have
a
precise
meaning
o interjurisdictional
immunity
should
be
applied
“with
restraint”
! A
law
that
purports
to
apply
to
a
matter
outside
the
jurisdiction
of
the
enacting
legislative
body
may
be
attacked
in
3
different
ways:
(c) Provincial
subjects
! The
doctrine
of
interjurisdictional
immunity
ought
to
be
reciprocal,
protecting
1.
The
validity
of
the
law
provincial
subjects
from
incursion
by
federal
laws.
This
is
because
provincial
! Argue
that
the
law
is
invalid,
because
the
matter
of
the
law
(or
its
pith
and
heads
of
power
in
s
92
of
the
Constitution
Act
1867
are
just
as
exclusive
as
the
substance)
comes
within
a
class
of
subjects
that
is
outside
the
jurisdiction
federal
heads
in
s
91
2.
The
applicability
of
the
law
! to
acknowledge
that
the
law
is
valid
in
most
of
its
applications,
but
to
argue
# Distinguish
between
pith
and
substance
analysis
and
interjurisdictional
that
the
law
should
be
interpreted
so
as
not
to
apply
to
the
matter
that
is
immunity
outside
the
jurisdiction
of
the
enacting
body
# The
latter
is
used
sparingly
by
courts;
should
normally
rely
on
pith
and
substance
! If
this
arguments
succeeds,
the
law
is
no
held
to
be
invalid,
but
simply
analysis
INAPPLICABLE
to
the
extra-‐jurisdictional
matter
! The
technique
for
limiting
the
application
of
the
law
to
matters
within
jurisdiction
is
the
reading
down
doctrine
REQUIRED
CASES
FOR
PRINCIPLES
OF
INTERPRETATION:
3.
The
operability
of
the
law
! Argue
that
the
law
is
INOPERATIVE
through
the
doctrine
of
paramountcy
! Doctrine
of
paramountcy:
where
there
are
inconsistent
federal
and
CANADIAN
WESTERN
BANK
v.
ALBERTA
[2007]
provincial
laws,
it
is
the
federal
law
that
prevails;
paramountcy
renders
the
FACTS:
provincial
law
inoperative
to
the
extent
of
the
inconsistency
• AB
enacted
changes
to
Insurance
Act
making
federal
banks
subject
to
provincial
licensing
schemes
via
promotion
of
insurance
products.
! Paramouncty
is
a
form
of
attack
available
only
against
a
provincial
law,
and
• Banks
argued:
1)
their
promotion
of
insurance
via
the
Bank
Act
was
“banking”
in
s91(15)
then
only
when
there
is
a
conflicting
federal
law
in
existence
CA1867.
AND
2)
The
Insurance
Act
were
inapplicable
by
virtue
of
doctrine
of
IJI
and
Paramouncy.
(b) Rationale
of
Interjurisdictional
Immunity
ISSUE:
! Interjurisdictional
immunity
cases
do
not
concern
provincial
laws
that
single
out
• What
extent
to
which
banks,
as
federally
regulated
financial
institutions,
must
comply
federal
undertakings,
works,
persons
or
services
for
special
treatment
with
provincial
laws
regulating
the
promotion
and
sale
of
insurance.
! In
CANADIAN
WESTERN
BANK
the
SC
accepted
Beetz
J’s
rationale
for
the
HELD:
interjurisdictional
immunity
doctrine,
and
in
particular
the
need
to
protect
a
• Insurance
Act
=
valid
exercise
of
provincial
powers
under
s92(13)
as
within
property
“basic,
minimum
and
unassailable”
core
of
each
head
of
legislative
power,
and
civil
rights.
rooted
in
the
exclusivity
of
each
head
of
power
in
ss.
91
and
92
of
the
• Interjurisdictional
immunity
fails
because
insurance
is
not
“at
the
core”
of
banking,
it
is
Constitution
Act
1867
not
vital
or
essential
element
of
the
banking
undertaking,
and
• Federal
Paramouncy
does
not
apply
because
there
is
no
operational
conflict
between
o However,
the
MAJORITY
narrowed
the
doctrine
by
insisting
that,
if
a
federal
and
provincial
law.
provincial
law
merely
affected
(without
having
an
adverse
effect
on)
the
core
of
a
federal
subject,
then
the
doctrine
did
not
apply.
In
that
case
the
Page
16
of
86
REASONING:
legislation
on
a
single
subject
depending
on
the
perspective
from
which
the
legislation
is
Federalism
considered,
that
is,
depending
on
the
various
“aspects”
of
the
“matter”
in
question.
! Constitutional
doctrines
permit
an
appropriate
balance
to
be
struck
in
the
recognition
and
management
of
the
inevitable
overlaps
in
rules
made
at
the
two
levels
of
legislative
! In
certain
circumstances,
the
powers
of
one
level
of
government
must
be
protected
power,
while
recognizing
the
need
to
preserve
sufficient
predictability
in
the
operation
against
intrusions,
even
incidental
ones,
by
the
other
level.
For
this
purpose,
the
courts
of
the
division
of
powers
have
developed
two
doctrines:
Assessing
the
constitutionality
of
legislation:
[legal
challenges
to
legislation
follow
these
steps:
[a]
Interjurisdictional
Immunity
doctrine:
1. Pith
and
substance
of
the
provincial
law
and
the
federal
law
should
be
examined
to
o Interjurisdictional
immunity,
recognizes
that
our
Constitution
is
based
on
an
ensure
that
they
are
both
valid
and
to
determine
the
overlap,
if
any,
between
them.
allocation
of
exclusive
powers
to
both
levels
of
government,
not
concurrent
2. The
applicability
of
the
provincial
law
to
the
federal
undertaking
or
matter
in
question
powers,
although
these
powers
are
bound
to
interact
in
the
realities
of
the
life
of
must
be
resolved
with
reference
to
the
doctrine
of
interjurisdictional
immunity.
our
Constitution.
3. If
both
the
provincial
law
and
the
federal
law
have
been
found
to
be
valid,
and
only
if
the
o However,
a
view
of
federalism
that
puts
greater
emphasis
on
the
legitimate
provincial
law
is
found
to
be
applicable
to
the
federal
matter,
then
both
statutes
must
be
interplay
between
federal
and
provincial
powers
was
championed
by
the
late
compared
to
determine
whether
the
overlap
between
them
constitutes
a
conflict
Chief
Justice
Dickson,
who
described
the
doctrine
of
interjurisdictional
immunity
sufficient
to
trigger
the
application
of
the
doctrine
of
federal
paramountcy.
as
“not
.
.
.
particularly
compelling.
In
our
view,
the
sweeping
immunity
argued
for
by
the
banks
in
this
appeal
is
not
acceptable
in
the
Canadian
federal
Pith
and
Substance
Doctrine:
structure.
• The
resolution
of
a
case
involving
the
constitutionality
of
legislation
in
relation
to
the
o The
Court
identifies
a
number
of
problems
with
invoking
the
doctrine
division
of
powers
must
begin
with
an
analysis
of
the
pith
and
substance
of
the
! Broad
use
of
the
doctrine
would
be
inconsistent
with
the
flexible
federalism
impugned
legislation.
The
courts
must
be
able
from
its
language
and
its
relevant
that
the
constitutional
doctrines
of
pith
and
substance,
double
aspect
and
circumstances,
to
attribute
an
enactment
to
a
matter
in
relation
to
which
the
legislature
federal
paramountcy
are
designed
to
promote.
Must
recognize
that
acting
has
been
empowered
to
make
laws.
overlapping
powers
are
unavoidable
• Legislation
whose
pith
and
substance
falls
within
its
jurisdiction
may
affect
matters
! A
broad
use
of
the
doctrine
of
interjurisdictional
immunity
runs
the
risk
of
beyond
the
jurisdiction
without
necessarily
being
unconstitutional.
At
this
stage
of
the
creating
an
unintentional
centralizing
tendency
in
constitutional
analysis,
the
dominant
purpose
of
the
legislation
is
still
decisive.
interpretation.
The
“asymmetrical”
application
of
interjurisdictional
• Merely
incidental
effects
do
not
disturb
the
constitutionality
of
otherwise
intra
vires
law.
immunity
is
incompatible
with
the
flexibility
and
co-‐ordination
required
by
! STEPS:
To
determine
the
pith
and
substance:
contemporary
Canadian
federalism
(1)
The
PURPOSE
of
the
enacting
body:
Can
look
to
intrinsic
evidence
(e.g.
o Interjurisdictional
immunity
should
in
general
be
reserved
for
situations
already
preamble/purpose
clauses,
and
extrinsic
evidence).
Must
look
to
TRUE
PURPOSE
covered
by
precedent.
though,
not
necessarily
the
stated
purpose
(2)
The
LEGAL
EFFECT
of
the
law:
E.g.,
in
Attorney-‐General
for
Alberta
v.
Attorney-‐ The
Doctrine
of
Federal
Paramountcy:
General
for
Canada,
[1939]
the
Privy
Council
held
a
provincial
statute
levying
a
tax
! Federal
paramountcy
=
when
the
operational
effects
of
provincial
legislation
are
on
banks
to
be
invalid
on
the
basis
that
its
effects
on
banks
were
so
great
that
its
incompatible
with
federal
legislation,
the
federal
legislation
must
prevail
and
the
true
purpose
could
not
be
(as
the
province
argued)
the
raising
of
money
by
levying
provincial
legislation
is
rendered
inoperative
to
the
extent
of
the
incompatibility.
a
tax
(in
which
case
it
would
have
been
intra
vires),
but
was
rather
the
regulation
of
! The
doctrine
of
federal
paramountcy
is
also
inapplicable
because
neither
operational
banking
(which
rendered
it
ultra
vires,
and
thus
invalid)
incompatibility
nor
the
frustration
of
a
federal
purpose
have
been
made
out.
! Here,
the
pith
and
substance
of
the
Alberta
Insurance
Act
relates
to
property
and
civil
! Since
2000,
the
banks
have
been
promoting
insurance
in
Alberta
while
complying
with
rights
in
the
province
under
s.
92(13)
of
the
Constitution
Act,
1867,
and
is
a
valid
both
the
federal
Bank
Act
and
the
provincial
Insurance
Act.
This
is
not
a
case
where
the
provincial
law.
The
mere
fact
that
the
banks
now
participate
in
the
promotion
of
provincial
law
prohibits
what
the
federal
law
permits.
The
federal
legislation
is
insurance
does
not
change
the
essential
nature
of
the
insurance
activity,
which
permissive
not
exhaustive,
and
compliance
by
the
banks
with
the
provincial
law
remains
a
matter
generally
falling
within
provincial
jurisdiction
complements,
not
frustrates,
the
federal
purpose
The
Double
Aspect
Doctrine:
• The
double
aspect
doctrine
applies
within
the
course
of
the
pith
and
substance
analysis.
It
recognizes
that
both
Parliament
and
the
provincial
legislatures
can
adopt
valid
Page
17
of
86
QUEBEC
(AG
)
v.
CANADIAN
OWNERS
AND
PILOTS
ASSOCIATION
[2010]
R
v
MORGENTALER,
[1993]
–
not
the
1998
SCC
decision.
FACTS:
Morgentaler
challenged
the
constitutionality
of
a
Nova
Scotia
law
prohibiting
the
FACTS:
An
aerodrome,
registered
under
the
federal Aeronautics
Act,
was
constructed
on
performance
of
abortions
outside
of
a
hospital
on
the
grounds
that
it
was
ultra
land
zoned
as
agricultural
(s92)
in
the
province
of
Quebec.
Since
the
Prov
vires.
Also
claimed
violate
s7
life
liberty
security
of
women.
Commission’s
permission
was
not
obtained
prior
to
constructing
the
aerodrome,
the
Commission
ordered
the
return
of
the
land
to
its
original
state.
The
ISSUE:
[1]
Is
the
Nova
Scotia
Medical
Services
Act
and
the
regulation
made
under
the
act
Commission’s
decision
was
challenged
on
the
ground
that
aeronautics
is
within
ultra
vires
the
province
of
Nova
Scotia
on
the
grounds
that
they
are
in
pith
and
federal
jurisdiction
&
not
agriculture.
substance
criminal
law?
YES
[2]
Whether
s251
violates
rights
(s7
–
life
liberty)
guaranteed
by
the
Charter?
If
so,
COURTS:
The
Admin
Tribunal
of
Quebec,
the
Court
of
Quebec
and
the
Superior
Court
of
is
it
justifiable
under
s1
of
the
Charter?
Quebec
all
upheld
the
Commission's
decision,
but
the
Quebec
COA
found
that
interjurisdictional
immunity
precluded
the
Commission
from
ordering
the
ARGUES:
Nova
Scotia
argues
that
the
regulation
deals
with
hospitals,
health,
and
the
medical
dismantling
of
the
aerodrome.
profession,
which
is
within
provincial
jurisdiction.
Morgentaler
argues
that
the
regulation
is
in
pith
and
substance
related
to
crim
law.
HELD:
The
appeal
was
dismissed
–
agreed
with
COA.
1. Provincial
laws
designating
agricultural
land
were
in
pith
and
substance
intra
vires
REASONS:
Sopinka
J
provincial
jurisdiction,
by
virtue
of
ss.
92(13),
(16)
and
95
• The
province
is
limited
to
legislating
with
regards
to
the
heads
of
power
outlined
in
s.92.
2. But,
its
incidental
effects
of
its
application
impaired
the
“core”
of
the
federal
jurisdiction
• Classification
of
a
law
for
purposes
of
federalism
involve
first
identifying
the
matter
of
over
aeronautics
under
POGG
[ability
to
determine
location]
the
law
(as
evidenced
by
it’s
purpose,
legal
and
practical
effects),
and
then
assigning
it
to
3. Provincial
law
was
deemed
inapplicable
by
virtue
of
doctrine
of
Interjurisdictional
one
of
the
classes
of
subjects
in
respect
to
which
the
federal
and
provincial
governments
immunity,
under
a
two-‐part
test
that
was
stated
by
McLachlin
CJ:
have
legislative
authority
under
ss.
9
&
92
of
the
constitution
act.
• Example
of
a
colourable
law:
The
court
determined
that
the
legislation
on
its
face
st
1
step
Is
to
determine
whether
the
provincial
law
...
trenches
on
the
protected
“core”
of
a
addresses
matters
that
are
within
its
jurisdiction,
but
are
in
pith
and
substance
directed
federal
competence.
If
It
does…
at
matters
outside
its
jurisdiction
nd
2
step
is
to
determine
whether
the
provincial
law’s
effect
on
the
exercise
of
the
protected
federal
power
is
sufficiently
serious
to
invoke
the
doctrine
of
interjurisdictional
SCC
DECISION:
1998
(not
relevant
for
federal
question)
Dickson
J
immunity.
Section
251
of
the
Criminal
Code
did
violate
section
7
of
the
Charter.
• S251
violated
in
two
ways:
(1)
disallowing
women
from
access
to
safe
medical
! While
ARPALAA
is
valid
provincial
legislation,
it
is
inapplicable
to
the
extent
that
it
procedure
unless
they
meet
criteria
that
is
not
their
own.
(2)
Women
must
go
through
impacts
the
federal
power
over
aeronautics.
The
federal
aeronautics
jurisdiction
process
to
meet
criteria,
causing
delays
and
increased
mortality
rates
and
psychological
encompasses
not
only
the
regulation
of
the
operation
of
aircraft
and
airports,
but
also
impact.
Claimed
this
was
breach
of
fundamental
justice.
the
power
to
determine
the
location
of
airports
and
aerodromes.
This
power
is
• Held
that
it
was
not
proportionate
as
per
s1
test.
essential
to
aeronautics
and
lies
in
core
of
federal
aeronautic
residual
powers.
REASONS:
Dissent
(McIntyre
&
La
Forest)
!
In
those
cases
where
the
doctrine
applies,
it
serves
to
protect
the
immunized
core
of
• S251
not
violate
charter
s7.
The
Court
did
not
have
the
exclusive
right
to
decide
the
federal
power
from
any
provincial
impairment.
substance
of
s.
7
(what
rights
the
section
protects.).
Further,
no
positive
right
of
abortion
is
found
in
Canada.
Historically
clear
right
to
protect
feotus
–
which
was
the
The
doctrine
of
paramountcy
would
permit
Parliament
to
legislatively
override
provincial
purpose
of
s251.
zoning
legislation
for
the
purpose
of
establishing
aerodromes
• McIntyre
concluded
that
s.
251
was
within
federal
jurisdiction.
He
agreed
with
the
! The
doctrine
of
federal
paramountcy
would
not
apply
in
this
case
Ontario
Court
of
Appeal
that
the
challenged
legislation
was
not
for
the
protection
of
! Here,
there
was
no
operational
conflict,
since
the
federal
legislation
did
not
require
the
health
and
therefore
it
was
not
within
provincial
competence
in
such
a
way
as
to
construction
of
an
aerodrome
and
it
is
possible
to
comply
with
both
the
provincial
and
preclude
federal
legislation.
federal
legislation
by
demolishing
the
aerodrome.
! There
was
also
no
evidence
establishing
that
a
federal
purpose
regarding
the
location
of
aerodromes
was
frustrated
by
the
provincial
legislation.
Page
18
of
86
[2]
Paramountcy
(3rd
Doctrine
of
Federalism)
(b)
Frustration
of
federal
purpose
=
provincial
law
frustrates
the
purpose
of
federal
Problem
of
Inconsistency
! Where
there
are
overlapping
federal
and
provincial
laws,
and
it
is
possible
to
! Doctrine
of
implied
repeal:
where
there
are
2
inconsistent
(or
conflicting)
comply
with
both
laws
,
but
the
effect
of
the
provincial
law
would
be
to
frustrate
the
purpose
of
the
federal
law,
that
is
also
a
case
of
inconsistency
statutes
the
later
is
deemed
be
have
impliedly
repealed
the
earlier
[UK]
! Step:
determine
purpose
of
federal,
and
effect
of
provincial
on
federal
law.
! The
doctrine
applies
in
Canada
to
resolve
conflicts
between
laws
enacted
by
the
same
legislative
body.
But
in
a
federal
system
there
is
also
the
possibility
of
conflict
between
the
statutes
of
different
legislative
bodies
within
federation.
! ROTHMAN,
BENSON
&
HEDGES
INC
v
SASKATCHEWAN
2005:
• Tobacco
Act
(federal)
prohibited
the
promotion
of
tobacco,
except
as
! Doctrine
of
implied
repeal
is
of
no
help
in
resolving
a
federal-‐
provincial
expressly
authorized,
and
permitted
retailers
to
display
tobacco
and
post
conflict
because
neither
the
federal
Parliament
nor
a
provincial
Legislature
signs
indicating
availability/price
has
the
power
to
repeal
either
expressly
or
impliedly
each
other’s
laws
• Tobacco
Control
Act
(Saskatchewan)
banned
all
advertising,
displays
and
promotions
of
tobacco
in
any
premises
in
which
persons
under
18
years
! RULE
that
has
been
adopted
by
the
courts
is
the
doctrine
of
“federal
are
permitted,
including
retail
stores
paramountcy”:
where
there
are
inconsistent
(or
conflicting)
federal
and
• This
meant
that
a
retailer
could
comply
with
both
laws,
either
by
refusing
provincial
laws,
it
is
the
federal
law
which
prevails
to
admit
persons
under
18
or
by
not
displaying
tobacco
products
• Court
held:
that
the
provincial
law
did
not
frustrate
the
purpose
(national
Applies
where
there
is
a
fed/prov
law
are
(1)
each
valid,
and
(2)
inconsistent
health)
of
the
federal
law,
and
therefore,
was
not
rendered
inoperative
by
! Validity
depends
upon:
does
the
“matter”
(or
pith
and
substance)
of
the
law
paramountcy
come
within
the
“classes
of
subjects”
(or
heads
of
power)
allocated
to
the
enacting
Parliament
or
Legislature?
If
one
law
fails
this
test,
then
the
problem
Negative
Implication
is
resolved
without
recourse
to
the
doctrine
of
paramountcy
(a) Covering
the
field
[Prov
law
supplements
or
duplicates
Fed,
inapplicable?
No]
! It
is
only
if
each
law
independently
passes
the
test
of
validity
that
it
is
! Narrow
interpretation
of
paramountcy
led
to
rejection
of
the
‘covering
the
necessary
to
determine
whether
the
laws
are
inconsistent
field
method’:
a
federal
law
may
be
interpreted
as
covering
the
field
and
precluding
any
provincial
laws
in
that
field,
even
if
they
are
not
contradictory
nd
2
Requirement:
Definition
of
Inconsistency
(or
conflicting)
of
the
federal.
In
Canada,
this
has
been
rejected
(O’Grady
v
Sparling)
Wide
definition
"
result
in
defeat
of
provincial
laws
in
‘fields’
covered
by
(b) Express
extension
of
paramountcy
federal
law
[seen
as
judicial
activism]
! Can,
for
example,
Parliament
extend
the
doctrine
of
paramountcy
beyond
the
Narrow
definition
"
allow
provincial
laws
to
survive
so
long
as
they
don’t
case
of
an
actual
conflict
in
operation?
Yes.
expressly
contradict
fed
law
[seen
as
judicial
restraint]
Overlap
and
Duplication
Express
Contradiction
=
one
law
expressly
contradicts
the
other
(a) Constitutional
significance
! Only
express
contradiction
suffices
to
invoke
the
paramountcy
doctrine
! Argument
against
duplication
of
federal
and
provincial
laws
can
have
little
weight
once
overlapping
is
admitted
(a)
Impossibility
of
dual
compliance
! Duplication
is
not
a
test
of
inconsistency
(Multiple
Access
Case)
o For
laws
which
directly
regulate
conduct,
an
express
contradiction
(b) Double
criminal
liability
occurs
when
it
is
impossible
for
a
person
to
obey
both
laws
! The
existence
of
overlapping
or
duplicative
penal
provisions
raises
the
o Example-‐
where
a
federal
law
stipulates
that
Japanese
citizens
in
possibility
that
a
person
may
be
liable
to
conviction
under
both
a
federal
law
Canada
are
to
be
afforded
the
same
employment
opportunities
as
and
a
provincial
law
for
the
same
conduct
Canadian
citizens,
and
a
provincial
law
stipulates
that
Japanese
are
! There
is
nothing
in
paramountcy
doctrine
which
precludes
multiple
not
to
be
employed
in
the
mines,
another
express
contradiction
prosecutions
or
convictions
under
federal
and
provincial
laws
occurs
(c) Double
civil
liability
Page
19
of
86
! Double
civil
liability
is
also
a
possibility
under
overlapping
or
duplicative
federal
Paramountcy
Argument:
and
provincial
laws
! The
doctrine
of
federal
paramountcy
dictates
that
where
there
is
an
! Like
the
possibility
of
double
criminal
liability,
the
issue
of
double
civil
liability
inconsistency
b/w
validly
enacted
but
overlapping
provincial
and
federal
did
not
need
to
be
resolved
by
the
doctrine
of
paramountcy
legislation,
the
provincial
legislation
is
inoperative
to
the
extent
of
the
inconsistency.
Effect
of
Inconsistency
! Provincial
legislation
that
displaces
or
frustrates
Parliament’s
legislative
! Once
it
has
been
determined
that
a
federal
law
is
inconsistent
with
a
provincial
purpose
is
also
inconsistent
for
the
purposes
of
the
doctrine.
law,
the
doctrine
of
federal
paramountcy
stipulates
that
the
provincial
law
must
yield
to
the
federal
law
(a)
Impossibility
of
a
Dual
Compliance?
Nope
! Most
accurate
way
of
describing
the
effect
on
the
provincial
law
is
to
say
that
! It
is
plain
that
dual
compliance
is
possible
in
this
case.
A
retailer
can
easily
it
is
rendered
inoperative
to
the
extent
of
inconsistency
comply
with
both
s.
30
of
the
Tobacco
Act
and
s.
6
of
The
Tobacco
Control
! Notice
that
the
paramountcy
doctrine
applies
only
to
the
extent
of
the
Act
in
one
of
two
ways:
by
admitting
no
one
under
18
years
of
age
on
to
the
inconsistency
premises
or
by
not
displaying
tobacco
or
tobacco-‐related
products.
o The
doctrine
will
not
affect
the
operation
of
those
parts
of
the
! For
an
impossibility
of
dual
compliance
to
exist,
s.
30
of
the
Tobacco
Act
provincial
law
which
are
not
inconsistent
with
the
federal
law,
unless
would
have
to
require
retailers
to
do
what
s.
6
of
The
Tobacco
Control
Act
the
inconsistent
parts
are
inseparably
linked
up
with
the
consistent
prohibits—i.e.,
to
display
tobacco
or
tobacco-‐related
products
to
young
parts
persons.
! Temporal
limitation
on
the
paramountcy
doctrine.
It
will
affect
the
operation
of
the
provincial
law
only
so
long
as
the
inconsistent
federal
law
is
in
force.
(b)
Frustration
of
Legislative
Purpose?
o If
the
federal
law
is
repealed,
the
provincial
law
will
automatically
! Section
6
of
the
Tobacco
Control
Act
does
NOT
frustrate
the
legislative
“revive”
(come
back
into
operation)
without
any
reenactment
by
the
purpose
underlying
s
30
of
the
federal
Act.
Both
the
general
purpose
of
the
provincial
Legislature
Tobacco
Act
(to
address
a
national
public
health
problem)
and
the
specific
purpose
of
s.
30
(to
circumscribe
the
Tobacco
Act’s
general
prohibition
on
promotion
of
tobacco
products
set
out
in
s.
19)
remain
fulfilled
REQUIRED
CASES
FOR
PARAMOUNTCY
.
ROTHMANS,
BENSON
&
HEDGES
INC.
v
SASKATCHEWAN
2005
Therefore:
There
is
no
inconsistency
between
s.
6
of
The
Tobacco
Control
Act
and
s.
FACTS:
Respondent
of
company
sought
a
declaration
that
s.
6
of
the
Saskatchewan
30
of
the
Tobacco
Act
that
would
render
the
former
inoperative
pursuant
Tobacco
Control
Act
is,
by
virtue
of
the
paramountcy
doctrine
is
inoperative
to
the
doctrine
of
federal
legislative
paramountcy
in
light
of
s.
30
of
the
federal
Tobacco
Act.
Section
30
allows
retailers
to
display
tobacco
and
signs
indicating
the
availability
and
price
of
tobacco,
while
s.
6
bans
all
advertising,
display
of
tobacco-‐related
products
in
any
premises
in
which
persons
under
18
years
of
age
are
permitted.
ISSUE:
Whether
s.
6
of
The
Tobacco
Control
Act
is
sufficiently
inconsistent
with
s.
30
of
the
Tobacco
Act
so
as
to
be
rendered
inoperative
through
the
paramountcy
doctrine.
2
questions
arise:
1.
can
a
person
simultaneously
comply
with
s.
6
of
The
Tobacco
Control
Act
and
s.
30
of
the
Tobacco
Act?
2.
does
s.
6
of
The
Tobacco
Control
Act
frustrate
Parliament’s
purpose
in
enacting
s.
30
of
the
Tobacco
Act?
HELD:
The
doctrine
of
paramountcy
does
not
apply.
Page
20
of
86
[3]
Property
&
Civil
Rights
–
CONSTITUTION
ACT,
1867
S
92(13)
Regulating
Business
in
General:
! The
insurance
cases
discussed
established
the
proposition
that
the
regulation
Importance
of
Property
and
Civil
Rights
of
business
was
ordinarily
a
matter
within
property
and
civil
rights
in
the
! S
92(13),
Constitution
Act
1867
confers
upon
the
provincial
Legislatures
the
province
power
to
make
laws
in
relation
to
“property
and
civil
rights
in
the
province”
! The
law
relating
to
property,
succession,
the
family,
contracts
and
torts
is
EXCEPTIONS
to
this
proposition:
mainly
within
provincial
jurisdiction
under
s
92(13)
o Some
industries
fall
within
federal
jurisdiction
because
they
are
! HOGG:
the
most
important
of
the
provincial
heads
of
power
enumerated
in
s
s.91,
such
as
navigation
and
shipping
(s91(10))
and
! Distinct
from
civil
liberties
banking
(s91(15)),
or
because
they
are
excepted
from
s
92(10),
namely,
! Civil
rights
referred
to
in
the
Constitution
Act
1867
comprise
primarily
interprovincial
or
international
transportation
and
communications
proprietary,
contractual
or
tortious
rights;
these
rights
exist
when
a
legal
rule
undertakings
(s92(10)(a)
and
(b)
and
works
declared
to
be
for
the
general
stipulates
that
in
certain
circumstances
one
person
is
entitled
to
something
advantage
of
Canada
(s.
92(10)(c)
from
another
o Some
industries
have
been
held
to
fall
within
federal
jurisdiction
under
! But
civil
liberties
exist
when
there
is
an
absence
of
legal
rules:
whatever
is
not
the
peace,
order,
and
good
government
power,
namely,
aeronautics
and
forbidden
is
a
civil
liberty
(as
per
USA).
the
production
of
atomic
energy
o Other
federal
powers
confer
a
limited
power
to
regulate
business,
for
Insurance
[not
specifically
characterized
in
s91/92]
B/c
of
unequal
field
b/w
insurers
"
example,
trade
and
commerce
(s91(2)),
taxation
(s91(3)),
interest
insured,
governments
regulated
early
on.
(s91(19)),
the
criminal
law
(s91(27))
and
peace,
order
and
good
(a) Provincial
power
government
(s91
opening
words)
! Leading
Case-‐
CITIZENS’
INSURANCE
CO.
v.
PARSONS
(1881):
o Privy
Council
upheld
an
Ontario
statute
which
required
that
certain
! The
gaps
in
federal
power
are
very
important
and
extensive:
ie.:
the
trade
conditions
be
included
in
every
policy
of
fire
insurance
entered
into
in
and
commerce
power
will
authorize:
Ontario:
regulation
of
the
terms
of
contracts
came
within
property
and
o A
federal
prohibition
of
the
importation
of
margarine,
but
not
a
civil
rights
in
the
province
(s92(13),
and
did
not
come
within
trade
and
prohibition
of
its
manufacture
or
sale;
commerce
(s91(2)
o The
interest
power
may
be
used
to
control
interest
rates,
but
not
other
terms
of
loans.
! Leading
Case:
RE
INSURANCE
REFERENCE:
o Trade
Commerce
regulates
interprovincial
marketing
but
not
local.
o Fed
statute
prohibiting
company
from
insuring
unless
licensed
by
Fed
o The
gaps
in
federal
power
are
covered
by
the
provincial
power
over
minister
of
Finance.
Federal
gov’t
argued
it
was
trade
and
commerce
s91.
property
and
civil
rights
o The
regulation
of
a
particular
industry
comes
within
property
and
civil
! The
point
is
that
the
regulation
of
an
industry,
or
the
more
general
regulation
rights
in
the
province,
even
when
the
industry
and
particular
firms
of
prices
or
profits
or
combinations,
has
traditionally
been
regarded
by
the
extended
beyond
the
boundaries
of
any
one
province
(Insurance
courts,
not
in
terms
of
its
ultimate,
often
nation-‐
wide
objectives,
but
in
terms
Reference;
Parsons)
of
its
immediate
impact
upon
freedom
of
contract
and
property
rights.
In
these
terms,
of
course,
restraints
on
business
fall
into
the
category
of
property
(b) Federal
power
and
civil
rights
in
the
province
! Despite
all
these
setbacks
in
the
courts,
the
federal
government
continues
to
regulate
a
substantial
part
of
the
insurance
industry
under
statutes
covering
Regulating
Professions
and
Trade:
provincial
property/civil
rights
British
and
foreign
companies,
federally-‐
incorporated
companies
and,
on
a
! Regulations
of
professions
and
trade
typically
take
the
form
of
restrictions
on
voluntary
basis,
provincially-‐
incorporated
companies
entry,
coupled
with
rules
of
conduct,
which
often
include
fee-‐
setting,
and
! Current
federal
statutes
includes
preambles
which
include
that
the
powers
administration
by
a
governing
body.
Such
regulations
is
no
different
for
over
trade
and
commerce,
aliens
and
insolvency
are
relied
upon
as
supporting
constitutional
purposes
than
that
of
other
industries,
and
comes
within
their
constitutionality
property
and
civil
rights
in
the
province
Page
21
of
86
Labour
Relations
(a) Provincial
power
Marketing
[reason
for
regulate:
interests
consumers,
quality,
inspection]
! Regulation
of
labour
relations
over
most
of
the
economy
is
within
provincial
(a) Federal
power
competence
under
property
and
civil
rights
in
the
province
(Toronto
Electric-‐
! Early
attempts
by
the
federal
Parliament
to
enact
marketing
schemes
under
Snider
leading
case)
the
trade
and
commerce
power
(s.91(2))
were
struck
down
by
the
Privy
o Industrial
peace
(e.g.
prevention
of
strikes,
lockouts)
falls
within
Council-‐
strong
presumption
that
any
interference
with
contracts
was
a
property
and
civil
rights.
Here
the
federal
act
required
certain
matter
within
property
and
civil
rights
in
the
province
procedures
for
settling
disputes
in
all
areas
–
including
provincial
! But
the
Canadian
courts
have
interpreted
the
trade
and
commerce
power
areas.
Held
unconstitutional
more
liberally
in
recent
times.
Eg.
Trans-‐Canada/provincial
oil
regulation.
! Laws
imposing
labour
standards
came
within
property
and
civil
rights
in
the
province.
(b) Provincial
power
! Other
decisions,
such
as
Unemployment
Insurance
Reference;
Oil,
Chemical
! Contracts
of
sale
and
purchase
are
prima
facie
matters
within
“property
Workers,
insist
that
the
modification
of
the
employment
relationship
is
and
civil
rights
in
the
province
&
therefore
amenable
to
province
legislation
exclusively
within
property
and
civil
rights,
notwithstanding
the
important
! There
is
no
doubt
that
under
s92(13)
the
provinces
have
the
power
to
federal
aspects
presented
by
the
relief
of
nation-‐
wide
unemployment
regulate
INTERPROVINCIAL
TRADE:
! The
question
is:
to
what
extent
should
a
province
be
permitted
to
burden
(b) Federal
power
INTERprovincial
trade
in
the
course
of
regulating
INTRAprovincial
trade?
! Despite
affirmations
of
provincial
power
over
labour
relations,
there
is
still
a
substantial
federal
presence
in
the
field.
After
Toronto
Electric-‐
Snider,
(i)
Shannon
v.
Lower
Mainland
Dairy
Products
Board
(1938):
changed
act
to
specify
any
industry
covered
under
Federal
power.
Provincial
scheme
for
compulsory
marketing
of
milk
upheld
and
applied
to
! Federal
Parliament
could
regulate
labour
relations
in
those
industries
which
milk
sold
in
province,
including
milk
made
OUTSIDE
province.
That
decision
are
within
federal
legislative
competence
(whether
in
the
public
or
private
was
followed
by
Carnation
Co
v
Quebec,
which
decided
that,
if
the
sector)
marketing
law
merely
AFFECTS
interprovincial
trade,
that
doesn’t
mean
the
o Stevedores
Reference:
SCC
held
that
the
federal
law
was
valid
and
that
it
law
is
invalid
(in
this
case,
Carnation
shipped
the
bulk
of
its
product
outside
was
applicable
to
the
stevedores
because
their
work
of
loading
and
the
province,
and
the
SCC
nevertheless
held
that
the
marketing
law
was
“in
unloading
ships
was
an
essential
part
of
navigation
and
shipping
relation
to”
intraprovincial
trade)
o Since
this
decision
it’s
clear
that
the
federal
Parliament
has
the
power
to
regulate
employment
in
works,
undertakings
or
businesses
within
the
(ii)
Manitoba
Egg
Reference
(1971):
legislative
authority
of
the
federal
Parliament
SCC
struck
down
a
provincial
scheme
to
regulate
the
marketing
of
eggs.
The
scheme
applied
to
all
eggs
sold
in
Manitoba,
including
eggs
produced
! The
fact
that
employees
are
engaged
in
constructing
a
runway
at
an
airport
elsewhere.
Court
said
that
statute
regulated
marketing
and
not
only
will
not
sweep
them
into
federal
jurisdiction,
if
their
work
is
simply
affected
interprovincial
trade,
but
it
AIMED
at
regulating
such
trade
and
so
construction,
unrelated
to
the
tasks
of
design
or
operation
that
would
be
an
it
was
invalid
as
an
attempt
to
regulate
such
trade
(Hogg
thinks
this
is
an
integral
part
of
aeronautics.
Same
goes
for
hotel
(Empress
Case)
that
is
not
odd
case
and
difficult
to
see
why
it
didn’t
follow
Shannon)
connected
to
railway
services.
(iii)
Re
Agricultural
Products
Marketing
Act
(1978):
! The
Court
approaches
these
cases
on
the
basis
that
provincial
competence
Upheld
scheme
regulating
national
marketing
of
eggs
(which
included
over
labour
relation
is
the
RULE,
and
federal
competence
is
the
EXCEPTON
federal
and
provincial
acts).
SCC
upheld
the
scheme,
and
held
that
the
o Federal
competence
exists
only
where
it
is
found
that
the
work
performed
provincial
statute
could
impose
production
quotas
on
all
producers
by
the
employees
is
an
integral
part
of
an
undertaking
within
federal
irrespective
of
the
destination
of
their
output
(this
part
is
important).
jurisdiction,
and
that
finding
depends
upon
“legislative
authority
over
the
operation,
not
over
the
person
of
the
employer”
When
the
law
is
aimed
at
conservation
purposes,
Spooner
Oils
(1933):
there
is
NO
doubt
that
the
province
has
power.
Province
has
power
over
conserving
lands.
Page
22
of
86
Securities
Regulation
(c) Heritage
property
(a) Provincial
power
! In
Kitkatla
Band
v.
British
Columbia
(2002),
the
SCC
held
that
the
protection
! Province
have
the
power
to
regulate
the
trade
in
corporate
securities.
This
of
heritage
or
cultural
property
was
within
provincial
jurisdiction
under
is
a
matter
within
property
and
civil
rights
in
the
province
property
and
civil
rights
in
the
province
(s92(13)
! Provinces
have
regulatory
regimes
which
establish
securities
commissions,
and
which
provide
for
the
licensing
of
brokers
and
the
regulation
of
the
Consumer
Protection:
market
for
corporate
securities
• Many
cases
above
deal
with
consumer
protection.
Demonstrates
that
most
of
it
! One
exception
to
the
generality
of
provincial
power
over
the
securities
is
under
provincial
property
civil
rights:
for
example,
provincial
restrictions
on
industry:
province
has
no
power
to
confer
upon
a
provincial
agency
advertising
to
children
referenced
“in
relation
to
consumer
protection
(Irwin
T)
discretionary
power
over
the
issue
of
securities
by
a
federally-‐
incorporated
• The
phrase
‘consumer
protection’
is
too
broad
and
vague
to
serve
as
a
‘matter’
company,
because
the
capacity
to
raise
capital
is
an
essential
attribute
of
for
the
purposes
of
the
federal
distribution
of
powers.
corporate
status
• It
must
be
broken
down
into
smaller
more
distinct
concepts
before
placed
in
! See
Reference
Re
Securities
Act
(2011)
below
correct
constitutional
slot.
Property
Summary
of
Principles
(a) General
(1)
The
regulation
of
a
particular
industry
or
business
falls
within
the
property
and
! Creation
of
property
rights,
their
transfer
and
their
general
characteristic
civil
rights
power
(Insurance
Reference;
Parsons)
are
within
property
and
civil
rights
in
the
province.
Thus,
the
law
of
real
personal
property
and
all
its
various
derivatives,
such
as
landlord
and
(2)
The
regulation
of
contracts
falls
under
the
property
and
civil
rights
power
tenant,
trusts
and
wills,
succession
on
intestacy,
conveyancing
and
land
(Parsons)
use
planning
are
within
provincial
power
! Difficulty
has
arisen
in
cases
where
a
province
has
sought
to
control
the
(3)
The
regulation
of
labour
relations,
as
a
general
rule,
falls
within
the
property
ownership
or
use
of
property
in
order
to
accomplish
a
non-‐
proprietary
and
civil
rights
power
(Toronto
Electric
etc),
although
federal
government
can
(exclusive)
objective
which
it
could
not
accomplish
by
more
direct
means:
regulate
labour
relations
which
are
a
required
part
of
a
federal
undertaking)
(Stevedores
Reference
etc)
Switzman
v
Elbling:
a
provincial
law
which
prohibited
the
use
of
a
house
to
propagate
communism
was
characterized
as
either
a
(4)
The
regulation
of
INTRAprovincial
trade
falls
within
the
property
and
civil
rights
criminal
law
or
law
in
relation
to
speech,
not
property
power,
even
though
it
may
have
interprovincial
effects
(Shannon
v
Lower
Mainland
Dairy);
to
be
valid,
however,
the
legislation
cannot
be
aimed
at
Bedard
v
Dawson:
a
provincial
law
which
prohibited
the
use
of
a
house
as
regulating
interprovincial
marketing
(Manitoba
Egg
Reference).
But
the
a
“disorderly
house”
was
characterized
as
a
property
provinces
can
regulate
production
schemes,
regardless
of
whether
the
output
law,
and
not
as
a
mere
supplement
to
Criminal
Code
is
interprovincial
(since
that
is
generally
a
provincial
matter)
(Re
Agricultural
offences
in
respect
of
disorderly
houses”
Products),
so
long
as
the
majority
of
the
product
is
not
being
exported
(Central
Canada
Potash)
(b) Foreign
ownership
! The
question
whether
a
province
can
control
foreign
ownership
of
land
was
(5)
Where
production
controls
are
imposed
for
physical
conservation
purposes,
litigated
in
Morgan
v
A-‐G
P.E.I
in
which
the
SCC
upheld
a
statute
of
P.E.I
then
the
matter
falls
within
the
property
and
civil
rights
power
(Spooner
Oils)
which
provided
that
“no
person
who
is
not
a
resident
of
the
province”
could
acquire
holdings
of
real
property
of
more
than
a
specified
size
except
within
(6)
The
creation
of
property
rights,
their
transfer
and
general
characteristics
are
the
permission
of
the
provincial
cabinet.
normally
within
the
property
and
civil
rights
power.
Where
a
province
seeks
to
o The
qualification
for
unrestricted
landholding
was
residence,
not
control
ownership
or
usage
of
property
in
order
to
accomplish
a
NON
citizenship,
and
so
the
prohibition
applied
to
non-‐
resident
citizens
as
proprietary
objective,
then
there
is
a
concern
that
it
might
be
trampling
on
well
as
non-‐
resident
aliens
another
head
of
power
(e.g.
criminal
law)
(e.g.
Switzman)
Page
23
of
86
REQUIRED
CASES
FOR
PROPERTY
&
CIVIL
RIGHTS
REFERENCE
RE
SECURITIES
ACT
2011
CITIZENS’
INSURANCE
CO.
v.
PARSONS
[1881]
FACTS:
Canada
(Federal)
proposed
to
pass
a
law
to
nationally
regulate
the
FACTS:
Citizens
Insurance,
a
federally
incorporated
company,
did
not
comply
with
Canadian
securities
industry.
(via
central
authority).
provincial
legislation
to
print
variations
in
the
provincial
standard
in
Historically
is
solely
regulated
by
provincial
and
territorial
governments.
conspicuous
type,
which
resulted
in
Parson’s
failing
to
disclose
information,
which
in
turn
made
his
insurance
claim
invalid.
ISSUE:
At
issue
was
the
question
of
whether
the
regulation
of
the
securities
ARGUEMENTS:
industry
is
a
valid
exercise
of
the
federal
trade
and
commerce
power?
NO
• Insurance
Company:
As
a
federally
regulated
company,
they
should
only
be
ARGUE:
Arguments
focused
on
the
applicability
of
the
five
criteria
for
such
an
regulated
by
trade
and
commerce
legislation,
a
federal
head
of
power
analysis
that
were
previously
identified
in
General
Motors
of
Canada
Ltd.
• Parsons:
Legislation
falls
within
“Property/Civil,”
a
provincial
head
of
power
v.
City
National
Leasing.
Federal
Govt
argued
this
is
of
national
concern.
ISSUE:
Was
the
provincial
legislation
ultra
vires,
making
Parson’s
failed
claim
HELD:
Proposed
Act
is
not
valid
under
the
general
branch
of
the
federal
power
illegitimate?
NO
to
regulate
trade
and
commerce.
It
focused
on
the
day-‐to-‐day
regulation
REASONING:
of
all
aspects
of
contracts
for
securities
within
the
provinces,
including
all
! The
Act
was
NOT
ultravires
the
power
of
the
enacting
government.
The
act
aspects
of
public
protection
and
professional
competences.
Therefore
the
regulated
contracts,
and
contracts
falls
under
the
head
of
property
and
civil
Pith
and
substance
of
securities
industry
regulation
is
a
matter
of
rights.
property
and
civil
rights
There
are
two
important
ratios
to
note
about
this
case:
• Proposed
Act
overreaches
genuine
national
concerns.
Yet,
does
not
justify
1)
There
is
a
limitation
on
s.
91(2):
s.
91(2),
dealing
with
trade
and
commerce,
a
wholesale
takeover
of
the
regulation
of
the
securities
industry,
which
is
is
limited
to
the
following
areas:
the
ultimate
consequence
of
the
proposed
federal
legislation.
• International
Trade
and
Interprovincial
Trade;
and
•
Regulation
of
Trade
affecting
whole
Dominion
• Adopted
Parsons
reasoning
(ie,
limit
scope
of
trade
and
commerce
power
o These
are
referred
to
as
the
two
branches
of
the
trade
and
to
avoid
draining
provincial
powers
over
civil
law).
Federalism
demands
commerce
power
(discussed
below)
that
a
balance
be
struck,
a
balance
that
allows
both
the
federal
Parliament
o Section
91(2)
should
not
be
read
to
include
the
power
to
regulate
and
the
provincial
legislatures
to
act
effectively
in
their
respective
spheres
by
legislation
the
contracts
of
a
particular
business
or
trade,
such
o Held
that
proposed
law
did
not
meet
the
last
3
General
Motors
as
the
business
of
fire
insurance
in
a
single
province
criteria
for
the
“general”
trade
and
commerce
power
:
2)
Provinces
Can
Regulate
Contracts:
Provincial
legislatures
have
the
! Concerned
with
a
particular
industry
(not
trade
as
a
whole)
jurisdiction
to
regulate
contracts
of
a
particular
business
or
trade
as
long
as
! The
provinces
are
capable
of
regulating
the
industry,
and
it
is
within
the
province
(including
the
ability
to
limit
and
control
the
! Exclusion
of
some
provinces
from
the
regulatory
scheme
will
manner
in
which
the
property
may
be
dealt
with,
including
the
terms
and
not
undermine
its
operation
conditions
of
the
contracts)
RATIO:
There
can
be
no
overlap
between
areas
of
jurisdiction,
meaning
that
heads
of
power
must
be
mutually
modified
to
prevent
overlap.
HELD:
Appeal
was
dismissed
(legislation
was
intra
vires).
Feds
do
not
have
the
authority
to
regulate
the
contracts
of
a
specific
trade,
and
thus
its
authority
does
not
conflict
or
compete
with
92(13)
provincial
civil
/property
rights.
Page
24
of
86
CHATTERJEE
V
ONTARIO
(ATTORNEY
GENERAL),
2009
SCC
FACTS:
Chatterjee
was
stopped
for
license
plate
infraction
and
car
was
searched.
He
was
arrested
in
Ontario
for
breach
of
bail
for
having
29,900
cash
and
grow
op
equipment.
Police
seized
money
under
Ontario
law,
“proceeds
or
instruments
of
unlawful
activity.”
Though
never
charged
with
any
offence
related
to
search.
ARGUE:
Chatterjee
claims
that
the
province
did
not
have
the
power
to
enact
the
law.
His
point
was
that
the
law
provides
for
the
forfeiture
of
proceeds
of
federal
criminal
offences
and
the
federal
Parliament,
not
the
provinces,
has
jurisdiction
to
make
criminal
law.
HELD:
SCC
"
valid
provincial
law.
Pith
and
Substance:
• Court
looked
at
the
purpose
clause
and
the
debates
before
its
enactment,
and
concluded
that
its
purpose
is
to
use
the
proceeds
of
crime
to
compensate
victims
and
the
public
for
the
costs
associated
with
criminal
activity
• In
terms
of
effects,
the
law
allows
to
the
province
to
seize
property
that
is
tainted
by
crime
Division
of
Powers:
• The
Court
concluded
that
the
law
focuses
on
property
and
the
effects
of
crime,
rather
than
adding
additional
penalties
to
federal
crimes
• Proceeds-‐of-‐crime
law
has
both
provincial
and
federal
aspects.
It
falls
under
the
provincial
power
over
“property
and
civil
rights”
and
“matters
of
a
merely
local
and
private
nature.”
As
well,
it
has
a
federal
aspect
as
it
touches
upon
criminal
law.
o Court
stated
that
the
criminal
law
aspect
is
acceptable
because
the
law
is
primarily
concerned
with
property
and
the
effects
of
crime.
• The
only
potential
problem
with
the
law
would
be
if
it
interfered
with
the
forfeiture
provisions
in
the
Criminal
Code
• If
the
Ontario
law
interfered
with
the
operation
of
the
federal
law,
the
doctrine
of
paramountcy
would
render
the
Ontario
law
inoperative
to
the
extent
that
it
interferes.
Page
25
of
86
[4]
Trade
&
Commerce
CONSTITUTION
ACT,
1867,
S
91(2)
(ii) In
the
Supreme
Court
of
Canada
! Since
the
abolition
of
appeals
to
the
Privy
Council
there
has
been
a
General
/
Intro:
T&C:
reappearance
of
the
trade
and
commerce
power
! Section
91(2),
Constitution
Act
1867
confers
upon
the
federal
Parliament
! New
attitude:
Ontario
Farm
Products
Marketing
Reference
1957:
federal
power
would
extend
to
some
transactions
which
were
completed
within
a
the
power
to
make
laws
in
relation
to
“the
regulation
of
trade
and
province
commerce”
! S91(2)
should
be
limited
to
“political
arrangements
in
regard
to
trade
requiring
the
sanction
of
Parliament,
regulation
of
trade
in
matters
of
inter-‐ Key
Principle
in
!
R
v
Klassen
1959:
striking
departure
from
PC
decisions
^
provincial
concern,
and
it
may
be
that
they
would
include
general
regulation
o Principle:
if
impugned
Act
has
incidental
effect
to
intraprovincial
of
trade
affecting
the
whole
dominion
(citizens’
insurance
co
v.
Parsons)
transactions
(sale
of
grain
by
farmer
to
local
store),
that’s
okay
(so
long
that
the
intraprovincial
effects
were
incidental
to
the
purpose
of
Relationship
to
Property
and
Civil
Rights
the
Act)
here
purpose
was
to
regulate
the
interprovincial
and
export
trade
in
grain.
! Judicial
interpretation
has
narrowed
the
scope
of
s
91(2).
(vs
USA
who
^)
! S
91(2)
and
s
92(13)
(ie
property
and
civil
rights
power
of
the
provinces)
appear
to
overlap
(trade
and
commerce
is
carried
on
by
means
of
contracts
! Labatt
Breweries
v
A-‐G
Can
1979:
which
give
rise
to
“civil
rights”
over
“property’),
but
Courts,
by
a
process
of
o Federal
trade
and
commerce
power
was
rejected
as
a
support
for
mutual
modification,
have
narrowed
the
2
classes
of
subjects
as
to
eliminate
federal
legislation.
Court
struck
down
compositional
standards
for
beer
the
overlapping
and
make
each
power
exclusive
enacted
under
the
Food
and
Drugs
Act.
The
standards
on
the
beer
industry
were
without
regard
for
the
product’s
movements
across
provincial
boundaries
AND
the
case
reaffirmed
the
rule
that
the
trade
Since
the
PARSONS
case,
it
has
been
accepted
that:
and
commerce
power
will
not
authorize
the
regulation
of
a
single
trade
(1)
INTRAprovincial
trade
and
commerce
is
a
matter
within
provincial
power,
or
industry.
under
“property
and
civil
rights
in
the
province”
(s
92(13))
(2)
The
federal
trade
and
commerce
power
is
confined
to
(a)
INTERprovincial
(connecting
or
involving
different
provinces)
or
2. General
Trade
and
Commerce
international
trade
and
commerce,
and
! General
category
of
trade
and
commerce
had
previously
been
rejected
as
a
(b)
“general”
trade
and
commerce
affecting
the
whole
dominion
support
for
federal
policies
of
economic
regulation.
(until
GM
v
National)
! Ex:
rejected
in
insurance
(Insurance
Ref);
labour
regulations
(Snider);
prohibition
of
products
(Margarine).
1. Interprovincial
or
International
Trade
and
Commerce
! Only
example
of
valid
exercise
of
general
trade
and
commerce
power
was:
(i) In
the
Privy
Council
! The
Parson
Case
did
not
define
when
trade
and
commerce
became
sufficiently
Canada
Standard
Trade
Mark:
The
case
seemed
to
decide
that
the
general
interprovincial
so
as
to
come
within
the
federal
power.
trade
and
commerce
power
would
authorize
federal
standards
of
production
! Early
cases
suggested
that
unless
a
federal
law
attempted
to
control
(not
or
manufacture
for
products
traded
locally,
provided
that
the
federal
particular
trades)
but
more
general
aspects
of
the
economy
(combinations
standards
were
tied
to
the
voluntary
use
of
a
distinctive
mark
(Canada
Standard)
prices,
labour),
which
were
governed
by
economic
forces
that
ignored
Labatt
Breweries:
SCC
struck
down
compositional
standards
for
“light
beer”
provincial
boundaries,
then
they
could
not
be
held
valid
under
the
trade
and
commerce
power
(Insurance
Reference
1916;
Toronto
Electric
Commissioners
which
would
become
applicable
only
through
the
use
of
the
voluntary
phrase
v
Snider
1925).
“light
beer”.
Majority
basically
held
that
this
case,
unlike
Canada
Standard
Trade
Mark
case,
involved
the
use
of
a
common
name
(light
beer).
Which
is
Margarine
Reference:
virtually
mandatory
and
would
affect
producers
who
did
not
want
to
be
o Held
unconstitutional
a
prohibition
on
sale,
manufacture,
import
of
affected.
Common
descriptive
words
are
harder
to
avoid.
margarine
b/c
it
affected
both
INTERprovincial
and
INTRAprovincial
dealings.
However,
importation
was
still
valid
law
and
severed
Page
26
of
86
!
regulating
business
practices:
GENERAL
MOTORS
OF
CANADA
LTD
v.
CITY
NATIONAL
LEASING
1989:
! MacDonald
v.
Vapor
Canada
1976:
a
civil
remedy
for
any
business
practice
! Upheld
constitutionality
of
the
federal
competition
legislation
under
the
which
was
contrary
to
honest
industrial
or
commercial
usage
was
said
to
not
“general”
trade
and
commerce
power
ie.
The
2nd
of
Parsons
test
for
s
91(2)
fall
under
the
federal
power-‐
the
creation
or
extension
of
civil
clauses
of
action
of
an
essentially
contractual
or
tortious
character
was
a
matter
within
Analysis
for
whether
a
legislative
provision
is
within
the
“general”
branch
of
property
and
civil
rights.
The
only
federal
aspect
was
that
the
law
applied
the
Trade
and
Commerce
power:
throughout
Canada,
but
this
is
insufficient.
A
central
reg
scheme
would
be
ok.
i. The
presence
of
a
general
regulatory
scheme;
ii. Scheme
monitored
by
oversight
of
regulatory
agency;
Limits
to
general
regulation
of
trade
affecting
nation:
iii. Legislation
concerned
with
trade
as
a
whole,
rather
thn
particular
industry
! Insurance
Reference:
federal
Parliament
cannot
enact
“national”
insurance
iv. Legislation
should
be
of
a
nature
that
the
provinces
jointly
or
severally
law
simply
because
there
are
insurers
located
in
various
provinces
would
be
constitutionally
incapable
of
enacting;
and
! Toronto
Electric
v.
Snider:
cannot
enact
federal
labour
law
under
s
91(2)
v. the
failure
to
include
one
or
more
provinces
or
localities
in
the
legislative
! Margarine
Reference:
cannot
enact
federal
law
to
regulate
sale
of
scheme
would
jeopardize
the
successful
operation
of
the
scheme
in
other
margarine
in
province
parts
of
the
country
! Labatt
Breweries
v.
A-‐G
Canada:
struck
standards
for
beer
under
federal
Food
and
Drug
Act
as
not
properly
regulating
interprovincial
trade,
since
! Overall,
the
Competition
Act
was
a
valid
exercise
of
the
general
trade
and
imposed
without
regards
to
product
movement
across
provincial
commerce
power.
A
5
part
test
was
adopted
and
employed
(using
part
of
the
boundaries
Vapor
test)
in
this
case.
The
allegations
that
gave
rise
to
litigation
concerned
price
discrimination
in
the
financing
of
the
purchase
of
vehicles
by
companies
CONTEMPORARY
INTERPRETTION
-‐
Scope
of
the
Trade
and
Commerce
Power
that
lease
fleets
of
automobiles
and
trucks
within
a
single
province.
under
s.
91(2)
! Thus,
since
the
law
was
upheld,
the
conclusion
was
that
Parliament
has
the
constitutional
power
to
regulate
intraprovincial
aspects
of
competition.
! Current
scope
of
federal
power
has
expanded-‐
SCC
has
allowed
both
branches
of
s.91(2)
to
be
broadened:
REFERENCE
RE
SECURITIES
ACT
2011-‐
see
above!
1. Extra
territorial:
• Federal
laws
that
are
in
pith
and
substance
in
relation
to
extra
*NOTE:
The
above
chapter
on
trade
and
commerce
discussed
the
federal
trade
and
territoriality
can
be
upheld
notwithstanding
their
“incidental
effects”
commerce
power
in
relation
to
general
terms.
When
attention
is
directed
on
intraprovincial
transactions:
per
Klassen
to
more
specific
topics,
for
example,
the
regulation
of
businesses,
the
regulation
of
professions
and
trades,
labour
relations,
marketing
and
2. General
regulation
of
trade:
securities
regulation,
it
is
found
that
trade
and
commerce
is
not
the
• Even
if
federal
economic
regulation
is
predominantly
in
relation
to
dominant
source
of
power:
legislative
power
is
for
the
most
part
interprovincial
trade,
it
can
be
upheld
if
in
pith
and
substance
it
meets
provincial,
under
property
and
civil
rights
in
the
province.
the
criteria
for
validity
pursuant
to
the
general
regulation
of
trade
power:
per
General
Motors-‐
scheme
of
regulation
must
be
truly
general
and
national
in
scope;
provinces
must
lack
the
ability
to
effectively
regulate
the
subject
matter
Page
27
of
86
REQUIRED
CASES
FOR
TRADE
&
COMMERCE:
PRINCIPLE:
Analysis
for
whether
a
legislative
provision
is
within
the
“general”
branch
of
the
Trade
and
Commerce
power:
5
Step
TEST
GENERAL
MOTORS
v.
CITY
NATIONAL
LEASING:
FACTS:
During
the
1970s
General
Motors
(GM)
sold
vehicles
to
both
City
National
1. Presence
of
a
General
Regulatory
Scheme".
Leasing
(CNL)
and
to
CNL's
competitors.
It
was
discovered
that
GM
was
a. In
this
case—s
31.1
does
infringe
because
creates
a
civil
action
(suing)
giving
CNL's
competitor
a
better
interest
rate
than
CNL,
which
violated
the
which
is
generally
a
provincial
matter
b/w
contracting
parties.
federal
Combines
Investigation
Act.
In
its
defence
GM
argued
that
the
2. Scheme
must
be
monitored
by
oversight
of
regulatory
agency.
provision
in
the
Act
that
created
the
civil
cause
of
action
was
outside
the
3. Legislation
concerned
with
trade
as
a
whole,
rather
than
with
a
particular
legislative
competence
of
the
federal
government.
industry
"
if
scheme
is
valid
must
determine
whether
the
impugned
provision
is
sufficiently
integrated
with
the
scheme
that
it
can
be
upheld
by
virtue
of
that
HELD:
Upheld
federal
Combines
Investigation
Act
(now
Competition
Act)
as
a
valid
relationship.
exercise
of
trade
and
commerce
power
under
s
91(2)
4. Legislation
should
be
of
a
nature
that
the
provinces
jointly
or
severally
would
• Federal
has
power
over
international
and
interprovincial
trade/
be
constitutionally
incapable
of
enacting;
commerce
affecting
the
entire
nation.
• Section
31.1
is
intra
vires
parliament
by
virtue
of
its
relationship
to
the
5. The
failure
to
include
one
or
more
provinces
or
localities
in
the
legislative
scheme
of
economic
regulation
found
in
the
Combines
Investigation
scheme
would
jeopardize
the
successful
operation
of
the
scheme
in
other
Act.
parts
of
the
country
Test
when
challenging
a
provision
of
an
act
(not
the
entire
act):
OVERALL
• In
this
case—the
act
as
a
whole
embodies
a
complex
scheme
of
economic
1. Court
must
determine
whether
the
impugned
provision
can
be
viewed
as
regulation.
The
purpose
of
the
act
is
to
eliminate
activities
that
reduce
intruding
on
provincial
powers,
and
if
so
to
what
extent
(if
no
intrusion
-‐
ends):
competition
in
the
market
place.
"
Do
a
pith
and
substance
analysis
of
the
provision
–
what
does
it
do,
why,
etc.
• The
validity
of
s31.1
–
the
provision
must
be
related
to
the
scheme
for
it
to
be
constitutionally
justified.
2. Court
must
establish
whether
the
act
is
valid
(go
through
analysis
of
classification
of
the
act
–
do
pith
and
substance
of
entire
act):
Ask
is
it
“functionally
related”
to
the
general
objective
(HERE
YES
it
was)
→
a.
If
not
valid,
end
of
inquiry;
→
b.
If
valid
move
on
to
3.
Overall
# So
GM
was
fucking
with
competition
and
the
Combines
Act
was
there
to
3. Court
must
determine
whether
the
impugned
provision
is
sufficiently
integrated
eliminate
activities
that
messed
with
competition.
Therefore
s
31.1
was
w/
the
scheme
that
it
can
be
upheld
by
virtue
of
that
relationship
(subjective):
FUNCTIONALLY
RELATED
to
that
objective
of
encouraging
competition
→
Requires
considering
the
seriousness
of
the
encroachment
on
prov
powers,
and
thus
held
to
be
valid.
in
order
to
decide
proper
standard
for
such
relationship:
⇒
If
deeply
instructive
provisions
only
saved
if
it
is
necessarily
incidental
Note:
Follows:
The
leading
case
on
s
91(2)
is
Parsons
established
3
propositions:
(act
cannot
function
w/o
that
provision); 1. it
does
not
correspond
to
the
literal
meaning
of
the
words
"regulation
of
trade
and
commerce";
⇒
If
it
is
a
lower
level
of
intrusion
the
provision
can
be
saved
it
is
has
a
2. it
includes
not
only
arrangements
with
regard
to
international
and
rational,
functional
connection
–
further
the
operation
of
the
act
in
interprovincial
trade
but
"it
may
be
that
.
.
.
(it)
would
include
general
some
way
(ensuring
the
provision
is
not
just
tacked
on
or
colourable)
regulation
of
trade
affecting
the
whole
dominion";
3. it
does
not
extend
to
regulating
the
contracts
of
a
particular
business
or
trade
!
REFERENCE
RE
SECURITIES
ACT
2011-‐
see
above!
Page
28
of
86
[5]
Peace,
Order
&
Good
Government-‐
CONSTITUTION
ACT,
1867,
S
91
(2) The
“National
Concern”
Branch
Residuary
Nature
of
Power
! Matters
which
begin
as
local
but
acquire
national
dimensions
or
concern
! Opening
words
of
s91,
Constitution
Act
1867
confer
on
the
federal
Parliament
the
power:
Local
Prohibition
Case
(1986):
the
idea
that
some
matter
of
legislation,
in
their
o “to
make
laws
for
the
peace,
order,
and
good
government
of
Canada,
local
and
provincial
origin,
could
acquire
“national
dimensions”
or
“national
in
relation
to
all
matters
not
coming
within
the
classes
of
subjects
by
concern”
and
thereby
come
within
the
federal
Parliament’s
p.o.g.g
power
this
Act
assigned
exclusively
to
the
Legislatures
of
the
provinces;…
! Accommodates
matters
which
do
not
come
within
any
of
the
enumerated
CURRENT
TEST:
national
concern
provincial
or
federal
provincial
or
federal
heads
of
power
! In
Canada,
the
provincial
heads
of
power
include
one
of
great
importance
Canada
Temperance
Federation
case:
a
new
test
was
formulated
(and
the
o S
92(13),
“property
and
civil
rights
in
the
province”,
a
phrase
which
is
requirement
that
only
an
emergency
could
serve
as
the
basis
for
an
exercise
of
apt
to
include
most
of
the
private
law
of
property,
contracts
and
torts
the
pogg
power/
the
requirement
that
national
concern
amount
to
an
and
their
many
derivatives.
emergency
as
stated
in
Russell
was
now
rejected):
o At
the
hands
of
the
Privy
Council
s92(13)
became
a
kind
of
residuary
power
itself,
and
one
which
was
much
more
important
than
the
“if
the
legislation
is
such
that
it
goes
beyond
local
or
provincial
concern
or
nd
federal
peace,
order,
and
good
government
power.
A
2
potentially
interests
and
must
from
its
inherent
nature
be
the
concern
of
the
sweeping
head
of
provincial
power
is
s
92(16),
“generally
all
matters
of
Dominion
as
a
whole
(ie
aeronautics
case;
radio
case),
then
it
will
fall
a
merely
local
or
private
nature
in
the
province”
within
this
head
of
power
(within
the
competence
of
the
Dominion
! The
P.O.G.G
power
has
given
rise
to
3
branches
of
legislative
power:
Parliament
as
a
matter
affecting
peace,
order
and
good
government
of
Canada),
although
it
may
in
another
aspect
touch
on
other
matters
over
(1) The
“Gap”
Branch
which
the
province
has
authority”.
[THIS
IS
THE
ESTABLISHED
DEFINITION
! Purpose:
fill
gaps/lacunas
in
the
scheme
of
distribution
of
powers.
Gap
Exists:
OF
THE
‘NATIONAL
CONCERN’
BRANCH]
Gap
exists
in
the
provision
for
the
incorporation
of
companies:
o If
this
test
is
satisfied,
then
the
matter
comes
within
the
pogg
power
! Constitution
Act
1867
by
s
92(11),
empowers
the
provincial
Legislatures
to
in
its
national
concern
branch
make
laws
in
relation
to
“the
incorporation
of
companies
with
provincial
o This
case
established
that
there
was
a
national
concern
branch
of
objects”,
but
there
is
no
equivalent
enumerated
federal
power
of
incorporation.
pogg
as
well
as
an
emergency
branch
! The
courts
have
held
that
the
power
to
incorporate
companies
with
objects
other
than
provincial
must
fall
within
the
federal
residuary
powers.
! The
national
concern
branch
of
pogg
has
provided
the
sole
basis
for
the
decision
in
3
cases
in
the
SCC:
Gap
in
treaty
power
(some
controversy
on
this)
! S
132,
Constitution
Act
1867
confers
upon
the
federal
Parliament
the
power
to
a.
Johannesson
v
West
St
Paul
(SCC
Case):
Aeronautics
satisfied
the
national
enact
laws
for
performing
the
obligations
of
Canada
“as
part
of
the
British
concern
branch
(eg.
Rapid
growth
of
passenger
and
freight
traffic
by
air,
Empire,
towards
foreign
countries,
arising
under
treaties
between
the
Empire
the
use
of
aircraft
for
the
carriage
of
mails
especially
to
remote
parts
of
the
and
such
foreign
countries
country,
and
the
necessity
for
the
development
of
air
services
are
to
be
! The
framers
of
the
Act
did
not
contemplate
that
Canada
would
eventually
controlled
by
a
national
government
responsive
to
the
need
of
the
nation
acquire
the
power
to
enter
into
treaties
on
its
own
behalf
as
a
whole”)
Other
Examples
of
the
Gap
Test:
b.
Munro
v
National
Capital
Commission:
the
national
capital
region,
an
area
! In
the
Official
Languages
Act
:
equal
status
of
French/Eng
in
Parliament
around
Ottawa
that
had
been
designated
by
federal
legislation
satisfied
the
! In
the
jurisdiction
over
offshore
mineral
resources
(seabed
covered
via
national
concern
test
province,
but
extended
beyond
provincial
borders,
gap
filled
by
federal
law)
Page
29
of
86
c.
R
v.
CROWN
ZELLERBACH
(1988):
held
that
marine
pollution
satisfied
the
were
affected
by
coastal
environments
making
this
power
intrude
national
concern
test
into
industrial
and
municipal
activity
and
resource
develop
(prov
pwr).
o the
federal
Ocean
Dumpling
Control
Act,
which
prohibited
dumping
“at
sea”,
was
upheld
in
its
application
to
marine
waters
within
the
THE
REQUIREMNT
OF
“DISTINCTNESS”
IS
A
NECESSARY
BUT
NOT
A
boundaries
of
B.C
SUFFICIENT
CONDITION
for
a
matter
to
be
admitted
to
the
national
o Le
Dain
J
for
the
majority
of
the
Court
held
that
“marine
pollution,
concern
branch
of
pogg
because
of
its
predominantly
extra-‐
provincial
as
well
as
international
character
and
implications,
is
clearly
a
matter
of
A
distinct
matter
would
also
have
to
satisfy
the
provincial
inability
test
(or
concern
to
Canada
as
a
whole”
other
definition
of
national
concern)
o a
distinct
matter
would
come
within
the
provincial
power
if
it
came
Definition
of
National
Concern:
within
“property
and
civil
rights
in
the
province”
(s
92(13)
or
if
it
were
WHEN
DOES
A
SUBJECT
MATTER
OF
LEGISLATION
BECOME
“THE
CONCERN
“of
a
merely
local
or
private
nature
in
the
province”
(s92(16))
OF
THE
DOMINION
AS
A
WHOLE”
TO
SATISFY
THE
NATIONAL
CONCERN
TEST??
(3) The
“Emergency”
Branch
! Emergency
must
be
temporary
R
v
.
Crown
Zellerbach
–
[1]
Provincial
Inability
! Until
1940,
the
pogg
power
was
only
valid
for
emergencies
• Relied
on
the
provincial
inability
test
as
a
reason
for
finding
that
marine
pollution
was
a
matter
of
national
concern.
“it
is
because
of
the
(A)
Non-‐
emergencies:
Early
Case
Law
interrelatedness
of
the
intraprovincial
and
extra-‐
provincial
aspects
of
! Haldane:
Emergency
test
first
emerged
in
Board
of
Commerce
case
(1922):
the
matter
that
It
requires
a
single
or
uniform
legislative
treatment.”
For
rejected
the
pogg
power
as
authority
for
the
statute
on
the
ground
that
example,
the
failure
of
one
province
to
protects
its
waters
would
probably
“highly
exception”
or
“abnormal’
circumstances
would
be
required
to
justify
lead
to
the
pollution
of
the
waters
of
other
provinces
as
well
as
the
the
invocation
of
pogg:
as
examples,
they
suggested
“war
or
famine”
(federal)
territorial
sea
and
high
sea
! Toronto
Electric
Commissioners
v.
Snider
(1925):
pogg
power
was
available
only
in
“cases
arising
out
of
some
extraordinary
peril
to
the
national
life
of
• Another
example
of
the
above
test
is
a
case
of
an
epidemic
–
the
failure
of
Canada,
such
as
the
cases
arising
out
of
war”
one
province
to
take
preventative
measures
would
probably
lead
to
the
! Margarine
Reference
(1951):
federal
legislation
prohibiting
manufacture
and
spreading
of
the
disease
into
those
provinces
which
had
taken
sale
of
margarine
was
struck
down,
rejecting
emergency
argument.
preventative
measures.
(B)
War:
• Therefore
an
important
element
of
national
concern
is
a
need
for
one
! Fort
Frances:
federal
legislation
(War
Measures
Act)
enacted
during
First
national
law
which
cannot
realistically
be
satisfied
by
cooperative
World
War
that
dealt
with
economic
responses
to
the
war
was
held
provincial
action
because
the
failure
of
one
province
to
cooperate
would
constitutional
under
this
power
carry
with
it
adverse
consequences
for
the
residents
of
other
provinces.
A
o Privy
Council
held
that
the
regime
of
price
control
which
had
been
subject
matter
of
legislation
which
has
this
characteristic
has
the
established
during
the
first
world
war,
and
which
continued
necessary
national
concern
to
justify
invocation
of
the
pogg
power
temporarily
after
the
war,
was
constitutional
o In
a
“sufficiently
great
emergency
such
as
that
arising
out
war”,
the
#2:
DISTINCTIVENESS:
cannot
be
broad
subject
matter
(ie
‘inflation)
pogg
power
would
authorize
laws
which
in
normal
times
would
be
o In
order
to
qualify
as
a
“matter”
coming
within
the
national
concern
competent
only
to
the
provinces
branch
of
the
pogg
power,
a
topic
must
be
“distinct”:
it
must
have
a
nd
“degree
of
unity
that
makes
it
inadvisable,
an
identity
which
makes
! Rent
control
during
and
after
the
2
world
war
was
upheld
on
the
same
basis
it
distinct
from
provincial
matters”
(Anti-‐inflation
Reference)
by
the
SCC
in
the
Wartime
Leasehold
Regulations
Reference
(1950)
o In
R
v
.
Crown
Zellerbach,
La
Forest
Dissented
–
said
marine
pollution
lacked
distinctiveness
–
marine
waters
went
into
fresh
water
and
Page
30
of
86
nd
! Deportation
of
Japanese
Canadians
after
the
2
world
war
was
help
on
the
(2) Second,
the
pogg
power
gives
the
federal
Parliament
TEMPORARY
same
basis
by
the
Privy
Council
(Japanese
Canadians
Reference
1947)
jurisdiction
over
all
subject
matters
(including
general
ones
like
inflation)
needed
to
deal
with
an
emergency,
so
long
as
the
legislation
operates
as
a
! In
all
cases,
legislation
outlived
the
war,
but
was
still
held
to
be
valid.
In
Fort
partial
and
temporary
alteration
of
the
distribution
of
power
between
Frances
case
,
Viscount
Haldane
deferred
to
the
federal
government
on
this
Parliament
and
provincial
legislatures
(Anti-‐Inflation
Reference)
point,
saying
that
“very
clear
evidence”
would
be
required
to
justify
the
court
“in
overruling
the
decision
of
the
Government
that
exceptional
measures
were
• This
theory
does
explain
most
cases.
Leading
emergency
cases
did
involve
still
requisite”
legislation
asseting
new
category
of
federal
power
over
property,
prices,
wages
(Fort
Frances,
Snider,
Wartime
Leasing).
In
these
cases
only
upheld
if
there
was
an
emergency.
(C)
Apprehended
Insurrection
• Leading
‘national
concern
cases
each
involved
legislation
over
more
distinct
! The
War
Measures
Act
was
held
constitutional
in
one
other
context
other
than
and
spate
subject
matter,
ie
aeronautics,
marine
pollution.
No
emergency
and
war,
namely
during
the
“October
Crisis”
of
October
1970
when
a
violent
upheld
if
it
was
of
national
concern.
Quebec
separatist
group
kidnapped
a
British
diplomat;
the
federal
government
responded
by
issuing
a
proclamation
declaring
that
an
“apprehended
insurrection
exists,”
bring
into
force
War
Measures
Act.
Constitutionality
of
REQUIRED
CASES
FOR
P.O.G.G.
this
was
however
never
brought
before
courts.
(D)
Inflation
R
V
CROWN
ZELLERBACH
CANADA
(Dealing
with
the
national
concern
branch)
! MOST
RECENT
APPLICATION
OF
THE
EMERGENCY
DOCTRINE
IS
TO
BE
FOUND
Facts:
The
federal
Ocean
Dumpling
Control
Act,
which
prohibited
dump
“at
sea”,
IN
THE
ANTI-‐INFLATION
RFERENCE
1976,
in
which
the
federal
Anti-‐Inflation
was
upheld
in
its
application
to
marine
waters
within
the
boundaries
of
B.C
Act
was
upheld
as
an
emergency
measure.
Period
of
months
with
double
inflation.
Act
was
temporary.
Held:
s
4(1)
is
constitutionally
valid
:
Le
Dain
J
for
the
majority
of
the
Court
held
! The
case
indicates
that
all
you
need
to
show
is
that
a
rational
basis
for
finding
that
“marine
pollution,
because
of
its
predominantly
extra-‐
provincial
as
that
an
emergency
exists-‐
don’t
need
definitive
conclusions
well
as
international
character
and
implications,
is
clearly
a
matter
of
! Case
shows
the
courts
show
deference
in
these
types
of
non-‐definitive
factual
concern
to
Canada
as
a
whole”
situations
to
the
government.
• Principles
and
Rational
! Hogg
says:
Federal
Parliament
can
use
its
emergency
power
almost
at
will.
o Relied
on
the
provincial
inability
test
as
a
reason
for
finding
that
marine
pollution
was
a
matter
of
national
concern.
“it
is
because
(E)
Temporary
character
of
law:
of
the
interrelatedness
of
the
intraprovincial
and
extra-‐
provincial
! Limitation
of
the
federal
emergency
power:
it
will
support
only
temporary
aspects
of
the
matter
that
It
requires
a
single
or
uniform
legislative
measures
treatment.”
For
example,
the
failure
of
one
province
to
protects
its
! No
permanent
measure
has
ever
been
upheld
under
the
emergency
power.
waters
would
probably
lead
to
the
pollution
of
the
waters
of
other
Yet,
government
decides
whether
still
in
emergency,
and
can
thus
drag
out
provinces
as
well
as
the
(federal)
territorial
sea
and
high
sea
temporary
for
a
long
time.
ANALYSIS:
STEP
1:
Pith
and
substance
of
the
Act
Relationship
Between
National
Concern
and
Emergency:
! Its
purpose
is
to
require
a
permit
so
that
the
regulatory
authority
may
! Lederman
and
Beetz
J
in
Anti-‐inflation:
POGG
power
performs
two
separate
determine
before
the
proposed
dumping
has
occurred
whether
it
may
be
functions
in
the
constitution:
permitted
upon
certain
terms
and
conditions.
(1) The
pogg
power
gives
to
the
federal
Parliament
the
PERMANENT
STEP
2:
Which
head
of
power
does
it
fall
under?
jurisdiction
over
distinct
subject
matters
which
do
not
fall
within
any
of
the
! Can
it
be
upheld
under
POGG
enumerated
heads
of
s
92,
and
which
by
nature
are
of
national
concern
Principles:
eg.,
aeronautics,
the
national
capital
region
(Anti-‐Inflation
Reference)
Page
31
of
86
1.
The
national
concern
doctrine
is
separate
and
distinct
from
the
national
emergency
doctrine
of
the
peace,
order
and
good
government
power,
which
is
REASONING:
Laskin
CJ’s
Judgment
chiefly
distinguishable
by
the
fact
that
it
provides
a
constitutional
basis
for
what
is
! Court
needs
to
find
that
there
is
a
rational
basis
for
the
emergency
necessarily
legislation
of
a
temporary
nature;
legislation
(not
definitive
proof
that
there
was
an
emergency)
2.
The
national
concern
doctrine
applies
to
both
new
matters
which
did
not
exist
at
[REQUIREMENT]
Confederation
and
to
matters
which,
although
originally
matters
of
a
local
or
private
nature
in
a
province,
have
since,
in
the
absence
of
national
emergency,
become
! Fed
legislation
can
be
upheld
under
the
emergency
test
of
the
pogg
power
matters
of
national
concern;
even
if
it
was
enacted
after
the
emergency
had
ended
(because
the
effects
3.
For
a
matter
to
qualify
as
a
matter
of
national
concern
in
either
sense
it
must
of
the
emergency
may
still
be
operative)
[RULE]
have
a
singleness,
distinctiveness
and
indivisibility
that
clearly
distinguishes
it
from
matters
of
provincial
concern
and
a
scale
of
impact
on
provincial
! Fed
legislation
can
be
upheld
under
the
emergency
test
of
the
pogg
power
jurisdiction
that
is
reconcilable
with
the
fundamental
distribution
of
legislative
even
if
it
intrudes
on
provincial
territory
[RULE]
power
under
the
Constitution;
4.
In
determining
whether
a
matter
has
attained
the
required
degree
of
singleness,
! It
isn’t
for
the
Court
to
assess
whether
the
Act
will
in
fact
have
the
effect
to
distinctiveness
and
indivisibility
that
clearly
distinguishes
it
from
matters
of
mitigate
against
the
emergency.
Deference
to
parliament.
provincial
concern,
it
is
relevant
to
consider
what
would
be
the
effect
on
extra-‐
provincial
interests
of
a
provincial
failure
to
deal
effectively
with
the
control
or
! The
Anti-‐Inflation
Act
is
valid
legislation
for
the
peace,
order
and
good
regulation
of
the
intra-‐provincial
aspects
of
the
matter
[I.e.the
“provincial
inability”
government
of
Canada
and
does
not,
in
the
circumstances
under
which
it
test]:
was
enacted
and
having
regard
to
its
temporary
character,
invade
provincial
legislative
jurisdiction
Court
says
that
marine
pollution,
because
of
its
predominantly
extra-‐provincial
as
well
as
international
character
and
implications,
is
clearly
a
matter
of
concern
to
! The
word
emergency
need
not
be
used
in
the
Act
for
the
Act
to
be
upheld
Canada
as
a
whole.
under
the
emergency
test
of
the
pogg
power
HELD:
s
4(1)
is
constitutionally
valid
as
enacted
in
relation
to
a
matter
falling
w/iin
Richie
J’s
Judgment:
the
national
concern
branch
of
the
peace
order
and
good
government
power
! An
“emergency”
exists
where
there
can
be
said
to
be
an
urgent
and
critical
situation
adversely
affecting
all
Canadians
and
being
of
such
proportions
as
ANTI
INFLATION
REFERENCE
(Deals
with
the
emergency
branch)
to
transcend
the
authority
vested
in
the
Legislatures
of
the
Provinces
and
FACTS:
The
Anti-‐Inflation
Act
passed
in
1975,
on
recommendation
of
the
Bank
of
thus
presenting
an
emergency
which
can
only
be
effectively
dealt
with
by
Canada,
to
control
the
growing
inflation
of
the
past
several
years.
Parliament
in
the
exercise
of
the
powers
conferred
upon
it
by
s.
91
of
the
British
North
America
Act
"to
make
laws
for
the
peace,
order
and
good
ISSUE:
Whether
the
social
/
economic
circumstances
allow
parliament
to
use
POGG
government
of
Canada
HELD:
Act
was
not
ultra
vires
to
the
federal
parliament.
! The
Anti-‐Inflation
Act
is
valid
legislation
for
POGG
having
regard
to
its
[DEFINITION
OF
EMERGENCY]
temporary
character
it
doesn’t
invade
provincial
legislative
jurisdiction
[So,
! The
authority
of
Parliament
is
limited
to
dealing
with
critical
conditions
and
the
legislation
must
be
temporary
in
nature,
otherwise
it
would
be
seen
as
the
necessity
to
which
they
give
rise
must
be
confined
to
legislation
of
a
invading
provincial
jurisdiction)
TEMPORARY
CHARACTER
[REQUIREMENT]
PRINCIPLE:
all
you
need
to
show
is
that
a
rational
basis
for
finding
that
an
! In
order
to
determine
whether
the
legislation
in
question
was
enacted
to
emergency
exists-‐
don’t
need
definitive
conclusions
combat
such
an
emergency,
it
is
necessary
to
examine
the
legislation
itself
• It
is
not
necessary
for
the
proponents
of
the
legislation
to
establish
a
(i.e.
look
at
the
preamble
etc)
[Here,
the
preamble
recognized
the
fact
that
rational
basis,
it
is
for
the
opponents
of
the
legislation
to
establish
the
inflation
at
current
levels
was
contrary
to
the
interest
of
all
Canadians]
absence
of
a
rational
basis
[RULE]
Page
32
of
86
[6]
Criminal
Law-‐
CONSTITUTION
ACT
,
1867,
S
91(27),
S
92(15)
o When
the
margarine
legislation
was
first
enacted
by
fed
parliament
the
preamble
asserted
that
margarine
was
“injurious
to
health”-‐
if
it
Distribution
of
Powers
had
been
the
continuing
basis
of
the
legislation,
it
would
have
! S
91(27),
Constitution
Act
1867,
confers
on
the
federal
Parliament
the
power
satisfied
the
requirement
of
criminal
public
purpose
o Medical
facts
that
margarine
was
not
injurious
to
health-‐
destroyed
to
make
laws
in
relation
to:
the
criminal
law,
except
the
constitution
of
courts
what
was
originally
a
secure
criminal
law
foundation
for
the
of
criminal
jurisdiction,
but
including
the
procedure
in
criminal
matters
legislation
! Under
this
provision
criminal
law=
federal
responsibility
! However,
for
the
most
part,
Criminal
Code
is
enforced
by
the
provinces;
and
! Food
and
drug
legislation
making
illegal
the
manufacture
or
sale
of
dangerous
the
decisions
to
investigate,
charge
and
prosecute
offences
are
therefore
products,
adulterated
products
is
within
the
criminal
law
power
(R
v
matters
of
provincial
policy
which
will
no
doubt
be
framed
in
response
to
local
Wetmore)
conditions
and
sentiments.
! If
the
purpose
of
the
federal
food
and
drug
standard
is
related
to
health
and/or
the
minimization
of
deception,
then
the
law
can
be
upheld
under
the
! Provincial
role
in
criminal
justice
derives
from
s
92(14)
which
confers
on
the
provincial
Legislatures
the
power
to
make
laws
in
relation
to:
the
criminal
power
(Labatt
Breweries
v
A-‐G
Canada)
administration
of
justice
in
the
province,
including
the
constitution,
maintenance
and
organization
of
provincial
courts,
both
of
civil
and
of
criminal
(b) Illicit
Drugs
jurisdiction,
and
including
procedure
in
civil
matters
in
those
courts
! Schneider
v.
The
Queen:
SCC
upheld
the
BC
Heroin
Treatment
Act,
which
provided
for
the
compulsory
apprehension,
assessment
and
treatment
of
drug
! Provinces
have
“ancillary”
(secondary/supplementary)
power
to
punitive
addicts;
the
treatment
could
include
compulsory
detention
for
up
to
6
months.
provisions
(“fine,
penalty
or
imprisonment”)
in
valid
provincial
laws
(s
92(15))
o Argument
that
this
was
really
a
criminal
law
was
based
on
the
Definition
of
Criminal
Law
deprivations
of
liberty
that
were
authorized
by
the
Act.
3
ingredients
to
the
criminal
law
power:
o Yet
the
coercive
elements
of
the
Act
were
incidental
to
its
public
(1) A
prohibition;
health
purpose.
Held
to
be
a
local
or
private
matter
(provincial).
(2) Coupled
with
a
penalty;
(c) Tobacco
(3) With
a
criminal
public
purpose:
! e.g.
non-‐
exhaustive
list:
public
peace,
order,
security,
health,
morality,
! RJR
MacDonald
v
Canada:
prohibition
on
advertising
cigarettes
falls
with
etc
(Margarine
reference)
criminal
law
power-‐
parliament
can
use
indirect
means
! **Note:
there
is
no
harm
requirement
for
a
law
to
be
valid
(Malmo-‐
o Federal
Tobacco
Act
did
2
things:
require
placement
of
health
warning
Levine);
the
criminal
law
power
can
serve
economic
ends
(eg
PATA
labels
on
cigarette
packs
and
prohibited
the
advertising
of
cigarettes
case);
a
criminal
purpose
may
be
pursued
by
indirect
means
(RJR-‐
and
other
tobacco
products.
For
the
warning
label
requirement,
the
MacDonald
v
Canada,
eg
health
risks
of
tobacco
did
not
require
the
law
was
valid
because
the
valid
criminal
purpose
of
protecting
health.
o The
ban
on
advertising?
Parliament
clearly
can
prohibit
the
sale,
outright
banning
of
cigarettes,
and
could
have
been
pursued
by
possession
and
manufacture
of
dangerous
products
(Irwin
Toy),
but
it
limiting
advertising)
Food
&
Drugs
had
not
done
that
here.
Yet,
majority
said
the
power
to
prohibit
the
(a) Food
and
drug
standards:
use
of
tobacco
on
account
of
its
harmful
effects
encompassed
the
power
to
take
the
lesser
step
of
prohibiting
advertising
(so,
the
MARGARINE
REFERENCE
1949
criminal
law
power
can
be
used
indirectly
to
achieve
a
criminal
law
A
prohibition
on
the
manufacture
or
sale
of
margarine
was
struck
down
on
purpose)
o Struck
down
on
freedom
of
expression.
But
held
to
be
criminal
valid.
the
basis
that
the
purpose
of
the
legislation
was
the
economic
one
of
protecting
the
dairy
industry
(invalid)
–
Rand
J.
Page
33
of
86
Health
Gun
Control
! Health
is
not
a
single
matter
assigned
by
the
Constitution
exclusively
to
one
! In
1995,
the
federal
Parliament
amended
Code
provisions,
by
enacting
the
level
of
government-‐
it
is
distributed
depending
on
the
purpose
and
effect
of
Firearms
Act
which
expanded
rules
by
requiring
ALL
gun
owners
to
be
licensed
the
particular
heath
measure
! The
SCC
upheld
the
validity
of
this
legislation
under
the
criminal
law
power
in
! As
the
above
food
and
drugs
illustrates,
there
is
a
criminal
law
aspect
of
Re
Firearms
Act
health,
authorizing
federal
legislation
under
s
91(27)
to
punish
conduct
that
is
! Public
purpose
of
the
Act:
guns
inherently
dangerous,
Act
directed
at
safety
dangerous
to
health
to
restrict
access
to
inherently
dangerous
things
Environmental
Protection
Prevention
of
Crime
! The
protection
of
the
environment
(which
extends
beyond
the
protection
of
(a) Prevention
in
general
human
health)
is
a
public
purpose
that
would
support
a
federal
law
under
the
! A
law
may
be
validly
enacted
“in
relation
to”
criminal
law,
although
the
law
criminal
law
power
(R
v
Hydro-‐
Quebec)
itself
does
not
have
the
characteristics
of
a
criminal
law
! Laws
aimed
at
the
prevention
of
crime,
for
example,
binding
over
a
person
to
Competition
Law
keep
the
peace
or
controlling
the
possession
of
guns
! Economic
activity
ignores
provincial
boundaries
and
labour,
capital
and
! Laws
of
this
kind
are
valid,
although
they
depart
from
the
traditional
format
of
technology
are
highly
mobile
–
difficult
to
regulate
anti-‐competitive
practice
at
criminal
law
provincial
levels.
(b) Young
offenders
[preamble
said
‘not
criminals’]
! Originally
invalid
under
criminal
law
power
(Board
of
Commerce)
then
valid
! Young
Offenders
Act
made
provision
for
diversion
programs
under
which
(P.A.T.A)
(Atkin
–
if
parliament
believes
bad
to
public
then
so
be
it)
young
offenders
could
be
diverted
from
criminal
courts
–
these
programs
were
o The
P.A.T.A
case
established
that
the
criminal
law
power
was
capable
upheld
as
an
exercise
of
the
preventative
aspect
of
the
criminal
law
power
of
expansion
into
the
world
of
commerce
after
it
upheld
federal
legislation
which
dealt
with
restraint
of
trade
issues
Criminal
Law
and
Civil
Remedy
(a) Federal
power
generally
to
create
civil
remedies
! BUT
Now
upheld
under
Trade
and
Commerce
clause
! The
federal
Parliament
has
no
independent
power
to
create
civil
remedies
o The
criminal
aspect
of
the
Act
in
PATA,
due
to
changes
in
competition
similar
to
its
power
over
criminal
law.
This
means
that
if
the
pith
and
law,
have
diminished,
and
the
relevant
power
for
the
most
part
is
substance
of
a
federal
law
is
the
creation
of
a
new
civil
cause
of
action,
the
law
trade
and
commerce.
will
be
invalid
as
coming
within
the
provincial
head
of
power
of
property
and
civil
rights
(MacDonald
v
Vapor
Canada)
Sunday
Observance
Law
! Where
the
pith
and
substance
of
a
federal
law
is
not
the
creation
of
a
civil
! Religious
purpose
of
Lord’s
Day
Act
originally
makes
it
valid
federal
law,
remedy,
but
is
some
other
matter
within
federal
power,
there
is
no
reason
to
eventually
invalidate
it
under
Charter.
(prohibits
work
on
Sundays)
doubt
the
validity
of
a
civil
remedy
provided
for
enforcement
of
the
law-‐
the
remedy
is
valid
as
incidental
to
the
main
purpose
of
the
law
(Papp
v
Papp)
(a) Federal
power
[religious
purpose]
o Big
M
Drug
Mart:
confirmed
that
the
criminal
law
power
can
be
used
to
! Since
Papp
v
Papp
the
SCC
has
used
the
‘functional
connection”
test
to
uphold
legislate
in
relation
to
the
purpose
of
preserving
the
sanctity
of
the
a
civil
remedy
in
federal
corporation
law,
against
persons
who
engage
in
Christian
Sabbath
(and
observance
of
days
of
religious
significance)-‐
comes
insider
trading,
a
civil
remedy
in
federal
competition
law
etc
within
safeguarding
morality
"
[religious
purpose
crucial
to
federal
o Case
about
fed
divorce
act
"
provision
about
child
custody
(prov).
power]
(b) Criminal
law
power
to
create
civil
remedies
(b) Provincial
power
[secular
purpose]
[Edwards
Books
–
REL
"
Secular
>
time]
! In
R
v
Zelensky,
the
SCC
upheld
a
provision
of
the
Criminal
Code
that
o Laws
which
provide
“pause
days”
or
restrict
business
hours,
and
which
have
authorized
a
criminal
court,
upon
convicting
an
accused
of
an
indictable
secular
purposes,
are
valid
under
the
property
and
civil
rights
prov
power
offence,
to
order
the
accused
to
pay
the
victim
compensation
for
any
loss
or
damage
Page
34
of
86
Criminal
Law
and
Regulatory
Authority
! The
elusiveness
of
that
distinction
creates
uncertainty
about
the
scope
of
! Criminal
power
generally
wont
sustain
a
regulatory
regime/
scheme
which
provincial
power
under
s
92(15)
as
well
as
the
scope
of
federal
power
s
91(27)
relies
upon
more
sophisticated
tools
than
a
simple
prohibition
and
penalty
Provincial
/
Federal
Distinction
in
making
Criminal
Laws:
! E.g
Nova
Scotia
Board
of
Censors
v
McNeil:
SCC
held
that
the
censorship
of
! Provincial
power
to
create
offences
under
s
92(15)
is
not
as
broad
as
the
films
was
not
criminal.
Court
upheld
censorship
law
as
being
the
regulation
of
federal
power
to
create
offences
under
s
91(27)
an
industry
within
the
province
(property
and
civil
rights)
! Where
the
penalties
are
imposed
in
respect
of
matters
over
which
the
! R
v
Hydro-‐
Quebec:
HQ
was
prosecuted
for
violating
an
interim
order
that
provinces
ordinarily
have
legislative
jurisdiction
(eg.,
property,
streets,
parks,
restricted
the
emission
of
a
substance
to
one
gram
per
day.
Majority
upheld
businesses
activity),
the
provincial
law
is
likely
to
be
valid.
the
Act
as
a
criminal
law.
“because
the
administrative
procedure
for
assessing
-‐-‐-‐-‐-‐-‐VS-‐-‐-‐-‐-‐
the
toxicity
of
the
substances
culminated
in
a
prohibition
enforced
by
a
penal
! Where
the
provincial
offence
cannot
safely
be
anchored
in
property/
civil
right
sanction,
the
scheme
was
sufficiently
prohibitory
(Re
Firearms
Act
affirms
or
some
other
head
of
provincial
power,
then
It
will
be
invalid
(Westendorp)
this
reasoning
–
regulation
of
firearms
(licensing)
scheme
=
prohibition).
Chatterjee
v
Ontario
[2009]
SCC
REFERENCE
RE
ASSISTED
HUMAN
REPRODUCTION
ACT
2010
o Police
pulled
car
over
and
found
money
that
smelled
of
marijuana
o 1989
the
federal
government
established
the
Royal
Commission
on
New
o The
police
laid
no
charges
but
sought
to
keep
the
money
through
a
Reproductive
Technologies
(“Baird
Commission”)
to
study
assisted
human
provincial
act
that
allowed
them
to
keep
“proceeds
of
unlawful
reproduction.
The
commission
expressed
concern
about
certain
practices
activity”
in
the
field
and
pressed
for
legislation
o Its’
stated
purpose
was
to
prevent
persons
from
profiting
from
o Between
1993-‐
1995
the
federal
government
consulted
with
the
unlawful
activity
provinces,
the
territories
and
independent
groups
for
advice
which
o The
driver
applied
for
a
declaration
that
the
Civil
Remedies
Act
was
resulted
in
the
passage
of
the
Assisted
Reproduction
Act
2004
unconstitutional
o The
Act
contains
prohibitions
and
other
provisions
designed
to
administer
o He
relied
solely
on
the
federalism
argument,
and
argued
that
the
Act
and
enforce
them
(eg
prohibiting
cloning…)
was
an
intrusion
into
the
federal
realm
of
Criminal
law
o The
A-‐G
of
Quebec
argued
that
although
some
of
the
provisions
were
o Held
that
the
pith
and
substance
of
the
law
was
related
to
property
invalid
criminal
law,
certain
sections
were
attempts
to
regulate
the
whole
o Forfeiture
measures
in
the
Criminal
Code
were
only
related
to
sector
of
medical
practice
and
research
related
to
assisted
reproduction
sentencing
so
the
provincial
forfeiture
measures
were
considered
and
thus
were
ultra
vires.
The
Quebec
Court
of
Appeal
held
that
the
independent
impugned
sections
were
not
valid
criminal
law
since
their
pith
and
o Held
it
was
within
provincial
competence
and
the
Act
was
upheld
substance
was
the
regulation
of
medical
practice
and
research
to
assisted
reproduction
MAIN CASES FOR CRIMINAL LAW:
o Held
the
appeal
should
be
allowed
in
part
and
some
of
the
provisions
were
struck
down
RE: FIREARMS ACT
FACTS: Alberta directs a reference to the Alberta Superiour Court to examine constitutionality
Provincial
Power
to
Enact
Penal
Laws
of the legislation (not its desirability).
ISSUE: Does the act, in P&S, refer to criminal law powers? YES—regulatory aspects are
! Provincial
Legislatures
have
the
power
under
s
92(15)
to
impose
‘punishment
secondary to the form of prohibition and penalty.
by
fine,
penalty,
or
imprisonment’
for
the
purpose
of
enforcing
otherwise
valid
REASONS:
provincial
laws
• The legislation’s dominant characteristic is public safety, which is a traditional
! However,
the
power
requires
the
courts
to
draw
a
distinction
between
a
valid
criminal law purpose. There’s also a form of prohibition and penalty.
provincial
law
with
an
ancillary
penalty
and
a
provincial
law
which
is
invalid
as
being
In
pith
and
substance
a
criminal
law
IMPORTANT
Page
35
of
86
• It doesn’t matter that the regulatory regime is complex. Here, there’s no regulatory
agency or administrator, not an official with broad discression. What discression they REFERENCE RE ASSISTED HUMAN REPRODUCTION ACT, 2010 SCC
have is restricted.
• Unlike regulation of cars and property, guns have a dangerous nature. FACTS:
• It doesn’t matter it there are incidental effects onto provincial jurisdiction over • The Court of Appeal was asked by the Government of Quebec to answer the following
property and civil rights here—the law’s dominant feature is still federal. question:
• The provinces may still regulate guns via hunting laws if they want to—there are no Are sections 8 to 19, 40 to 53, 60, 61 and 68 of th eAssisted Human Reproduction
watertight compartments here. Act, S.C. 2004, ultra vires the Parliament of Canada in whole or in part under
• A dbl aspect area has been created here, which doesn’t exactly prohibit Alberta’s the Constitution Act, 1867?
ability to legislate regarding a gun registry—they might just end up at paramountcy or
IJI. HELD: The Court ruled in the affirmative in all respects of the question. (Rare 4-4-1 split)
• It doesn’t matter if this act is discriminatory against northern and rural communities, REASONS:
because the court is not to look at the desirability of the legislation in question. The McLachlin opinion: constitutionally valid
• The dominant purpose and effect of the legislative scheme is to prohibit (Prohibition)
practices that would undercut moral values, produce public health evils, and threaten the
MARGARINE REFERENCE security of donors, donees, and persons conceived by assisted reproduction.
FACTS: the feds banned the import of margarine • Here, the matter of the statutory scheme, viewed as a whole, is a valid exercise of the
REASONS: federal power over criminal law.
• Under Section 91(27) of the Constitution Act, 1867, Parliament receives exclusive The LeBel/Deschamps opinion: unconstitutional
powers to legislate in regard to the criminal law. • The impugned provisions represent an overflow of the exercise of the federal criminal law
• The precise meaning of the criminal law power, however, had proved controversial. power.
In the Board of Commerce case, the JCPC seemingly chose to define criminal law • Their pith and substance is connected with the provinces’ exclusive jurisdiction over
power as limited to prohibiting only what was criminal in 1867. hospitals, property and civil rights, and matters of a merely local nature.
• This was overturned in Proprietary Articles Trade Assn. v. A.-G. Can. (1931), in The Cromwell opinion: constitutional, to extent that they relate to constitutionally valid
which it was found criminal law means Parliament could legitimately prohibit any act • The matter of the impugned provisions is regulation of virtually every aspect of research
"with penal consequences." The problem with the latter decision was that it gave and clinical practice in relation to assisted human reproduction. The matter of the
Parliament an excuse to legislate in regard to many matters. challenged provisions is best classified as relating to the establishment, maintenance and
• In this case, Parliament had legislated against the production and trade of management of hospitals, property and civil rights in the province and matters of a merely
margarine, in order to give dairy businesses assurances that margarine would not local or private nature in the province. However, ss. 8, 9 and 12 in purpose and effect
threaten their existence prohibit negative practices associated with assisted reproduction and fall within the
• This legislation actually dated back to 1886, and it was claimed in the law that the traditional ambit of the federal criminal law power.
real purpose was to target a product that was "injurious to health.
HELD:
• The prohibition of manufacture, offer, sale or possession for sale of the goods
mentioned is ultra vires of Parliament, as it is legislation in relation to property
• The prohibition of importation of the goods mentioned in the section is intra
vires of Parliament as legislation in relation to foreign trade
From this, two requirements must be met for a law to be criminal in nature:
(1) The law must be a prohibition with a penal sanction; and
(2) The law must be directed towards a public purpose.
o Rand also listed a few objectives that would qualify as legitimate public
purposes, namely "Public peace, order, security, health, morality."
Page
36
of
86
HUMAN
RIGHTS
&
FREEDOMS
! In
this
case
the
challenged
provisions
were
in
relation
to
commerce
within
the
province,
which
was
a
matter
within
the
provincial
jurisdiction
over
property
and
civil
rights
in
the
province
(s92(13))
[1]
Language
Rights-‐
CONSTITUTION
ACT
1867,
S
133
Language
of
Constitution
2
major
areas
of
discussion:
! Constitution
Act
1867
was
enacted
in
English
only
(the
French
version
that
is
i.
Distribution
of
powers
over
language
to
be
found
in
the
Appendix
to
the
Revised
Statutes
of
Canada
is
unofficial)
ii.
Constitutional
protections
for
minority
languages
! S
55,
Constitution
Act
1982
directs
the
Minister
of
Justice
to
prepare
a
French
version
of
the
English-‐only
parts
of
the
Constitution
of
Canada,
and
to
put
it
! English
and
French
(languages
of
European
founders
of
Canada)
have
special
forward
for
adoption
as
an
official
text
by
the
appropriate
amending
constitutional
recognition
procedures.
! Right
to
speak
Aboriginal
languages
is
probably
protected
by
s
35,
Constitution
! So
long
as
the
French
version
of
the
Constitution
Act
1867
remains
unofficial
Act
1982
any
discrepancy
between
the
English
and
French
version
would
have
to
be
! Immigrant
groups
have
language
interests
resolved
by
recourse
to
the
English
version,
because
that
is
the
only
authoritative
one
Distribution
of
Powers
over
Language
! Canada
Act
and
Constitution
Act
1982
were
enacted
by
UK
in
BOTH
languages
! S
57,
Constitution
Act
1982,
provides
that
the
English
and
French
versions
of
! Language
is
NOT
one
of
the
classes
of
subjects
(or
heads
of
legislative
power)
that
Act
are
“equally
authoritative”
which
the
Constitution
Act
1867
enumerates
and
distributes
to
the
2
levels
of
! The
rule
of
equal
authority
is
the
only
appropriate
one
for
a
bilingual
country,
government.
but
it
does
not
tell
us
how
to
resolve
discrepancies
between
the
English
and
! Cases
decide
that
language
is
NOT
an
independent
matter
of
legislation
(or
French
versions
constitutional
value)
! Since
confederation,
federal
statues
have
been
enacted
in
both
languages,
! A
law
prescribing
that
a
particular
language
or
languages
must/may
be
used
in
because
that
was
required
by
s
133
of
the
Constitution
Act
1867
certain
situations
will
be
classified
not
as
a
law
in
relation
to
language,
but
as
a
law
in
relation
to
the
institutions
or
activities
that
the
provision
covers
Discrepancies
Arise:
! Courts
have
held
that
the
English
and
French
versions
are
equally
authoritative
Jones
v
Attorney
General
of
New
Brunswick
1974:
(king
v
Dubois)
and
have
developed
rules
for
resolving
discrepancies:
(these
! SCC
upheld
the
federal
Official
Languages
Act
which
purported
to
make
the
rules
should
be
applied
to
the
bilingual
texts
of
the
Constitution
of
Canada)
English
and
French
languages
the
official
languages
of
Canada
“in
the
! Where
one
language
version
is
doubtful
or
ambiguous
and
the
other
is
clear;
institutions
of
the
Parliament
and
Government
of
Canada
the
doubt
or
ambiguity
is
resolved
by
reference
to
the
clear
version
(king
v
! Court
held
that
the
law
was
authorized
by
federal
power
over
federal
Dubois)
governmental
and
parliamentary
institutions
(which
stemmed
from
the
pogg
! Where
there
is
a
divergence
between
the
2
language
versions,
that
meaning
power).
Also
stemmed
from
enumerated
classes
(procedure,
courts
–
federal).
should
be
selected
that
is
compatible
with
both
versions
(Jones
and
Maheux
! Since
Jones
was
decided,
the
court
has
held
that
the
pogg
power
should
be
v.
Gamache)=
general
rule
(however,
the
meaning
selected
must
be
confined
to
subjects
of
legislation
that
are
relatively
narrow
and
specific,
and
it
reasonable
in
the
context
of
the
statute)
seems
likely
that
the
subject
of
language
would
be
too
broad
to
qualify
! If
one
language
version
gives
better
effect
to
the
purpose
of
the
statute,
then
that
version
should
be
selected,
even
if
a
narrower
meaning
would
be
Devine
v.
Quebec
1988
common
to
both
versions
(The
Queen
v.
Compagnie
Immobiliere)
! SCC
upheld
various
provisions
of
Quebec’s
Charter
of
the
French
Language
that
regulated
the
language
of
commerce;
they
required
the
use
of
the
French
language
in
public
signs,
commercial
advertising,
brochures
etc
Page
37
of
86
Language
of
Statutes
!Reason
for
s
23
was
to
guarantee
the
rights
of
the
French-‐
speaking
minority
(a) Constitutional
requirements
in
Manitoba
! Only
explicit
guarantee
of
language
rights
in
the
Constitution
Act,
1867
is
contained
in
s
133:
! The
Manitoba’s
Official
Language
Act
1890
provided
that
“the
English
language
only”
shall
be
used
in
the
records
and
journals
of
the
Legislatures,
“English
or
French
to
be
used
in
debates
in
the
Houses
of
the
federal
and
in
pleading
and
process
in
Manitoba
courts.
In
effect,
an
attempt
to
repeal
Parliament
and
Quebec
Legislature;
it
requires
both
English
and
French
to
be
most
of
s
23
of
Manitoba
Act
used
in
the
records
and
journals
of
those
Houses;
and
it
requires
the
statutes
of
the
federal
Parliament
and
Quebec
Legislature
to
be
printed
and
published
In
Re
Manitoba
Language
Rights
1985
case,
held
the
statue
was
invalid
in
both
languages.
It
also
provides
that
either
English
or
French
may
be
used
in
o SCC
confirmed
that
the
failure
to
comply
with
s
23’s
requirement
of
any
pleading
or
process
in
the
federal
courts
of
Quebec
courts)
bilingual
enactment
resulted
in
the
invalidity
of
the
purported
statute
o Almost
all
Manitoba
Statutes
were
held
invalid
because
enacted
in
! Applies
ONLY
to
the
legislative
bodies
(and
courts)
of
the
federal
government
English
only,
contrary
to
s
23
and
of
Quebec.
S
133
does
not
apply
to
the
Legislature
(and
courts)
of
any
! Temporary
suspension
of
invalidity
-‐
Court
declared
that
the
province
other
than
Quebec.
province’s
statutes
were
to
be
“deemed
to
have
temporary
force
and
effect
for
the
minimum
period
necessary
for
their
! HOWEVER,
the
Manitoba
Act
1870
includes,
as
s
23,
a
provision
that
provides
translation,
re-‐enactment,
printing
and
publication”
for
the
use
of
English
and
French
in
the
Legislature
(and
courts)
of
Manitoba
in
! Could
not
allow
English
to
prevail
over
French
if
conflict-‐
terms
very
similar
to
s
133
equal
authority
given
to
both,
no
inferiority
of
one
language
! The
Charter
of
Rights,
which
is
Part
I
of
the
Constitution
Act,
1982
incudes
as
ss
16
to
23
a
variety
of
language
provisions
(d) Incorporation
by
Reference
! General
rule:
where
a
statute
makes
reference
to
another
document
so
as
to
(b) Quebec’s
Charter
of
the
French
language
incorporate
(or
adopt)
the
document
as
part
of
the
statute,
then
if
there
is
a
A-‐G
of
Quebec
v.
Blaikie
1979:
constitutional
requirement
that
the
incorporating
statute
be
in
both
o Quebec’s
Charter
of
the
French
Language
(making
French
the
sole
languages,
then
the
requirement
will
apply
to
the
incorporated
document
as
language
of
the
legislature)
does
not
supersede
s
133-‐
must
be
official
well
(not
an
absolute
rule
though).
statutes
in
both
languages
in
Quebec
! A-‐G
of
Quebec
v
Collier
1985:
2
Quebec
statutes
(enacted
in
both
English
and
o Held
unofficial
ENG
translations
did
not
meet
the
s
133
requirement
French)
were
held
unconstitutional
as
they
incorporated
by
reference
! s
133’s
requirement
that
the
statutes
be
“printed
and
published’
in
both
unilingual
session
papers
(in
French
only)
(which
were
an
integral
part
of
the
languages
should
be
interpreted
as
a
requirement
of
“enactment
in
both
statutes)
and
thus
infringed
s
133
of
the
Constitution
Act
1867
languages”,
especially
in
light
of
the
requirement
that
the
‘records
and
journals”
of
the
Legislature
should
be
in
both
languages
(e) Delegated
legislation
! Statutes
enacted
in
French
only
were
invalid
! S
133
requirements,
as
a
general
rule,
apply
to
delegated
legislation,
as
well
as
to
statutes.
Thus,
delegated
legislation
must
be
in
ENG
and
FRENCH.
(c) Manitoba’s
Official
Language
Act
! A-‐G
of
Quebec
v.
Blaikie:
bilingualism
requirement
under
s
133
of
Constitution
! Manitoba
Act
1870
s
23-‐
provides
for
the
use
English
and
French
in
the
Act
1867
applied
to
statutes
and
regulations
Legislature
(and
courts)
of
Manitoba
in
terms
similar
to
s
133
! A-‐G
of
Quebec
v.
Blaikie
(no
2)
(1981):
s
133
only
applied
to
the
provincial
government
(ie,
excluded
municipal
by-‐
laws
and
school
boards),
courts
and
s
23:
either
the
English
or
the
French
languages
may
be
used
by
any
person
in
the
quasi-‐judicial
tribunals
(eg
rules
of
practice)
debates
of
the
Houses
of
the
Legislature,
and
both
those
languages
shall
be
used
! Re
Manitoba
Language
Rights
(No
3)
(1992):
SCC
held
that
s
23
applied
only
in
the
respective
records
and
journals
of
those
Houses;
and
either
of
those
to
“instruments
of
a
legislative
nature”.
An
instrument
would
have
3
languages
may
be
used
by
any
person,
or
in
any
pleading
or
process,
in
or
issuing
characteristic:
(1)
it
would
establish
a
“rule
of
conduct”;
(2)
it
would
have
the
from
any
Court.
The
Acts
of
the
Legislature
shall
be
printed
and
published
in
both
“force
of
law”;
(3)
it
would
be
“of
general
application
rather
than
directed
at
those
languages.
Page
38
of
86
specific
individuals
or
situations”
(the
obligation
of
bilingual
enactment
applied
o But
the
fair-‐
hearing
right
to
be
heard
and
understood
by
a
court
was
only
to
instruments
possessing
those
3
characteristics)
not
a
language
right
and
it
extended
to
those
who
spoke
or
understood
neither
official
language
Language
of
Courts
o It
had
not
been
breached
in
this
case
because
the
judge’s
alleged
incompetence
in
French
had
not
been
established
as
a
matter
of
fact
(a) Constitutional
requirements
o Court’s
CURRENT
position:
language
rights
deserve
large,
liberal
! S
133
of
Constitution
Act
1867
requires
that
either
French
or
English
“may
be
interpretation
(DesRochers,
SCC
2009)
used
by
any
person
or
in
any
pleading
or
process
in
or
issuing
from
any
Court
of
Canada
established
under
this
Act,
and
in
or
from
all
or
any
of
the
Courts
of
Language
of
Government
Quebec
! Previous
sections
addressed
the
constitutional
requirements,
in
the
federal
! S
23
of
the
Manitoba
Act
1870
imposes
similar
requirement
on
the
courts
of
jurisdiction,
Quebec,
Manitoba,
and
New
Brunswick,
with
respect
to
the
use
of
Manitoba
the
English
and
French
languages
in
legislative
bodies
and
courts
! Section
19(2)
of
the
Charter
of
Rights
imposes
a
similar
requirement
on
the
! We
have
noticed
that
limited
form
of
bilingualism
that
is
required
by
s
133
of
courts
of
New
Brunswick
Constitution
Act
1867,
s
23
Manitoba
Act
1870,
and
ss
16
to
20
of
Charter
! The
courts
of
the
other
7
provinces
are
under
NO
similar
constitutional
Rights.
obligation
! But
two
provisions
of
the
Charter
–
ss
16
and
20
go
beyond
legislative
bodies
! Quebec’s
Charter
of
the
French
Language
provide
that,
in
the
courts
of
and
courts
Quebec,
French
was
to
be
the
language
of
pleading
and
process,
except
in
certain
defined
circumstances
S
16
of
the
Charter
provides:
ENG
and
FRENCH
“Official
Lang
of
Canada”
! But…
A-‐G
of
Quebec
v
Blaikie
1979:
court
held
litigants
in
the
courts
of
16(1):
English
and
French
are
the
official
languages
of
Canada
and
have
equality
of
Quebec
able
to
have
the
option
of
using
English
in
any
pleading
or
process)
status
rights
and
privileges
as
to
their
use
in
all
institutions
of
the
Parliament
and
government
of
Canada
16(2):
English
and
French
are
the
official
languages
of
New
Brunswick
and
have
(b) Language
of
Process
equality
of
status
and
equal
rights
and
privileges
as
to
their
use
in
all
! Can
be
in
either
English
or
French
institutions
of
the
legislature
and
government
of
New
Brunswick
16(3):
Nothing
in
this
Charter
limits
the
authority
of
Parliament
or
a
legislature
to
MacDonald
v.
City
of
Montreal
1986:
advance
the
equality
of
status
or
use
of
English
and
French
(in
other
words,
! An
English-‐
speaking
person
issued
French
summon
for
speeding.
Challenged.
legislatures
can
provide
rights
beyond
those
guaranteed
in
the
Charter)
! Majority:
s
133
does
not
give
the
right
to
choose
the
language
of
the
process
or
right
to
be
understood
Section
20
of
Charter
:Obligation
on
Gov’t
to
provide
bilingual
services
to
pub
Beetz
J:
language
rights
are
different
than
other
human
rights-‐
it
flows
from
20(1):
any
member
of
the
public
in
Canada
has
the
right
to
communicate
with,
and
politics,
not
principle
=
narrower
interpretation
to
receive
available
services
from,
any
head
or
central
office
of
an
institution
Wilson
J.
(Dissent):
s
133
implies
a
duty
to
accommodate
English
and
French
of
the
Parliament
or
government
of
Canada
in
English
or
French,
and
has
the
same
right
with
respect
to
any
other
office
of
any
such
institution
where
speakers
(wide
interpretation).
(a)
there
is
a
significant
demand
for
communications
with
and
services
from
that
office
in
such
language;
or
(c) Language
of
proceedings
(b)
Due
to
the
nature
of
the
office,
it
is
reasonable
that
communications
with
Societe
des
Acadiens
v.
Association
of
Parents
1986:
and
services
from
that
office
be
available
in
both
English
and
French
! Claimed
one
of
the
3
judges
did
not
understand
French
21(2):
any
member
of
the
public
in
New
Brunswick
has
the
right
to
communicate
! Beetz
J
repeats
MacDonald
view
for
majority
(case
above)
with,
and
to
receive
available
services
from,
any
head
or
central
office
of
an
! Makes
a
distinction
between
language
rights
and
right
to
fair
hearing:
institution
of
the
Parliament
or
government
of
New
Brunswick
in
English
or
! Beetz
J
in
this
case
points
out
that
a
right
to
a
fair
hearing,
which
was
French
recognized
by
the
common
law
rules
of
natural
justice
and
which
was
protected
by
ss
7
to
14
of
the
Charter,
would
be
offended
by
a
presiding
judge’s
failure
to
comprehend
the
evidence
or
argument
Page
39
of
86
DesRochers
v
Canada
2009:
language
at
school,
then
constitutionally
protected
by
s93.
Yet
the
! English
and
French
services
must
be
of
equal
quality
court
held
that
classes
of
peoples
is
specific
to
Roman
Catholic
class
! Equality
is
substantive
–
users
of
service
must
be
getting
equal
benefits
and
NOT
language
or
race
classes.
! Like
other
language
rights,
s20
should
be
given
a
liberal
and
purposive
interpretation
–
when
s20
applies,
the
principle
of
equality
of
both
languages
S
23
of
Charter:
Minority
Language
Rights
guaranteed
by
s16
must
be
respected.
o Minority
language
rights
have
now
been
provided
for
in
s
23
o Confers
upon
citizens
of
Canada
who
are
members
of
the
English
Language
of
Commerce
speaking
minority
in
Quebec
or
the
French
speaking
minority
in
the
! None
of
the
language
rights
in
the
Constitutions
of
Canada
protects
the
use
other
provinces
‘the
right
to
have
their
children
receive
primary
and
of
the
English
or
French
language
in
commercial/
private
settings.
secondary
school
instruction
in
the
minority
language
in
that
BUT
province.”
This
right
is
possessed
by
parents
who
fit
into
1
of
3
! Language
laws
may
offend
the
freedom
of
expression
(Charter
s2(b))
categories:
(1)
the
mother
tongue
of
the
parent
Ford
v
Quebec
1988:
! Does
not
apply
in
Quebec
unless
Quebec
decides
to
adopt
it
(s
• SCC
struck
down
the
provisions
of
Quebec’s
Charter
of
the
French
Language
59
of
Constitution
Act
1982)
that
required
commercial
signs
and
advertisements
to
be
in
French
only.
(2)
the
language
of
primary
school
instruction
in
Canada
of
the
• The
court
held
that
freedom
of
expression
included
“the
freedom
to
express
parent
oneself
in
the
language
of
one’s
choice.”
! AG
Quebec
Protestant
School
• It
followed
that
the
prohibition
of
the
use
of
any
language
other
than
French
(3)
The
language
of
instruction
in
Canada
of
one
child
of
the
parent
was
a
breach
of
freedom
of
expression.
! There
is
a
qualification
to
s93
though.
The
right
is
not
an
• The
court
also
held
that
while
s
1
would
save
some
laws,
a
total
prohibition
of
absolute
one
(can
be
invoked
“only
where
numbers
warrant”)
other
languages
on
commercial
signs/advertisements
was
a
disproportionately
severe
measure
that
could
not
be
saved
under
s
1.
Thus
held
to
be
invalid.
! Devine
v
Quebec
1988:
requirement
of
French
without
prohibition
on
other
languages
offends
s
2(b)
of
Charter
but
is
saved
by
s
1.
Thus
proportionate.
Language
of
Education
! s
93,
Constitution
Act
1867-‐
confers
on
provincial
legislatures
the
power
to
make
laws
in
relation
to
education,
and
the
ancillary
power
over
language
of
instruction
in
the
schools.
But
if
a
particular
language
of
instruction
was
a
right
or
privilege
of
separate
schools
in
a
particular
province
at
the
time
of
confederation,
then
the
province
would
be
disabled
from
compelling
such
schools
to
instruct
in
a
different
language
o This
section
applies
to
each
of
the
original
confederating
provinces,
namely,
Ontario,
Quebec,
New
Brunswick,
and
Nova
Scotia
and
B.C
and
P.E.I
/
slightly
different
versions
apply
to
Manitoba,
Alberta,
Saskatchewan,
and
Newfoundland
Roman
Catholic
Separate
School
Trustees
v
Mackell
1916:
o Ontario
can
require
English
to
be
language
of
instruction
in
Catholic
schools.
Even
in
French
catholic
schools.
o Content
of
right
depends
on
laws
in
force
at
confederation.
If
at
time
of
confederation,
there
was
class
of
peoples
practicing
another
Page
40
of
86
! St.
Catherines’s
Milling
case
1889:
Privy
Council
held
that
lands
reserved
for
[2]
Aboriginal
&
Treaty
Rights
the
Indians
were
not
among
the
properties
transferred
to
the
Dominion
by
the
property
provisions
of
the
Constitution
Act
1867.
Thus
the
underlying
title
to
FEDERAL
LEGISLATIVE
POWER
the
land
remained
in
the
Crown
in
right
of
the
province,
subject
to
the
aboriginal
rights
of
the
Indians
(which
are
subject
to
federal
legislative
authority)
Section
91(24),
Constitution
Act
1867
! BUT
if
the
Indians
surrender
their
rights
over
particular
lands,
which
they
can
! Confers
upon
the
federal
Parliament
to
make
laws
in
relation
to
“Indians,
and
lands
reserved
or
the
Indians”
(ie
“rationally
relate”
to
legislative
policy
in
only
do
to
the
Crown,
then
full
title
to
the
lands
is
assumed
by
the
province,
regard
to
Indians)
not
the
Dominion
! Contains
2
heads
of
power:
(1)
a
power
over
“Indians”
and
(2)
a
power
over
“lands
reserved
for
the
Indians”
(c) Charter
of
Rights
st
! 1
power=
may
be
exercised
in
respect
of
ONLY
Indians
whether
or
not
they
! S.
15-‐
contains
an
equality
guarantee
! The
Indian
Act
has
not
yet
been
challenged
under
s
15
by
reason
of
its
use
of
reside
on,
or
have
any
connection
with,
lands
reserved
for
the
Indians
nd the
“Indian”
classification
! 2
power=
may
be
exercised
in
respect
of
Indians
and
non-‐
Indians
so
long
as
the
law
is
related
to
lands
reserved
for
the
Indians.
! The
term
“Indian”
under
the
federal
Indian
Act
distinguishes
on
the
basis
of
! Idea:
Fed
government
maintain
uniform
respect,
better
able
to
be
unbiased.
race,
although
it
may
not
infringe
s
15(1)
of
the
Charter
as
it
may
not
“discriminate”
by
promoting
prejudice
or
stereotyping
(a) Indians
! Any
s
15(1)
infringement
could
be
justified
under
s
1
of
the
Charter
! Refers
to
aboriginal
peoples
living
in
Canada
before
European
contact
! Indian
Act
like
any
other
statute
is
vulnerable
to
attack.
! “status
Indians”-‐
under
federal
Indian
Act
enjoy
right
to
live
on
Indian
(d) Treaties:
reserves,
and
have
other
privileges
under
the
Act,
and
all
are
captured
by
s
91(24)
(approx.
700,000)
• General
rule:
have
no
effect
internally
in
canada
unless
they
are
implemented
! “non-‐
status
Indians”-‐
are
not
captured
by
the
Indian
Act
definition,
but
can
be
via
legislation.
“Indians”
under
s
91(24)
(approx.
200,000)
• Before
1982
they
could
not
stand
against
inconsistent
federal
legislation
! Metis
(intermarriage
between
French
Canadian
men
and
Indian
women
during
• Sect
35
of
1982
Constitution
Act
now
gives
constitutional
protection
to
rights
fur
trade
period)
are
probably
“Indians”
under
s
91(24)
(approx.
300,000)
but
created
by
treaties
entered
into
in
past.
are
not
governed
by
the
Indian
Act
• Operates
as
a
limitation
on
powers
of
federal
government
and
provincial.
! Inuit
–
are
“Indians”
under
s
91(24)
(approx.
50,000)
but
not
governed
by
the
Indian
Act
PROVINCIAL
LEGISLATIVE
POWER
! Federal
Government
can
make
laws
for
Indians
on
matters
which
otherwise
lie
outside
its
legislative
competence,
and
on
which
it
cannot
leg
for
non-‐Indians.
! GENERAL
RULE:
provincial
laws
apply
to
Indians
and
lands
reserved
for
the
Indians
(b) Lands
reserved
for
Indians
! Four
B
Manufacturing
(1979)
! Includes
the
lands
set
aside
as
Indian
reserves
before
and
after
Confederation
o SCC
held
that
provincial
labour
law
applied
to
a
shoe-‐
manufacturing
! Also
includes
the
huge
area
of
land
recognized
by
the
Royal
Proclamation
of
business,
which
was
located
on
a
reserve,
which
was
owned
(through
a
1763
as
“reserved”
for
the
Indians,
that
is,
all
land
within
the
territory
covered
corporation)
by
Indians,
employed
mainly
Indian,
and
funded
by
the
by
the
Proclamation
that
was
in
the
possession
of
the
Indians
and
that
had
not
Department
of
Indian
Affairs.
been
ceded
to
the
Crown
! R
v.
Francis
(1988)
o court
held
that
provincial
traffic
laws
applied
to
an
Indian
driving
a
vehicle
DELGAMUUKW
V
BRITISH
COLUMBIA
1997:
SCC
went
further
holding
that
it
on
an
Indian
reserve
extends
to
all
“lands
held
pursuant
to
aboriginal
title”
(for
that
reason,
only
the
! These
decisions
establish
that
the
provincial
Legislatures
have
the
powers
to
federal
Parliament
had
the
power
to
extinguish
aboriginal
title)
make
their
laws
applicable
to
Indians
and
on
Indian
reserves,
so
long
as
the
law
is
in
relation
to
a
matter
coming
within
a
provincial
head
of
power
Page
41
of
86
! The
2
above
cases
rejected
the
theory
that
Indian
reserves
are
federal
Section
88
of
the
Indian
Act
“enclaves”
from
which
provincial
laws
are
excluded
Provides
that:
‘subject
to
the
terms
of
any
treaty
and
any
other
Act
of
the
Parliament
of
Canada,
all
laws
of
general
application
from
time
to
time
in
force
in
any
EXCEPTIONS
to
the
general
rule
that
provincial
laws
don’t
apply
to
Indians
(5):
province
are
applicable
to
and
in
respect
of
Indians
in
the
province,
except
to
the
extent
that
such
laws
are
inconsistent
with
this
Act
or
any
order,
rule,
regulation
or
by-‐law
made
thereunder,
and
except
to
the
extent
that
such
laws
1.
Singling
out
make
provision
for
any
matter
for
which
provision
is
made
by
or
under
this
Act.’
! Provincial
law
cannot
target
Indians
or
lands
reserved
for
the
Indians
for
special
treatment
(ultra
vires)
and
therefore
would
be
invalid.
This
is
b/c
only
! Makes
clear
that
provincial
“laws
of
general
application”
apply
to
“Indians”
federal
parliament
can
legislate
“in
relation
to
Indians”
and
makes
no
reference
to
lands
reserved
for
the
Indians,
but
it
does
extend
to
Indians
on
reserve
2.
Indianness
! Operates
as
a
federal
adoption,
or
incorporation
by
reference,
of
provincial
! A
provincial
law
cannot
affect
an
integral/
vital/
core
part
of
primary
federal
laws,
making
the
provincial
laws
applicable
as
part
of
federal
law
jurisdiction
over
Indians
and
lands
reserved
for
the
Indians
(ie.,
cannot
affect
aboriginal
rights
or
treaty
rights,
or
right
to
possession
of
land
on
Indian
Not
only
a
declaration
of
previous
case
law:
reserves,
or
some
uses
of
land
on
reserve,
or
buildings
on
reserves)
o Extends
body
of
provincial
law
that
is
applicable
to
Indians.
o Provincial
laws
affecting
Indianness,
which
do
not
apply
to
Indians
of
! Natural
Parents
v.
Superintendent
of
Child
Welfare
(1975):
SCC
held
that,
their
own
force
are
applicable
by
s88.
(Dick
v
The
Queen)
(provincial
while
provincial
adoption
law
would
permit
white
parents
to
adopt
an
laws
of
general
application
can
infringe
aboriginal
rights
but
not
as
Indian
child,
the
provincial
law
had
to
be
read
down
so
as
not
to
deprive
far
as
to
extinguish
aboriginal
rights)
the
child
of
his
Indian
status
! Provides
absolute
protection
against
any
significant
infringement
of
treaty
! Kitkatla
Band
v
British
Columbia
2002:
unsuccessful
challenge
to
rights
by
provincial
law
(note:
treaty
rights
also
protected
by
s
35
Constitution
provincial
heritage
conservation
law
which
allowed
licensed
logging
Act
1982)
companies
to
destroy
“culturally
modified
trees”-‐
no
aboriginal
right
or
! Preserves
paramountcy:
any
conflict
b/w
federal
statute
and
provincial
law
of
title
to
the
trees
(on
Crown
land)-‐
despite
cultural
significance,
application
general
application
resolved
in
favour
of
federal
statute.
of
the
act
to
the
trees
did
not
affect
Indianness
ABORIGINAL
RIGHTS:
3.
Paramountcy
Overview:
! If
a
Provincial
law
is
inconsistent
with
a
provision
of
the
Indian
Act
(or
any
! Aboriginal
rights
are
distinct
and
arise
from
Aboriginal
occupation
of
lands
in
other
federal
law),
the
provincial
law
is
rendered
inoperative
Canada
in
organized/
governing
societies
(“nations”)
prior
to
European
contact
! Aboriginal
rights
include
concept
of
Aboriginal
title,
which
is
a
unique
4.
Natural
resources
agreements
communally
held
property
right
! The
right
of
Indians
to
take
game
and
fish
for
food,
which
is
defied
and
! The
scope
of
an
Aboriginal
right
depends
on
specific
facts
related
to
the
protected
in
the
3
prairie
provinces
(Manitoba,
Saskatchewan,
and
Alberta)
by
Aboriginal
group
and
its
historic
relationship
to
the
land
in
question
the
Natural
Resources
Agreement.
Provincial
laws
cannot
deprive
Indians
of
! S
35,
Constitution
Act
1982
protects
Aboriginal
rights
and
title
this
right
(a) Recognition
of
Aboriginal
Rights
5.
Section
35,
Constitution
Act
1982
! Since
1982,
aboriginal
and
treaty
rights
are
constitutionally
protected
by
s
35
! s
35,
Constitution
Act
1982
gives
constitutional
protection
to
“the
existing
! Even
before
1982
aboriginal
rights
and
treaty
rights
were
not
vulnerable
to
aboriginal
and
treaty
rights
of
the
aboriginal
peoples
of
Canada”
provincial
law,
because
of
the
Indianness
exception
.
! S35
is
examined
later
in
chapter.
Page
42
of
86
! Aboriginal
rights
that
have
not
been
extinguished
are
recognized
by
the
TEST:
(1)
in
order
to
be
an
aboriginal
right,
an
activity
must
be
an
element
of
a
common
law
and
are
enforceable
by
the
courts.
Guerin
v
The
Queen
is
the
practice,
custom
or
tradition,
integral
(ie
sufficiently
central)
to
the
leading
case
on
this
matter.
distinctive
culture
of
the
aboriginal
group
asserting
the
right
Facts:
Musquem
Indian
Band
surrendered
land
to
Crown
to
enable
lease
! Integral
"
the
practice
must
be
of
central
significance
to
the
to
a
golf
club
society,
must
be
defining
and
distinctive
characteristic
to
society.
Held:
Aboriginal
rights
exists
at
common
law
and
confirmed
they
are
(2)
The
practice
must
have
developed
before
“contact”,
ie
before
the
arrival
enforceable
by
the
courts
(a
pre
s
35
Constitution
Act
1982
case)
of
Europeans
in
North
America
Recognized
Aboriginal
title
to
land
in
B.C
as
“a
legal
right
derives
(3)
The
practice
could
evolve
over
the
years
as
the
result
of
contact,
but
a
from
the
Indians’
historic
occupation
and
possession
of
their
lands”
practice
that
has
evolved
into
modern
forms
must
trace
its
origins
back
to
the
pre-‐
contact
period
(ie
bow
and
arrow
by
the
gun).
Contemporary
! Sparrow
follows
Guerin
and
recognized
the
aboriginal
right
of
a
member
of
the
practices
that
developed
“solely
as
a
response
to
Europeans
influences”
Musqueam
Indian
Band
to
fish
for
salmon
in
the
Fraser
River.
Sparrow
also
do
not
qualify
recognized
that
in
all
dealings
with
aboriginal
peoples,
the
Government
has
the
responsibility
to
act
in
fiduciary
capacity,
and
also
decides
that
aboriginal
o In
the
above
case
s
35
did
not
apply
(thus
accused
was
convicted)
rights,
including
the
fiduciary
duty,
are
now
constitutionally
guaranteed
because
Aboriginal
right
is
based
on
existence
of
an
Aboriginal
practice
st
through
s
35
of
the
Constitution
Act
1982
(this
was
the
1
s35
case)
before
“contact
(b) Definition
of
Aboriginal
Rights
! R
v.
Sapper
2006:
Aboriginal
right
to
harvest
timber
to
construct
permanent
dwellings
based
on
Maliset
and
Mi’kmaq
pre-‐contact
ancestral
practices
of
! Aboriginal
RIGHTS
are
rights
held
by
aboriginal
peoples,
not
by
virtue
of
Crown
harvesting
wood
for
temporary
shelter
and
domestic
uses
(they
cut
down
grant,
legislation
or
treaty,
but
“by
reason
of
the
fact
that
aboriginal
peoples
Crowns
wood/trees
for
canoes,
tools,
firewood)
–
was
immaterial
that
were
once
independent,
self-‐
governing
entities
in
possession
of
most
of
the
practices
developed
as
necessity
of
survival,
thus
s
35
invoked
and
accused
lands
now
making
up
Canada.”
were
successful
in
establishing
their
aboriginal
right
and
entitled
to
be
acquitted
! Lamer
C.J.
in
R
v
Van
der
Peet
(1996)
pointed
out
that
“when
Europeans
arrived
in
North
America,
aboriginal
peoples
were
already
here,
living
in
(c) Aboriginal
Self-‐
Government
communities
on
the
land,
and
participating
in
distinctive
cultures,
as
they
had
done
for
centuries.”
This
fact
distinguishes
aboriginal
peoples
from
all
other
! The
aboriginal
right
of
self-‐
government
must
exist
by
virtue
of
the
fact
that
minority
groups
in
Canada,
and
explains
why
aboriginal
rights
have
a
special
aboriginal
people
were
living
in
self-‐
governing
communities
before
the
arrival
legal,
and
now
constitutional
status.
of
Europeans
! According
to
Pamajewon
1996
case
,
the
aboriginal
right
of
self-‐
government
R.
v.
VAN
DER
PEET
[previously
SCC
recognized,
here
they
defined
chara]
extends
only
to
activities
that
took
place
before
European
contact,
and
then
FACTS:
Aboriginal
def
convicted
selling
fish
she
caught
under
Indian
food
fish
only
to
those
activities
that
were
an
integral
part
of
the
aboriginal
society(
did
licence.
Licence
restricted
fishing.
Question
whether
there
was
aboriginal
not
include
gambling,
which
was
informal
and
small
scale
and
not
right
to
sell
fish
for
money
or
other
goods.
economically
sustaining
for
Aboriginal
communities)
(ie
must
meet
the
Van
HELD:
Exchange
of
goods
did
occur
in
their
society
before
contact,
but
was
der
Peet
test)
incidental
to
practices
of
fishing
for
food.
Practice
of
selling
fish
was
not
integral
part
of
their
culture.
Only
after
EU
influence
did
market
arise.
CASE
CREATED
TEST
FOR
ABORIGINAL
RIGHTS
DEFINITION:
! Articulated
the
legal
test
that
was
to
be
used
to
identify
an
“existing
aboriginal
right”
within
the
meaning
of
s
35
of
the
Constitution
Act
1982:
Page
43
of
86
(d)
Aboriginal
Title:
The
right
to
exclusive
occupation
of
land,
which
permits
the
! Because
of
s
35,
legislation
cannot
extinguish
aboriginal
rights,
but
it
can
aboriginal
owners
to
use
the
land
for
a
variety
of
purposes
regulate
them,
so
long
as
the
test
of
justification
is
passed
!The
SCC
in
Calder
and
Guerin
recognized
that
At
common
law,
aboriginal
title
TREATY
RIGHTS:
survived
European
settlement
and
assumption
of
sovereignty
by
British
Crown,
unless
surrendered
or
lawfully
extinguished
<1982,
Indian
treaty
rights
protected
from
Provincial
legislation
by
s.88
Indian
Act
>1982,
Treaty
rights
protected
by
s35
CA
from
Prov
and
Federal
legislation.
! Aboriginal
title
was
recognized
by
the
Royal
Proclamation
of
1763,
which
governed
British
imperial
policy
for
the
settlement
of
British
North
America.
(a) History
o As
settlement
advanced
across
the
country,
treaties
were
entered
! Historically,
from
approximately
1850
to
1920,
a
series
of
treaties
were
signed
into
with
the
aboriginal
people,
who
surrendered
portions
of
their
ceding
Indian
lands
to
the
Crown
in
exchange
for
(among
other
things)
hunting
land
to
the
Crown,
thereby
freeing
up
the
surrendered
land
for
and
fishing
rights,
and
the
reservation
of
certain
portions
of
treaty
lands
settlement
and
development
by
non-‐
aboriginal
people
! After
SCC
in
Calder
(1973)
recognized
validity
of
Aboriginal
rights,
Canada
resumed
modern
land
claims
process,
to
negotiate
surrender
of
Aboriginal
! Since
1982,
Aboriginal
title
is
protected
by
s
35,
Constitution
Act
1982
rights
over
non-‐settlement
lands
in
exchange
for
reserves,
payment,
development,
land
use
planning,
resource
management
etc
DELGAMUUKW
V
BRITISH
COLUMBIA
1997
(Leading
case
on
aboriginal
title)
Facts:
Action
by
Aboriginal
group
for
declaration
of
aboriginal
title
to
tract
of
land
(b) Definition
of
Treaty
in
northern
B.C
! Indian
treaty=
unique
(sui
generis)
agreement
between
Aboriginal
nation
and
Held:
Aboriginal
title
is
proved
by
showing
that
Aboriginal
people
occupied
the
Crown
with
intention
to
create
legally
binding
obligations
for
consideration
land
prior
to
sovereignty
(not
contact,
which
is
earlier
and
less
certain)
featuring
a
measure
of
solemnity
! Surrender
of
Aboriginal
rights
or
title
is
not
necessary
for
a
valid
treaty,
and
Aboriginal
title
confers
the
right
to
exclusive
use
and
occupation
of
the
does
not
have
to
involve
territory
land
includes
right
to
engage
in
activities
on
land,
and
not
just
traditional
! R
v
Simon
1985:
activities
e.g.,
can
engage
in
oil
or
gas
exploitation)
o SCC
held:
a
“peace
and
friendship”
treaty
signed
in
1752
by
Governor
of
Nova
Scotia
and
Chief
of
Micmac
Indians
was
binding
given
intention
to
Aboriginal
title
is
inalienable
(unchallengeable)
except
to
the
Crown
(ie
to
create
legally
binding
obligations
pass
title,
Aboriginal
owners
must
first
voluntarily
surrender
land
to
o Gave
Micmacs
liberty
to
hunt
and
fish
in
the
treaty
area,
in
exchange
for
Crown),
and
Crown
then
under
fiduciary
duty
to
deal
with
land
in
best
ceasing
hostilities.
THUS
(per
s
88
Indian
Act)
exempted
Micmac
interests
of
surrendering
Aboriginals
defendant
from
provincial
game
laws
Aboriginal
title
only
held
communally
by
all
members
of
Aboriginal
nation
(c) Interpretation
of
Treaty
Rights
(d) Extinguishment
of
Aboriginal
Rights
! Broad
and
generous
interpretation
of
what
constitutes
a
treaty-‐
“should
be
liberally
construed
with
doubtful
expressions
resolved
in
favour
of
the
! Aboriginal
rights
(including
aboriginal
title)
can
be
extinguished
in
2
ways:
Indians”
–Nowegikick
v
Queen
(1)
by
surrender
and
(2)
by
constitutional
amendment
(not
that
it
is
now
clear
! The
reason
for
this
rule
include
the
unequal
bargaining
power
of
the
Crown
that
it
would
be
a
breach
of
Crown’s
fiduciary
duty
to
the
aboriginal
people
to
and
the
aboriginal
people
proceed
with
a
constitutional
amendment
affecting
aboriginal
rights
without
at
least
the
active
participation
of
the
affected
aboriginal
people)
! The
honour
of
the
Crown
and
the
fiduciary
duty
of
the
Crown
demand
a
rule
! Extinguishment,
whether
by
voluntary
surrender
or
constitutional
amendment,
that
removes
even
the
appearance
or
suspicion
of
sharp
practice
in
treating
will
not
be
inferred
from
unclear
language.
Only
a
“clear
and
plain”
intention
with
aboriginal
people
to
extinguish
is
accepted
by
courts
(Sparrow)
Page
44
of
86
! Remarkable
example
of
generous
interpretation
of
an
Indian
treaty:
4. Aboriginal
and
treaty
rights
could
be
modified
or
extinguished
by
constitutional
amendment,
whereby
aboriginal
peoples’
representatives
R
v
Marshall
(No
1)
1999
were
not
entitled
to
participate
in
the
decisive
phases
of
the
amending
o Issue:
whether
M
Indian
charged
with
fishing
for
eels
and
selling
them
process
(unlike
now
with
s
35)
without
a
license
had
a
treaty
right
to
do
so
(brief
“peace
and
The
Constitution
Act
1982
has
taken
steps
to
eliminate
these
4
infirmities
!
friendship”
treaty
from
1760
between
British
Governor
of
Nova
Scotia
See
section
35,
25,
and
35.1
!
and
M
Chief
did
not
directly
discuss
fishing,
and
limited
discussion
of
“truck
house”
trade
with
British)
SECTION
35,
CONSTITUTION
ACT
1982
o SCC
held:
“truck
house”
provision
conferred
a
treaty
right
under
s
35
Constitution
Act
1982
to
“hunt,
fish
and
gather”
to
make
“moderate
! Provides
an
additional
layer
of
constitutional
protection
for
Aboriginals:
livelihood”
as
these
historic
activities
gave
Indians
commodities
to
bring
(1) The
existing
aboriginal
and
treaty
rights
of
the
aboriginal
peoples
of
to
truck
house
for
trade,
THUS
treaty
right
prevailed
over
provincial
law
Canada
are
hereby
recognized
and
affirmed
and
defendant
acquitted
(2) In
this
Act,
“aboriginal
peoples
of
Canada”
includes
the
Indian,
Inuit
and
Metis
peoples
of
Canada
! R
v
Marshall
No
3
2005:
SCC
rejected
application
of
“truck
house”
argument
to
(3) For
greater
clarity,
in
subsection
(1)
“treaty
right”
includes
rights
that
now
Mi’kmaq
commercial
logging
operations
on
Crown
lands
without
provincial
exist
by
way
of
land
claims
agreements
or
may
be
so
acquired
statutory
authority-‐
logging
(unlike
eel
fishing)
was
not
a
traditional
Mi’kmaq
(4) Notwithstanding
any
other
provision
of
this
Act,
the
aboriginal
and
treaty
activity
in
1760
and
modern
logging
was
not
the
natural
evolution
of
the
minor
rights
referred
to
in
subsection
(1)
are
guaranteed
equally
to
male
and
trade
in
wood
products
at
time
of
treaty,
THUS
defendants
had
no
treaty
right
female
persons.
to
cut
down
trees
for
commercial
purposes
without
a
license.
! S
35
is
outside
the
Charter,
thus
o Protections
under
s
35
are
not
subject
to
justification
under
s
1
of
the
(d) Extinguishment
of
Treaty
Rights
Charter
(rights
are
not
subject
to
“such
reasonable
limits
prescribed
by
! 2
ways
to
extinguish
(same
as
Aboriginal
rights):
law
as
can
be
demonstrably
justified
in
a
free
and
democratic
society”)
o 1.
Voluntary
surrender
to
the
Crown
o The
rights
are
not
subject
to
legislative
override
under
s
33
of
Charter
o 2.
Constitutional
amendment
o The
disadvantage
of
the
location
of
s
35
outside
the
charter
is
that
the
o Prior
to
1982,
could
also
be
extinguished
by
federal
legislation
(not
rights
are
enforceable
under
s
24,
a
provision
that
permits
provincial)
but
no
longer
possible
given
s
35,
Constitution
Act
1982
enforcements
only
of
Charter
rights
! Require
“clear
and
plain”
intention
to
extinguish
o Crown
must
show
that
it
had
a
clear
and
plain
intention
to
completely
[1]
“Aboriginal
Peoples
of
Canada”
"
“Indian,
Inuit,
Metis”
remove
the
ability
to
exercise
the
right
R
v
Powley
(2003)
SCC:
o Facts:
Father
and
son
in
Sault
Ste.
Marie
charged
with
shooting
moose
THE
NEED
FOR
CONSTITUTIONAL
PROTECTION:
without
required
provincial
hunting
license
o Defence
=
they
were
Metis
with
aboriginal
right
to
hunt
for
food
in
the
Aboriginal
and
treaty
rights
suffered
from
4
serious
infirmities
prior
to
receiving
Sault
Ste
Marie
area
(hunting
was
integral
to
historic
Metis
culture)
constitutional
protection:
o Held:
“Metis”=
distinct
peoples,
who,
in
addition
to
mixed
Indian
and
1. Uncertainty
to
the
precise
legal
status
of
the
rights
European
ancestry,
developed
own
customs,
way
of
life
and
2. Doctrine
of
parliamentary
sovereignty
which
meant
that
aboriginal
rights
recognizable
group
identity
(apart
from
Indian,
Inuit
or
European)
prior
were
vulnerable
to
change
or
abolition
by
the
action
of
the
competent
to
“time
of
effective
European
control”
legislative
body
3
factors
indicating
Metis
identity:
3. Equality,
under
the
Charter,
suggested
that
special
status
might
be
(1)
Self-‐
identification
as
Metis
community
member;
unconstitutional
(2)
Ancestral
connection
to
historic
Metis
community;
and
(3)
Community
acceptance
(participant
in
modern
Metis
community)
Page
45
of
86
“existing”
s
35(1)
! Right
are
“existing”
if
they
were
not
validly
extinguished
prior
to
1982-‐
see
Sparrow
(held
word
existing
=
unextinguished)
“recognized
and
affirmed”
s
35(1)
! =
interpreted
(as
per
Sparrow)
! Liberally
construed-‐
doubtful
expression
resolved
in
favour
of
Indians
! Incorporating
fiduciary
duty
that
government
owes
to
Aboriginal
peoples
S
35(1)
is
a
constitutional
guarantee
of
Aboriginal
and
treaty
rights
! Federal
and
provincial
governments
may
not
interfere
with
the
exercise
of
existing
Aboriginal
rights
or
treaty
rights
! Unless
they
are
pursuing
a
compelling
and
substantial
objective
in
a
manner
compatible
with
the
honour
of
the
Crown
(Sparrow)=
(sparrow
places
limits
on
aboriginal
and
treaty
rights)
ABORIGINAL
RIGHTS:
DUTY
TO
CONSULT
Duty
to
consult
and
accommodate:
! Duty
to
engage
in
meaning
consultation
and
accommodation
as
part
of
a
process
or
reconciliation
flowing
from
the
Crown’s
duty
of
honorable
dealing:
HAIDA
NATION
v
B.C
2004;
o Exists
prior
to
(Haida)
and
after
(Mikisew
Cree)
the
legal
recognition
of
Aboriginal
or
treaty
rights
o 35.1
of
CA
1982
o Based
on
March
1983
agreement
with
Aboriginal
representatives
at
constitutional
conference
of
first
ministers
o New
s
35.1
introduced
–
declares
that
federal
and
provincial
governments
committed
to
principle
that
before
any
amendment
made
to
s
91(24)
or
s
35
or
s
25,
a
constitutional
conference
will
be
convened
and
Aboriginal
representatives
invited
to
discuss
proposed
amendments
(privilege
accorded
to
no
other
group
outside
government-‐
emphasizes
special
status
of
Aboriginal
peoples)
SECTION
25,
CONSTITUTION
ACT
1982
[interpretation
provision]
! Does
not
create
new
rights
"
it
is
an
interpretive
provision,
and
part
of
the
Charter,
included
to
make
clear
that
the
Charter
is
not
to
be
construed
as
derogating
(detracting)
from
any
aboriginal
treaty
or
other
rights
etc
! In
the
absence
of
s
25,
it
would
perhaps
have
been
arguable
that
rights
attaching
to
groups
defined
by
race
were
invalidated
by
s
15
(equality
clause)
of
the
Charter
Page
46
of
86
[3]
Interpreting
the
Charter
of
Rights
&
Freedoms
(c) Role
of
s.
1
! Because
of
s
1,
judicial
review
of
legislation
under
the
Charter
of
Rights
is
a
2
stage
process:
! The
Charter
limited
the
powers
of
the
federal
Parliament
as
well
as
the
provincial
Legislatures
[1]
First
stage
of
judicial
review:
to
determine
whether
the
challenged
! Enhances
national
unity:
uniform
national
standards
for
protection
of
liberties
law
derogates
from
a
Charter
right
(if
it
does
not,
then
the
review
is
over,
and
the
law
must
be
upheld).
Protection
of
Civil
Liberties
-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐
! The
Charter
of
Rights,
like
any
other
bill
of
rights,
guarantees
a
set
of
civil
[2]
If
the
law
does
derogate
from
a
Charter
right,
then
the
second
stage
is
liberties
that
are
regarded
as
so
important
that
they
should
receive
immunity,
to
determine
whether
the
law
is
justified
under
s
1
as
a
reasonable
or
at
least
special
protection,
from
state
action
limit
prescribed
by
law
that
can
be
demonstrably
justified
in
a
free
and
! The
Charter
will
never
become
the
main
safeguard
of
civil
liberties
in
Canada.
democratic
society
! The
main
safeguards
will
continue
to
the
democratic
character
of
Canadian
political
institutions,
the
independence
of
the
judiciary
and
a
legal
tradition
of
"
Striking
down
a
law
b/c
failed
s1,
most
always
means
that
a
different
respect
for
civil
liberties.
The
Charter
is
no
substitute
for
any
of
these
things,
law,
one
that
has
same
objective
but
which
encroaches
less
on
the
and
would
be
ineffective
if
any
of
these
things
disappeared.
Charter
right,
would
be
a
reasonable
limit.
Expansion
of
Judicial
Review
-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐
(d) Role
of
s.
33
(a) New
grounds
of
review
! The
Charter
includes,
as
s
33,
an
override
power,
which
enables
the
! The
major
effect
of
the
Charter
has
been
the
expansion
of
judicial
review.
Parliament
or
a
Legislature
to
enact
a
law
that
will
override
the
guarantees
The
Charter
adds
a
new
set
of
constitutional
provisions
that
will
invalidate
in
s
2,
and
ss
7
–
15
inconsistent
laws
! Judicial
review
is
also
more
policy
driven
given
the
vagueness
of
the
Dialogue
with
Legislative
Branch
-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐
terms
of
the
Charter
(a) The
idea
of
dialogue
! The
presence
in
the
Charter
of
the
power
to
override
s
33
means
that
most
(b) Vagueness
of
concepts
“thought,
belief,
expression”
decisions
striking
down
statutes
on
Charter
grounds
can
be
reversed
by
! Because
of
the
vagueness
of
the
Charter,
the
role
of
the
law,
lawyers
and
the
competent
legislative
body.
For
example,
a
prohibition
of
the
use
of
judges
in
the
public
life
of
the
country
has
greatly
increased
English
in
commercial
signs
that
was
struck
down
as
a
breach
of
freedom
of
! The
SCC
has
willingly
embraced
new
powers
conferred
on
it
b/c
vagueness
expression
was
revived
by
the
Quebec
Legislature,
invoking
s
33
! The
period
of
judicial
activism
since
1982
has
been
described
as
the
Charter
! Helpful
to
think
of
the
Court’s
Charter
decisions,
not
as
imposing
a
veto
on
revolution
desired
legislative
policies,
but
rather
as
starting
a
“dialogue”
with
the
legislative
branch
as
to
how
to
best
reconcile
the
individualistic
values
of
! Review
on
Charter
grounds
rarely
defeats
a
desired
legislative
objective.
the
Charter
with
the
accomplishment
of
social
and
economic
policies
for
After
a
law
is
struck
down
by
the
Court,
the
mechanisms
of
ss
1
and
33
the
benefit
of
the
community
as
a
whole
typically
leave
room
for
the
law
to
be
replaced
with
another
version
that
still
carries
out
the
legislative
objective,
and
most
of
the
time
a
(b) Second
look
cases
replacement
law
is
in
fact
enacted
! Mills
case
shows
how
concept
of
dialogue
used
to
show
deference
to
legislative
decision
! Mills
shows
that
the
idea
of
dialogue
indicates
that
when
a
legislature/
Parliament
has
revised
and
re-‐enacted
a
law
that
the
courts
have
found
unconstitutional
,
the
Court
is
likely
to
uphold
the
second
attempt
(underlying
that
this
is
the
idea
that,
as
the
legislatures
and
Parliament
Page
47
of
86
represent
the
will
of
the
people,
they
are
in
a
better
position
to
sort
out
Captured
in
Edwards
v.
A-‐G
Can
1930
by
Lord
Sankey’s
metaphor
of
“a
such
problems)
living
tree
capable
of
growth
and
expansion
within
its
natural
limits”
! The
principle
of
democracy
encourages
remedies
that
allow
the
democratic
(b) Generous
Interpretation
process
of
consultation
and
dialogue
to
occur.
! Lord
Sankey
in
Edwards
v
A-‐G
Can
in
his
‘living
tree’
metaphor
was
that
a
! Judicial
respect
for
the
autonomy
of
the
other
branches
of
government
constitution
should
receive
a
generous
interpretation
would
also
argue
for
restrain
in
crafting
orders
to
compel
the
executive
o He
went
on
to
say
that
the
provisions
of
the
Constitution
Act
1867
branch
to
rectify
Charter
breaches
(i.e.
Separation
of
powers)
should
not
be
“cut
down”
by
“a
narrow
and
technical
construction”
but
should
be
given
“a
large
and
liberal
interpretation”
Characterization
of
Laws
-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐
o This
case
decided
that
women
were
“persons”
and
accordingly
2
stages:
eligible
to
be
appointed
to
the
Senate
(1)
Determine
whether
the
challenged
law
abridges
a
Charter
right:
! A
generous
interpretation
of
the
Charter
cannot
be
justified
as
increasing
a.
First,
characterize
the
challenged
law,
examining
its
purpose
or
effect
the
powers
of
the
legislative
bodies;
it
will
have
the
effect
of
reducing
their
b.
Second,
interpret
the
language
of
the
Charter
of
Rights
to
determine
powers.
whether
it
has
been
abridged
by
the
challenged
law
(connected
issues)
! Justification
for
a
generous
interpretation
of
the
Charter
is
that
it
will
give
(2)
S
1
analysis
if
applicable
full
effect
to
the
civil
liberties
that
are
guaranteed
by
the
Charter
o The
focus
in
this
part
is
on
(1)(a)
o If
the
purpose
of
a
law
is
to
abridge
a
Charter
right,
then
the
law
will
be
(c) Purposive
interpretation
[looks
to
context,
preamble,
purpose
of
statute]
unconstitutional.
If
the
effect
of
the
law
is
to
abridge
a
Charter
right,
! Involves
an
attempt
to
ascertain
the
purpose
of
each
Charter
right
and
then
then
the
law
will
be
unconstitutional
(unless
it
is
saved
by
s
1)
–
to
interpret
the
right
so
as
to
include
activity
that
comes
within
the
purpose
distinguish
between
purpose
and
effect
and
exclude
activity
that
does
not
! Actual
purpose
of
a
right
is
unknown,
and
so
a
court
has
a
good
deal
of
(a)
Purpose
or
effect
discretion
in
deciding
what
the
purpose
is,
and
at
what
level
of
generality
it
! A
law
will
offend
the
Charter
if
either
its
purpose
or
its
effects
is
to
abridge
a
should
be
expressed
Charter
right
(est
in
Drug
Mart).
! Court
generally
assumed
that
a
“purposive”
approach
and
a
“generous”
! Legislation
with
an
invalid
purpose
can’t
be
saved
by
s
1
(Big
M
Drug
Mart)
approach
are
one
and
the
same
thing
! BUT
it’s
the
“effect”
that
is
normally
at
issue
! In
Edwards
Books:
purpose
test
passed
(secular),
yet
effect
was
to
impose
a
Purposive
approach
in
harmony
with
s1
Justification
Oakes
test
(strict):
HOGG
burden
on
retailers
whose
religious
beliefs
required
them
to
abstain
from
work
! Once
right
confined
with
strict
standard
of
justification
(Oakes)
seems
on
a
day
other
than
Sunday.
(yet
upheld
under
s1).
obvious
that
a
government
ought
to
have
to
satisfy
a
stringent
standard
of
justification
to
uphold
legislation
limiting
the
right.
(b)
Trivial
Effects
! Where
the
effect
of
a
law
on
a
Charter
right
is
trivial
or
insubstantial,
there
is
no
(d) Process
as
Purpose
[constitution’s
purpose
–
as
purpose
for
each
right]
breach
of
the
Charter
(R
v
Jones)
! Process-‐
based
theory
of
judicial
review
offers
2
important
advantages:
1.
Supplies
a
helpful
context
for
interpreting
particular
guarantees.
INTERPRETATION
OF
CHARTER
-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐
! The
guarantees
of
free
speech
or
expression,
for
example,
should
be
seen
not
as
constitutive
of
personal
autonomy
(a
substantive
value),
but
as
an
(a) Progressive
interpretation
instrument
of
democratic
government
(a
process-‐
based
value)
! A
constitution
is
likely
to
remain
in
force
for
a
long
time
and
is
difficult
to
2.
Offers
a
solution
to
the
problem
of
the
legitimacy
of
judicial
review
amend,
which
calls
for
a
flexible
interpretation,
so
that
the
constitution
! All
that
the
judges
are
concerned
with
is
the
fairness
of
the
process
by
can
be
adapted
over
time
to
changing
conditions
which
legislative
bodies
or
other
agencies
or
officials
reach
their
decisions
! A
flexible
interpretation
that
allows
the
constitution
to
be
adapted
over
time
to
changing
conditions
is
what
progressive
interpretation
refers
to
Page
48
of
86
!It
is
not
the
wisdom,
justice
or
rightness
of
the
outcomes
of
the
political
Interpretive
Provisions
process,
but
the
integrity
of
the
process
itself,
that
is
the
proper
subject
of
! Preamble:
“whereas
Canada
is
founded
upon
principles
that
recognize
the
judicial
review
supremacy
of
God
and
the
rule
of
law”
! S
25:
Aboriginal
rights
(e) Hierarchy
of
Rights
[deduced
by
s33
notwithstanding]
! S
26:
other
rights
not
affected
! The
Charter
of
Rights,
by
s
33,
provides
for
the
override
of
some
rights
by
! S
27:
multiculturalism
the
inclusion
of
a
notwithstanding
clause
in
the
overriding
statute.
! S
28:
equality
to
both
sexes
! S
29:
denominational
school
rights
not
affected
Can
be:
The
rights
that
can
be
overridden
in
this
way
are
those
! S
30:
North
West
Territories
and
Yukon
(Nunavut)
guaranteed
by
s
2
(freedom
of
religion,
expression,
assembly
! S
31:
does
not
extend
governments’
powers
and
association),
ss
7-‐14
(legal
rights)
and
s
15
(equality).
Cannot
be:
The
rights
that
cannot
be
overridden
in
this
way
are
those
SOURCES
OF
INTERPRETATION
guaranteed
by
ss
3-‐5
(democratic
rights),
s
6
(mobility),
ss
16-‐
23
(language)
and
s
28
(sexual
equality).
(a) Pre-‐Charter
cases
! In
interpreting
the
Charter,
the
doctrine
of
precedent
will
apply
in
the
! S
33
thus
creates
2
tiers
of
rights:
the
“common
rights”
that
are
subject
to
same
way
as
it
applies
to
the
interpretation
of
other
constitutional
override,
and
the
“privileged
rights”
that
are
not
provisions
(however,
there
will
be
few
Canadian
cases
decided
before
the
adoption
of
the
Charter
in
1982
that
will
be
relevant)
! Sexual
equality
(s
28),
may
even
be
exempt
from
the
limitation
power
of
s
! Closest
cases
would
appear
to
be
those
interpreting
the
Canadian
Bill
of
1
as
well
as
the
override
power
of
s
33.
That
places
s
28
at
the
top
of
the
Rights.
But
SCC
exercised
extraordinary
restraint
in
interpreting
the
Bill,
hierarchy
relying
in
part
on
its
statutory,
as
opposed
to
constitutional
status
! Aboriginal
and
treaty
rights
which
are
guaranteed
by
s
35,
are
similarly
(b) American
cases
privileged
in
that
they
are
subject
to
neither
s
1
nor
s
33;
this
is
because
s
! American
Bill
of
Rights
was
an
important
source
of
inspiration
for
the
35
is
outside
the
Charter
of
Rights.
However,
being
outside
the
Charter
is
Charter
(as
it
was
for
most
other
countries’
bills
of
rights),
and
much
of
the
not
entirely
beneficial,
because
it
means
that
s
24,
which
provides
a
language
of
the
Charter
can
be
traced
back
to
phrases
in
the
American
Bill
remedy
for
breach
of
Charter
rights,
does
not
provide
a
remedy
for
breach
of
Rights
of
aboriginal
and
treaty
rights
.
! Decisions
of
the
SC
of
the
US
interpreting
language
that
is
similar
to
the
language
of
the
Charter
are
useful
precedents
for
Canadian
courts
(f) Conflict
Between
Rights
! But
SCC
has
exhorted
itself
to
“be
wary
of
drawing
too
ready
a
parallel
! Hierarchy
of
rights
does
not
imply
that
the
“privileged
rights”
must
take
between
constitutions
born
to
different
countries
in
different
ages
and
in
priority
over
the
“common
rights”
when
they
come
into
conflict
different
circumstances”
! 2
provisions
that
contemplate
conflict
between
rights:
! Reason
for
the
broader
interpretation
of
the
rights
in
Canada
is
the
Section
25
recognizes
the
possibility
of
conflict
(B/w
aboriginal
rights
presence
of
s
1
of
the
Canadian
Charter
of
Rights
and
race
equality)
and
provides
that
the
aboriginal
and
treaty
rights
are
to
prevail
(c) International
sources
S
29
recognizes
this
possibility
of
conflict,
and
provides
that
the
! Canada
is
bound
by
a
number
of
treaties
dealing
with
human
rights,
of
denominational
school
rights
are
to
prevail
which
the
most
important
for
present
purposes
is
the
International
! R
v
Keegstra:
Covenant
on
Civil
and
Political
Rights,
to
which
Canada
a
party
in
1976
o Court
preferred
ad
hoc
balancing
to
definitional
balancing
when
! As
treaties,
these
instruments
are
only
binding
at
international
law
resolving
conflicts
b/w
rights.
Courts
should
not
assign
priorities
! They
are
not
incorporated
into
Canada’s
domestic
law
and
are
not
to
rights,
conflict
is
to
be
resolved
by
application
to
justificatory
enforceable
in
Canadian
courts
principles
in
s1.
Page
49
of
86
! The
terms
of
the
Covenant
are
relevant
to
the
interpretation
of
the
Charter,
by
virtue
of
the
rule
that
a
statute
(and
presumably
a
constitution)
should
be
interpreted
as
far
as
possible
into
conformity
with
international
law
! The
European
Convention
on
Human
Rights
is
another
source
of
interpretational
jurisprudence
that
has
persuasive
value
for
Canadian
courts
interpreting
the
Charter
(d) Legislative
history
! Legislative
history
of
the
Carter
is
admissible
as
an
aid
to
its
interpretation
! Thus
earlier
versions
of
the
Charter,
testimony
given
before
the
parliamentary
committee
which
examined
an
earlier
version
and
debates
in
the
Senate
and
House
of
Commons
are
all
relevant
and
admissible
Priority
between
Federal
and
Charter
Grounds
! When
a
law
is
challenged
on
both
federal
and
Charter
grounds,
it
is
the
federal
ground
that
is
the
more
fundamental
of
the
two,
and
that
ought
to
take
priority
over
the
Charter
ground.
Undeclared
Rights
! S
26
of
Charter:
“the
guarantee
in
this
Charter
of
certain
rights
and
freedoms
shall
not
be
construed
as
denying
the
existence
of
any
other
rights
or
freedoms
that
exist
in
Canada.
! S
26
is
a
statutory
provision,
included
to
make
clear
that
the
Charter
is
not
to
be
construed
as
taking
away
any
existing
undeclared
rights
or
freedoms.
Rights
or
freedoms
protected
by
the
common
law
or
by
statute
will
continue
to
exist
notwithstanding
the
Charter
! The
remedy
under
s
24
is
not
available
for
their
enforcement
Page
50
of
86
[4]
Application
of
the
Charter
of
Rights
&
Freedoms-‐
CONSTITUTION
! Singh
v
Minister
of
Employment
and
Immigration
1985:
SCC
held
that
anyone
ACT,
1982,
S.
32
who
entered
Canada,
however
illegally,
was
instantly
entitled
to
assert
s
7
rights,
which
apply
to
“everyone”
(in
context
of
this
case,
everyone
who
entered
Canada
and
made
a
refugee
claim
was
entitled
to
a
hearing
before
a
Benefits
of
Rights
person
with
authority
to
decide
the
issue)
Who
is
entitled
to
the
benefit
of
the
rights
guaranteed
by
the
Charter
of
Rights???
! Whether
one
can
benefit
depends
on
the
wording
of
the
right
(b) Individual
! Section
15
confers
its
equality
rights
on
“every
individual”
(a) Everyone,
anyone,
any
person
! More
specific
than
“everyone”
“any
person”
“anyone”
and
probably
excludes
! S
2,
7,
8,
9,
10,
12,
and
17
of
the
Charter
open
with
the
phrase
“everyone
has
a
corporation
the
right”.
! Substituted
for
“everyone”
intending
to
“make
clear
that
this
right
would
apply
! In
ss
11
and
19
“any
person”
replaces
“everyone”
to
natural
persons
only”
! S
20
uses
“any
member
of
the
public”
! Within
s
15,
the
reference
to
“discrimination
based
on
race,
national
or
ethnic
! S
24
uses
“anyone”
origin,
colour,
religion,
sex,
age
or
mental
or
physical
disability”
also
reinforced
! Seems
likely
that
these
terms
are
synonymous
and
that
each
is
apt
to
include
a
the
exclusion
of
corporations:
the
listed
attributes
are
all
personal
corporation
as
well
as
an
individual
characteristics
of
human
beings
and
only
“natural
origin”
could
apply
to
corporations
as
well.
Corporations:
May
benefit
from
many
rights;
e.g,
section
2,
in
guaranteeing
the
! Even
if
s
15
does
not
extend
to
corporations,
corporations
will
still
be
able
to
fundamental
freedoms,
speaks
of
“everyone”
and
has
been
rely
on
s
15
as
a
defence
to
a
criminal
charge
laid
under
a
law
that
is
invalid
by
interpreted
to
extend
to
corps.
Section
15
applies
to
"every
virtue
of
unconstitutional
discrimination
against
individuals
(principle
individual",
and
has
been
restricted
to
only
“natural
persons”.
established
in
Big
M
Drug
Mart)
! But
even
some
of
the
rights
that
have
been
framed
in
terms
of
“everyone”
! Does
not
include
a
foetus
have
been
held
to
be
inapplicable
to
corporations
because
of
their
nature.
! Does
not
include
the
estate
of
a
deceased
individual:
s
15
rights
die
with
the
! And
so,
the
corporations
can
enjoy
freedom
of
expression,
but
not
freedom
of
individual
(A-‐G
Can.
V
Hislop
2007)
religion because
cannot
hold
a
religious
belief
or
any
other
belief
! Ie.
The
right
to
fundamental
justice
under
s
7
does
not
apply
to
a
corporation
(c) Citizen
because
are
attributes
of
individuals
not
corporations
! Generally
a
person
need
not
be
a
Canadian
citizen
in
order
to
invoke
Charter
! Those
rights
that
do
not
apply
to
corporations
cannot
be
invoked
by
a
! “everyone”
in
s
7
has
been
held
include
“every
human
being
who
is
physically
corporation
to
obtain
a
remedy
under
s
24
present
in
Canada
and
by
virtue
of
such
presence
amenable
to
Canadian
law”
! Citizenship
is
a
required
qualification
for
some
rights:
voting
rights
(S
3),
! R
v
Big
M
Drug
Mart:
SCC
held
that
a
corporation
could
invoke
the
right
to
mobility
rights
(s
6),
minority
language
educational
right
(s
230
are
conferred
freedom
of
religion
in
s
2(a)
as
a
defence
to
a
criminal
charge
of
selling
goods
upon
a
“citizen”
on
a
Sunday.
The
charge
was
laid
under
the
federal
Lord’s
Day
Act
which
the
corporation
successfully
argued
was
unconstitutional
on
the
ground
that
the
(d) Permanent
resident
Act
abridged
the
freedom
of
religion
of
individuals.
The
corporation
had
! The
mobility
rights
of
s
6(2)
(but
not
s
6(1))
apply,
not
only
to
“every
citizen”
standing
to
make
this
argument,
despite
the
fact
that
s
2(a)
did
not
apply
to
a
but
also
to
‘every
person
who
has
the
status
of
a
permanent
resident
of
corporation,
because
“no-‐one
can
be
convicted
of
an
offence
under
an
Canada”
unconstitutional
law”
! “permanent
resident”
is
to
be
found
in
the
federal
Immigration
and
Refugee
Protection
Act”
where
it
is
defined
(unhelpfully)
as
“a
person
who
has
acquired
A
foetus
not
a
legal
person,
either
at
common
law
or
civil
law
until
the
child
permanent
resident
status”
is
born
by
being
separated
alive
from
the
mother
(not
entitled
to
a
right
to
life
under
s
7
or
any
other
right
under
the
Charter)
Page
51
of
86
BURDEN
OF
RIGHTS
[WHO
HAS
THE
BURDEN
TO
FOLLOW
CHARTER
RIGHTS]
ELDRIDGE
V
B.C
(A-‐G)
1997:
held
that
the
Charter
was
applicable
despite
the
(This
is
governed
by
s
32(1)
of
the
Charter)
absence
of
any
power
of
compulsion
! Issue
was
whether
a
hospital
was
bound
by
charter.
They
did
not
provide
sign
(a) Both
Levels
of
Government
language
as
per
s15
equality.
! Section
32(1)
expressly
provides
that
the
Charter
applies
to
“the
Parliament
! British
Columbia
Act
funded
provision
of
health
services
and
government
of
Canada”
and
to
“the
legislature
and
government
of
each
! Held
that
hospital
implementing
a
specific
government
policy
or
program.
province”=
makes
clear
that
both
level
of
government
are
bound
by
the
! HOGG
says
weak,
does
not
apply
to
all
hospitals.
And
that
hospitals
did
not
Charter
require
statutory
authority
to
administer
health
services,
as
they
were
already
doing
so
prior
to
legislation.
(b) Parliament
of
Legislature
! References
in
s
32
to
the
“Parliament”
and
a
“legislature”
make
clear
that
the
!
So,
if
there
is
an
entity
exercising
statutory
powers
of
compulsion,
then
they
Charter
operates
as
a
limitation
on
the
powers
of
those
legislative
bodies—any
will
be
subject
to
Charter
(Slaight):
the
result
of
the
decision
in
Slaight
is
that
statute
enacted
by
either
Parliament
or
a
Legislature
which
is
inconsistent
with
some
adjudicative
bodies,
such
as
administrative
tribunals
and
labour
the
Charter
will
be
outside
the
power
of
(ultra
vires)
the
enacting
body
and
will
adjudicators,
are
bound
by
the
Charter
be
invalid
! Parliament
=
federal
legislative
body,
which
consists
(in
the
language
of
s
17
of
(d) Government
the
Constitution
Act
1867)
“of
the
Queen,
Senate
and
House
of
Commons
! If
an
entity
is
part
of
the
government,
then
the
Charter
will
ordinarily
apply
(Queen
is
represented
by
the
Governor
General
who
gives
royal
assent;
senate
to
all
of
its
actions.
is
the
upper
house
which
is
an
appointed
legislative
chamber;
house
of
!
Charter
applies
to
government
action
taken
under
prerogative
powers
commons
is
the
lower
house
which
is
an
elected
legislative
chamber)
(common
law
powers
possessed
only
by
government)
and
common
law
! Legislature=
provincial
legislative
body,
which
consists
in
the
case
of
Ontario
powers
possessed
by
everyone
(in
the
language
of
s
69
of
the
CA,
1867),
“of
the
Lieutenant
Governor
and
of
! Institutions
controlled
by
government
(agents):
Here,
not
governmental
one
house,
the
Legislative
Assembly
of
Ontario”
actors;
just
because
an
organization
is
created
by
statute,
relies
on
government
funding
for
its
survival,
and
serves
a
public
purpose
does
not
(c) Statutory
Authority
render
them
a
government
body.
! Any
body
exercising
statutory
authority,
for
example,
ministers,
officials,
! The
government
must
have
some
type
of
direct
control
in
shaping
the
municipalities,
administrative
tribunals,
is
bound
by
the
Charter
organization’s
policies
for
it
to
be
considered
a
government
body
(McKinney
v
! Since
neither
Parliament
nor
a
Legislature
can
itself
pass
a
law
in
breach
of
the
University
of
Guelph
–
Court
held
that
universities
are
NOT
subject
to
the
Charter,
neither
body
can
authorize
action
which
would
be
in
breach
of
the
Charter,
BUT
colleges
are)
Charter.
! Entities
implementing
government
programs:
Entities
will
be
subjected
to
the
! Key
characteristic
of
statutory
authority:
power
of
compulsion.
Not
power
of
Charter
not
if
they
are
characterized
as
‘government’,
but
ALSO
if
they
perform
obligation
(via
contract
obligations)
but
compulary
government
action.
an
act
properly
characterized
as
a
government
activity.
This
analysis
involves
! There
are
many
examples
which
illustrate
that
bodies
or
persons
possessing
looking
not
at
the
organization
itself,
but
at
the
specific
act
which
the
statutory
authority
are
often
independent
of
the
federal
or
provincial
organization
performs.
If
the
act
is
found
to
be
an
act
of
government,
the
governments
organization
is
subject
to
the
Charter
with
regards
to
that
act
(see
Eldridge)
! The
Charter
applies
to
the
exercise
of
statutory
authority
regardless
of
! The
CONTROL
TEST:
Whether
the
gov’t
has
assumed
control
of
the
function.
whether
the
actor
is
part
of
the
government
or
is
controlled
by
the
Existence
of
control
is
only
guide
to
whether
the
function
is
one
of
government
government
–
it
is
the
exertion
of
a
power
of
compulsion
granted
by
a
statute
to
which
Charter
applies.
Here
you
look
to
the
INSTITUTIONAL
OR
that
causes
the
Charter
to
apply
STRUCTURAL
LINK
! But
there
are
cases
which
deviated
from
that
position:
!
Government
“inaction”
:
s32
applies
to
all
matters.
If
there
is
a
positive
obligation
by
the
government,
their
inaction
is
caught
under
the
Charter.
Page
52
of
86
(e) Courts
! There
is
no
doubt
that
the
Charter
also
applies
to
action
taken
under
statutory
! But
in
Dolphin
Delivery,
SCC
stated
that
courts
not
part
of
government
for
authority
purposes
of
s
32(1)
of
Charter
(but
has
since
been
generally
ignored)
! The
Charter
appears
to
apply
to
courts
(BC
Government
Employees’
Union
v
COURT
"
whether
the
Charter
applies
to
the
body
employing
the
Act.
BC),
i.e.
a
court
falls
under
the
term
“government”
! Typically,
courts
seek
to
determine
if
the
entity
(e.g.
hospital)
is
itself
a
o “Court
is
acting
on
its
own
motion
and
not
at
the
instance
of
any
government
body
for
the
purposes
of
s.
32.
This
involves
an
inquiry
into
private
party”
and
the
courts
motivation
is
“entirely
public
in
nature
whether
the
entity
can,
either
by
its
very
nature
or
by
virtue
of
the
degree
of
rather
than
private”
governmental
control
exercised
over
it,
properly
be
characterized
as
‘government’.
(f) Common
law
o Hospitals
cannot
be
characterized
as
government
because
they
have
! In
Canada,
if
the
applicable
law
is
a
rule
of
the
common
law,
the
Charter
does
autonomy
as
to
who
sits
on
their
Boards,
and
the
manner
in
which
they
not
apply;
if
it
is
a
rule
of
statute,
it
does
apply
(Dolphin
Delivery)
hire
staff
and
deliver
health
care.
! But
it
does
influence
the
way
the
Charter
is
interpreted,
and
therefore
the
Charter
indirectly
applies
to
the
common
law
(Hill
v
Church
of
Scientology)
HOWEVER,
an
entity
may
be
found
susceptible
to
Charter
analysis
with
respect
to
a
o In
context
of
defamation
suit
–
brought
by
private
party,
not
part
of
particular
ACTIVITY
that
can
be
ascribed
to
the
government
his
governmental
duties
his
personal
reputation.
! -‐-‐
This
demands
not
an
examination
of
the
entity
but
the
act
itself.
If
the
act
is
o Was
still
necessary
to
determine
that
the
common
law
was
governmental
in
nature
-‐
for
example,
the
implementation
of
a
specific
consistent
with
Charter
Values
–
and
to
modify
the
charter
statutory
scheme
or
a
government
program-‐
the
entity
performing
it
will
be
accordingly.
subject
to
review
under
the
Charter
only
in
respect
of
that
act.
! Health
care
is
a
keystone
of
government
policy,
so
any
organization
providing
(g) Private
action
health
care
(including
hospitals)
must
do
so
in
a
way
that
conforms
to
Charter
! The
Charter
regulates
the
relations
b/w
government
and
private
persons,
but
it
provisions.
The
BC
Act
(statute)
funded
the
health
provisions.
does
not
regulate
the
relations
between
private
persons
! R
v
Buhay:
two
security
gaurds
open
a
locker
smelling
of
weed,
held
to
be
not
RATIO:
Entities
will
be
subjected
to
the
Charter
not
only
if
they
are
characterized
charter
worthy,
not
actors
of
the
state.
as
‘government’,
but
ALSO
if
they
perform
an
act
properly
characterized
o Yet
the
police
opening
the
locker
the
second
time
was
unreasonable
as
a
government
activity.
search
and
seizure.
This
analysis
involves
looking
not
at
the
organization
itself,
but
at
the
o Security
guards
private
actors.
specific
act
which
the
organization
performs.
If
the
act
is
found
to
be
an
! Private
actions
can
be
regulated
by
the
state:
act
of
government,
the
organization
is
subject
to
the
Charter
with
regards
o IF
so,
the
statutory
enforcement
and
action
will
be
caught
by
the
charter:
to
that
act.
o Ie.
Statute
giving
citizens
power
of
arrest.
If
violate
charter..
VANCOVER
TRANSPORTATION
AUTH
v
CANADIAN
FEDERATION
OF
STUDENTS
(2009)
REQUIRD
CASES
FOR
THE
APPLICATION
OF
THE
CHARTER
RIGHTS:
! The
Charter
applies
not
only
to
Parliament,
the
legislatures
and
the
government
themselves,
but
also
to
all
matters
within
the
authority
of
those
entities
ELDRIDGE
v
BC
! There
are
two
ways
to
determine
whether
the
Charter
applies
to
an
entity’s
FACTS:
A
group
of
deaf
individuals
sought
a
declaration
that
the
failure
to
provide
activities:
public
funding
for
sign
language
interpreters
for
the
deaf
when
they
(1)
By
enquiring
into
the
nature
of
the
entity
or
received
medical
services
violated
s.15
of
the
Charter.
(2)
By
enquiring
into
the
nature
of
its
activities.
If
the
entity
is
found
to
be
ISSUE:
Is
the
charter
enforceable
against
hospitals,
particularly
with
regards
to
“government”,
either
because
of
its
very
nature
or
because
the
the
way
they
deliver
medical
services?
government
exercises
substantial
control
over
it,
all
its
activities
will
be
REASONING:
subject
to
the
Charter
o There
is
no
question
that
the
Charter
applies
to
provincial
legislation.
Page
53
of
86
[5]
Override
of
Rights-‐
CONSTITUTION
ACT,
1982,
S.
33
Five-‐
Year
Limit
! Section
33(3)
is
a
sunset
clause,
under
which
an
express
declaration
will
Section
33
automatically
expire
at
the
end
of
the
5
years
! S
33
of
Charter
of
Rights
provides:
! S
33(4)
permits
the
express
declaration
to
be
re-‐enacted,
but
the
re-‐enacted
(1)
Parliament
or
the
legislature
of
a
province
may
expressly
declare
in
an
Act
of
declaration
will
also
expire
at
the
end
of
5
years
(s
33(5))
Parliament
or
the
legislature,
as
the
case
may
be,
that
the
Act
or
a
provision
thereof
shall
operate
notwithstanding
a
provision
included
in
section
2
or
sections
7
to
15
of
Specify
the
Declaration
this
Charter
! s
33
stipulates
that
the
Parliament
or
Legislature
must
“expressly”
declare
that
(2)
An
Act
or
a
provision
of
an
Act
in
respect
of
which
a
declaration
made
under
this
a
statute
is
to
operate
notwithstanding
a
Charter
right
section
is
in
effect
shall
have
such
operation
as
it
would
have
but
for
the
provision
of
this
Charter
referred
to
in
the
declaration
! The
express
declaration
contemplated
by
s
33(1):
(3)
a
declaration
made
under
ss
(1)
shall
cease
to
have
effect
5
years
after
it
comes
into
[1]
Becomes
a
“manner
and
form
requirement”
that
is
essential
to
the
validity
force
or
on
such
earlier
date
as
may
be
specified
in
the
declaration
(4)
Parliament
or
a
legislature
of
a
province
may
re-‐enact
a
declaration
under
ss(1)
of
any
statute
enacted
in
violation
of
a
provision
contained
in
s
2
or
ss
7
to
15
of
Charter
S
33
enables
the
Parliament
or
Legislature
to
“override;
s
2
or
ss7
to
15
[2]
Must
be
specific
as
to
the
statute
that
is
thereby
exempted
from
the
provisions
of
the
Charter
! If
a
statute
contains
an
express
declaration
that
it
is
to
operate
notwithstanding
[3]
Must
be
specific
as
to
the
Charter
right
which
is
to
be
overridden
a
provision
included
in
s
2
or
ss
7
to
15
of
the
Charter,
then
by
virtue
of
s
33(2)
o The
declaration
must
be
specific
as
to
the
statute,
but
blanket
the
statute
will
operate
free
from
the
invalidating
effect
of
the
Charter
declarations,
encompassing
omnibus
(compilation)
statues,
are
provision
referred
to
in
the
declaration
allowed.
They
are
allowed
to
reference
only
the
act
numbers,
and
not
! This
limits
(or
abolises)
one
or
more
of
the
rights
or
freedoms
guaranteed
by
s
2
the
specific
possible
violations
–
this
would
put
too
high
a
task
on
or
ss
7
to
15
legislature
to
determine
every
possible
breach
(FORD
v
Quebec
(A-‐G)
! If
the
override
power
did
not
exist
(or
if
it
were
not
exercised),
such
a
statute
would
be
valid
only
if
it
came
within
s
1
of
the
Charter:
the
courts
would
have
Retroactive
Effect
to
be
persuaded
that
the
statute
came
within
“such
reasonable
limits
! Before
Ford,
assumed
that
a
decision
striking
down
a
statute
for
breach
of
the
prescribed
by
law
as
can
be
demonstrably
justified
in
a
free
and
democratic
Charter
could
be
retroactively
reversed
by
the
competent
legislative
body
by
society”
the
exercise
of
its
override
power
! Today,
declaration
CANNOT
be
retroactive
(Ford)
Rights
that
May
be
Overridden
Applies
only
to
rights
in
2
and
ss.7
to
15
of
charter:
REQUIRED
CASE
FOR
‘OVERRIDE
OF
RIGHTS’
! s.
2-‐
fundamental
freedoms
/
ss.
7
to
14-‐legal
rights
/
.s
15-‐
equality
Does
NOT
include:
! ss.
3
to
5-‐
democratic
rights
//
s.
6-‐
mobility
rights
//
ss.
16
to
23-‐
language
FORD V QUEBEC
rights
//
s.
24-‐
enforcement
provisions
//
s.
28-‐
sexual
equality
FACTS:
Quebec
lost
initial
case
re
signs
in
only
French.
Amended
the
law
to
retract
out
from
constitution.
The
Quebec
provincial
legislature
invoked
! In
order
to
be
effective
under
s
33(2),
the
declaration
must
refer
specifically
to
the
Notwithstanding
clause
to
protect
the
amended
legislation
from
any
the
Charter
provision
that
is
to
be
overridden
further
judicial
review
under
the
Charter.
When
the
five-‐year
time
limit
for
the
Notwithstanding
declaration
expired,
it
was
not
extended
by
the
! More
than
one
provision,
or
even
all
(s
2
and
ss
7
to
15)
can
be
referred
to
Quebec
legislature.
(FORD
v
QUEBEC
(A-‐G)),
but
a
declaration
that
did
not
specify
any
particular
! Quebec,
opposed
the
Charter,
wanted
to
create
an
automatic
rule
that
Charter
provision
would
NOT
be
effective
would
have
ALL
their
legislation
operate
notwithstanding
the
charter.
Page
54
of
86
ISSUE:
1)
Whether
legislation
overriding
multiple
sections
of
the
Charter
is
acceptable;
2)
whether
an
all-‐encompassing
(omnibus)
use
of
the
override
is
valid
(obiter);
3)
whether
a
retrospective
override
clause
is
acceptable
(obiter)
Held:
1.
YES
s.33
declaration
is
sufficiently
express
if
it
refers
to
the
section/subsection
or
paragraph
of
Charter
which
contains
the
provision
to
be
overridden
(need
express
language
that
the
infringement
on
Charter
rights
would
be
sufficiently
drawn
to
public
attention).
2.
Ominous
reference
to
rights
was
sufficient;
because
a
legislative
body
“might
not
be
in
a
position
to
judge
what
provisions
of
the
Charter
might
be
successfully
invoked
against
various
aspects
of
the
Act
in
question”
3.
s.33
permitting
“prospective
derogation
only.”—not
retrospective
COMMENTS:
! Use
of
s.33
would
be
politically
crippling
for
most
governments.
Reality
of
political
costs
of
invoking
s.33
will
keep
governments
in
check.
We
have
created
a
culture
in
which
the
use
of
the
clause
now
would
be
met
with
political
disapprobation
Page
55
of
86
[6]
Limitation
of
Rights-‐
CONSTITUTION
ACT,
1982,
S.
1
! It
is
for
the
government
to
persuade
the
court
that
the
challenged
law
is
a
“reasonable
limit”
and
that
it
“can
be
demonstrably
justified
in
a
free
and
Section
1
of
the
Charter
of
Rights
democratic
society”
(established
in
R
v
OAKES)
! =
The
Canadian
Charter
of
Rights
and
Freedoms
guarantees
the
rights
and
! Court
held
the
standard
of
proof
was
“the
civil
standard,
proof
by
a
balance
of
freedoms
set
out
in
it
subject
only
to
such
reasonable
limits
prescribed
by
law
as
probabilities”
can
be
demonstrably
justified
in
a
free
and
democratic
society
! S
1
guarantees
the
rights
and
freedoms
set
out
in
Charter
but
makes
clear
they
Presumption
of
Constitutionality
are
NOT
absolute
! In
Charter
cases,
there
is
no
presumption
of
constitutionality
(although
the
! Judicial
review
of
legislation
under
the
Charter
should
proceed
in
2
stages:
reading
down
principle
of
interpretation
applies)
! Reading
down
=
where
a
law
is
open
to
2
interpretations
(one
unconstitutional
st
1
stage
=
court
must
decide
whether
the
challenged
law
has
the
effect
of
limiting
and
the
other
constitutional),
the
latter
should
be
selected
one
of
the
guaranteed
rights
(involves
the
interpretation
and
application
of
the
! Yet
there
is
deference
in
certain
areas…
provisions
of
the
Charter
that
define
the
guaranteed
rights)
Limits
nd
2
stage
is
reached
if
challenged
law
does
have
this
effect:
court
must
then
decide
! S
1
provides
that
that
the
Charter
rights
are
subject
“to
such
reasonable
limits
whether
the
limit
is
a
reasonable
one
that
can
be
demonstrably
justified
in
a
free
prescribed
by
law
as
can
be
demonstrably
justified
in
a
free
and
democratic
and
democratic
society
(involves
the
interpretation
and
application
of
s
1
of
Charter)
society”
! Limits
do
not
equal
infringements.
! Prescribed
by
law=
make
clear
that
an
act
that
is
not
legally
authorized
can
never
be
justified
under
s
1,
no
matter
how
reasonable
or
demonstrably
REASONABLE
AND
DEMONSTRABLY
JUSTIFIED
-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐
justified
it
may
appear
to
be.
(a) OAKES
TEST
What
is
a
Right?
! 4
criteria
to
be
satisfied
by
a
law
that
qualifies
as
a
‘reasonable
limit
that
can
! Dickson
CJ
in
Oakes:
“the
words
free
and
democratic
society”
in
s1
set
values
of
be
demonstrably
justified
in
a
free
and
democratic
society:
a
free
and
democratic
society
where
there
was
an
identity
of
values
underlying
(a)
Sufficiently
important
objective;
"
(law
must
pursue
objective
sufficiently
important)
the
rights
and
their
limits.
(b)
Rational
connection;
"
(law
must
be
rationally
connected
to
objective)
(c)
Least
drastic
means;
"
(Law
must
impair
right
no
more
than
is
necessary
to
achieve
obj)
Relationship
with
s1.
and
Rights:
(d)
Proportionate
effect
"
(Law
must
not
have
disproportionate
severe
effect
on
persons)
! Close
relationship
b/w
standard
of
justification
required
under
s1
and
the
scope
of
guaranteed
rights.
PART
1:
LAW
MUST
BE
SUFFICIENTLY
IMPORTANT
OBJECTIVE
TO
JUSTIFY
LIMIT
! If
guaranteed
rights
get
broad
interpretation
"
court
relaxes
standard
of
o RARE:
rarely
will
court
reject
legislative
judgment
that
objective
is
sufficiently
justification
under
s1
to
uphold
legislation
limiting
the
extended
right.
important
to
justifying
a
charter
right.
! Example:
if
freedom
of
expression
catches
perjury
or
fraud,
then
foolish
to
have
a
strict
standard
of
justification
in
order
to
regulate
such
harmful
behavior.
Identifying
the
Objective:
o Difficult
to
determine
the
objective
of
a
challenged
law
Burden
of
Proof
of
factual
issues
in
Charter
litigation:
as
per
OAKES
o The
higher
the
level
of
generality
at
which
a
legislative
objective
is
expressed,
the
more
desirable
the
objective
will
appear
and
will
become
1st
stage
=
the
burden
of
proving
all
elements
of
the
breach
of
a
Charter
right
rests
a
serious
problem
for
the
justification
of
the
law
on
the
person
asserting
the
breach
o Remember:
only
reason
we
search
for
the
objective
is
to
determine
whether
there
is
justification
for
infringement
under
the
charter.
So..
nd
2
stage=
if
reached
that
a
Charter
right
has
been
infringed,
the
burden
of
o Statement
of
the
objective
should
be
related
to
the
infringement
of
persuasion
shifts
to
government
(or
other
party)
seeking
to
support
the
challenged
the
Charter,
rather
than
to
other
goals.
law
(government
need
ONLY
a
“rational
basis”
for
its
legislation)
(held
in
OAKES)
Page
56
of
86
o Ie.
RJR
MacDonald
v
Canada:
the
challenged
law
banned
advertising
of
tobacco
o 3
rules
emerge
from
the
decision
in
Big
M:
products.
Thus,
the
objective
should
not
have
been
phrased
as
the
protection
of
a. An
objective
cannot
provide
for
the
basis
for
s
1
justification
if
the
objective
is
public
health
from
the
use
of
tobacco.
It
was
said
that
the
objective
must
be
to
incompatible
with
the
values
entrenched
by
the
Charter
of
Rights
prevent
people
in
Canada
from
being
persuaded
by
advertising
and
promotion
b. An
objective
cannot
provide
for
the
basis
for
s
1
justification
of
the
objective
to
use
tobacco
products.
(a
narrower
and
more
specific
justification).
is
ultra
vires
the
enacting
legislative
body
on
federal
distribution
of
powers
grounds
o Irwin
Toy
v.
Quebec:
SCC
upheld
a
Quebec
law
that
prohibited
advertising
c. An
objective
cannot
provide
for
the
basis
for
s
1
justification
if
that
objective
directed
at
children
under
13.
The
majority
defined
the
objective
of
the
law
at
a
did
not
in
fact
cause
the
enactment
of
the
law
(Cannot
shift).
very
low
level
of
generality,
as
the
protection
of
children
(a
vulnerable
group)
from
advertising.
Held
the
objective
was
“pressing
and
substantial”.
(having
PART
2:
PROPORTIONALITY
TEST(s)
-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐-‐
defined
the
objective
in
narrow
terms,
it
was
then
easy
to
find
the
proportionality
tests
were
satisfied
[1]
Rational
Connection
o The
law
must
be
rationally
connected
to
the
objective
of
the
law
When
does
an
objective
achieve
this
degree
of
importance??
(per
Dickson
J
in
Oakes)
!
THE
IMPORTANCE
OF
OBJECTIVE
(rare,
only
2
cases
failed
this
test)
o Determining
how
well
the
legislation
has
been
tailored
to
suit
its
purpose.
st
1
,
it
must
be
consistent
with
the
value
of
a
free
and
democratic
society
o The
law
must
be
carefully
designed
to
achieve
the
objective
in
question;
it
nd
2 ,
the
objective
must
relate
to
concerns
which
are
“pressing
and
substantial”
should
not
be
arbitrary,
unfair,
or
based
on
irrational
considerations
&
Not
Trivial
rd
3 ,
the
objective
must
be
directed
to
“the
realization
of
collective
goals
of
o Benner
v
Canada
1997:
law
required
persons
born
to
a
Canadian
mother
to
fundamental
importance”
apply
for
citizenship
and
pass
a
security
check,
while
persons
born
to
a
Canadian
father
was
entitled
to
citizenship
automatically
upon
registering
the
o A-‐G
of
Quebec
v.
Ford
1988:
Quebec
law-‐
requiring
public
signs
to
be
solely
in
birth
in
Canada.
the
French
language.
Court
held
law
infringed
freedom
of
expression
and
could
o The
objective
was
said
to
be
to
screen
potential
citizens
in
order
to
keep
not
be
justified
under
s
1.
However,
court
recognized
that
the
vulnerable
dangerous
people
out
(re:
required
security
check).
The
court
held
that
position
and
enhancement
of
the
language
was
a
sufficiently
important
there
was
no
rational
connection
between
the
objective
and
the
objective
to
justify
a
limit
on
freedom
of
expression.
The
law
was
struck
down,
discrimination.
Children
of
Canadian
mothers
could
not
rationally
be
not
because
of
any
doubt
as
to
the
legitimacy
of
the
purpose,
but
because
the
regarded
as
more
dangerous
than
children
of
Canadian
father
banning
of
English
was
a
disproportionate
impairment
of
the
rights
of
English
speakers
Causation:
o The
essence
of
rational
connection
is
a
causal
relationship
between
the
o R
v
Big
M
Drug
Mart
1985
(inadmissible
objectives):
court
held
the
Lord’s
Day
objective
of
the
law
and
the
measures
enacted
by
the
law.
Act
which
was
a
federal
Sunday
closing
law,
infringed
the
guarantee
of
freedom
o Often
a
difficult
matter
to
establish
by
evidence
and
the
SCC
has
not
of
religion.
Its
purpose,
the
court
held
was
to
“compel
the
observance
of
the
always
insisted
on
direct
proof
of
the
causal
relationship
Christian
Sabbath.
That
purpose
was
indirectly
contradictory
of
the
Charter
o La
Forest
J.
in
RJR-‐
MacDonald
v
Canada
said
that
a
causal
connection
right
and
could
not
be
a
purpose
that
justified
limiting
the
right.
(court
based
on
“reason”
or
“logic”
would
suffice,
even
though
the
evidence
acknowledged
that
the
secular
objective
of
providing
a
common
day
of
rest
was
“admittedly
inconclusive”
[evidential
burden
is
low,
deference]
would
be
sufficiently
important
to
justify
overriding
a
Charter
right
(R
v
Edwards),
but
in
this
case
it
was
a
religious
purpose)
[2]
Least
Drastic
Means
[Minimum
Impairment
Test]
"
0AKES
FAILED
HERE
o The
law
must
impair
the
right
no
more
than
is
necessary
to
accomplish
the
objective.
=
the
CENTRE
of
the
inquiry
into
s
1
justification
(for
the
majority
of
rd
cases
this
3
step
is
the
arena
of
debate)
Page
57
of
86
o This
branch
of
the
Oakes
test
can
be
described
as
the
minimum
impairment
o The
question
is
whether
the
Charter
infringement
is
too
high
a
price
to
pay
for
test
because
it
insists
that
the
limit
on
the
Charter
right
be
the
minimum
that
is
the
benefit
of
the
law
necessary
to
accomplish
the
desired
objective
o This
part
of
the
test
however,
has
never
influenced
the
outcome
of
a
case,
and
it
is
redundant
#
of
laws
that
have
failed
the
requirement
of
least
drastic
means:
o If
the
first
part
of
the
test
is
passed
(sufficient
objective),
then
this
one
should
necessarily
be
passed
as
well-‐
but
the
following
case
considered
this
argument
RJR
MacDonald
v
Canada:
the
law
failed
the
drastic
means
branch
of
s
1
and
rejected
it:
inquiry
because
the
total
ban
encompassed
purely
informational
and
brand-‐
recognition
advertising
that
played
no
role
in
persuading
people
to
use
ALBERTA
v
HUTTERIAN
BRETHREN
OF
WILSON
COLONY
2009:
tobacco
products.
The
law
was
therefore
struck
down.
FACTS:
AL
traffic
law
required
photograph
of
each
holder
of
a
licence.
Court
held
the
law
limited
the
religious
freedom
of
the
Hutterian
Brethren
Ross
v
New
Brunswick:
a
board
of
inquiry
order
that
a
person
employed
in
a
because
they
believed
that
the
Bible
forbade
them
from
having
pictures
non-‐
teaching
position
by
a
school
board
must
be
fired
if
he
continued
his
taken.
dissemination
of
anti-‐semitic
ideas
has
been
held
to
be
too
drastic
a
means
HELD
Majority
said
was
justified
under
s1.
Law
passed
first
three
steps
of
of
rectifying
a
discriminatory
climate
in
the
school
th
Oakes,
but
McClaclin
made
clear
that
the
4
step
also
had
to
be
th
satisfied.
She
said
that
the
4
step
was
satisfied
because
the
effects
of
Rocket
v
Royal
College
of
Dental
Surgeons:
Ontario’s
prohibition
on
the
universal
photo
requirement
outweighed
the
effects
of
the
advertising
by
dentists
has
been
held
to
be
too
drastic
a
means
of
claimants
religious
rights.
maintaining
high
professional
standards
o She
held,
the
answers
lies
in
the
fact
that
the
first
3
stages
of
Oakes
are
anchored
in
an
assessment
of
the
law’s
purpose.
Only
the
fourth
o In
each
of
these
cases
the
SCC
held
that
other
laws
were
available
to
the
branch
takes
full
account
of
the
“severity
of
the
deleterious
effects
of
a
enacting
legislative
body
which
would
still
accomplish
the
desired
objective
but
measure
on
individuals
or
groups”
which
would
impair
the
Charter
right
less
than
the
law
that
was
enacted
st th
o HOGG:
finds
distinction
between
1
and
4
step
a
difficult
one.
Margin
of
appreciation:
o "
THEREFORE:
if
objective
is
sufficiently
important
and
is
pursued
by
o Dickson
in
OAKES:
the
only
law
that
was
qualified
to
enter
into
kingdom
least
drastic
means,
then
it
must
fllow
that
the
effects
of
the
law
are
of
validity
was
the
law
that
impaired
the
right
‘as
little
as
possible’.
an
acceptable
price
to
pay
for
the
benefit
of
the
law.
Thus
a
positive
o But
court
must
pay
some
degree
of
deference
to
legislative
bodies
answer
to
step
one
=positive
answer
to
step
4.
o The
majority
in
Edwards
Books
recognized
this
idea
of
a
margin
of
Application
to
Qualified
Rights
(qualified
by
own
notions
of
reasonableness)
appreciation
–
we
look
for
a
reasonable
legislative
effort
to
minimize
! Unclear
whether
s
7
Charter
breach
could
be
justified
(ie.
Can
a
law
not
in
the
infringement
of
the
Charter
right,
rather
than
insisting
that
only
the
accordance
with
the
principles
of
fundamental
justice
be
justified
as
a
least
possible
infringement
could
survive
“reasonable
limit”)
! Law
contained
a
Sabbatarian
exemption
for
retailers
who
o R
v
Morgentaler
(No
2)(1988)
SCC=
probably
not
observed
Saturday
as
the
Sabbath.
However
limits
on
this.
o The
finding
that
the
abortion
law
offended
fundamental
justice
! Margin
of
appreciation
tolerated
a
number
of
Sunday
trading
virtually
entailed
a
finding
that
the
law
was
not
a
“reasonable
limit”
laws.
and
was
not
“demonstrably
justified
in
a
free
and
democratic
society”
[3]
Proportionate
effect
(whether
effect
is
too
high
price
to
pay
for
benefit
of
law)
Application
to
Common
Law
o The
law
must
not
have
a
disproportionately
severe
effect
on
the
persons
to
! Oakes
test
applies
to
common
law
limits
on
rights.
It
is
well
established
that
a
whom
it
applies
rule
of
the
common
law
may
be
a
limit
“prescribed
by
law”
under
s
1,
and
in
2
o Requirement
of
“proportionate
effect”
requires
a
balancing
of
the
objective
cases
common
law
rules
in
derogation
of
Charter
rights
have
been
held
to
be
sought
by
the
law
against
the
infringement
of
the
Charter
justified
under
s
1
(ie,
RWDSU
v
Dolphin
Delivery;
BCEGU
v
B.C.)
Page
58
of
86
[7]
Freedom
of
Conscience
&
Religion-‐CONSTITUTION
ACT,
1982,
S.
2(a)
Sunday
Observance
Cases:
Distribution
of
Powers
[both
legislatures
have
competence]
! Issue
in
these
cases
was
whether
people
should
have
the
ability
to
make
a
profit
! There
are
cases
where
it
has
been
held
or
assumed
that
any
law
restricting
the
on
Sundays;
challenges
were
brought
by
companies
who
wished
to
open
their
stores
on
Sundays
in
order
to
maximize
profits
freedom
of
religion
is
within
exclusive
federal
competence
! On
the
other
hand,
s
92(12)
expressly
allocated
to
the
provincial
Legislatures
(1)
R
v
Big
M
Drug
Mart
"
purpose
compelled
Sunday
observance
the
power
over
the
solemnization
of
marriages,
a
subject
with
important
religion
dimensions;
and
s
93(3)
of
denominational
schools
! Legislation
concerning
religion
could
be
valid
by
either
Parliament
or
(2)
R
v
Edwards
Books" :
provinces
"
(Edwards
Books,
SCC
1986)
o Ontario’s
Retail
Business
Holiday
Act
was
under
challenge.
The
Act
! Since
the
adoption
of
the
Charter
of
Rights
in
1982,
any
law
that
affects
prohibited
retail
stores
from
opening
on
Sunday.
Legislative
history
of
the
freedom
of
religion
will
be
vulnerable
to
challenge
under
s
2(a)
of
the
Charter
Act
showed
the
purpose
was
the
secular
one
providing
a
common
pause
day
for
retail
workers.
Court
held
nonetheless
that
the
law
infringed
s
2(a),
because
its
effect
was
to
impose
an
economic
burden
on
those
retailers
SECTION
2(A)
OF
THE
CHARTER
! Guarantees
to
“everyone”
the
“fundamental
freedom”
of
“freedom
of
who
observed
a
Sabbath
on
a
day
other
than
Sunday.
conscience
and
religion”
o Court
yet
upheld
the
law
under
s
1
of
Charter.
The
secular
purpose
of
! Like
other
charter
rights,
s
2(a)
is
subject
to
s
1
(the
limitation
clause)
providing
a
common
pause
day
was
sufficiently
important
to
justify
a
limit
! A
law
that
limits
freedom
of
conscience
and
religion
will
be
valid
under
1
if
it
on
freedom
of
religion.
comes
within
the
phrase
“such
reasonable
limits
prescribed
by
law
as
can
be
o However
the
Act
did
in
fact
contain
a
“sabbatarian
exemption”
for
retailers
who
closed
their
stores
on
Saturdays,
but
the
exception
was
hedged
with
a
demonstrably
justified
in
a
free
and
democratic
society”
size
restriction
that
made
it
applicable
only
to
small
stores.
Court
held
that
the
law
pursued
its
objective
by
the
least
drastic
means,
with
a
minimum
Freedom
of
Conscience
! Reference
to
“conscience”,
would
protect
systems
of
belief
which
are
not
intrusion
on
freedom
of
religion
theocentric
(centred
on
a
deity
(holy
being)),
and
which
might
not
be
characterized
as
religions
for
that
reason
(or
for
other)
"
R
v
Morgentaler
! The
Sunday-‐
closing
cases,
which
established
that
there
is
a
constitutional
obligation
under
s
2(a)
to
accommodate
those
persons
whose
religion
calls
for
observance
of
a
Sabbath
on
a
day
other
than
Sunday
Freedom
of
Religion
(Leading
case
=
R
v
Big
M
Drug
Mart
1985:)
Other
Religious
Practices
o SCC
struck
down
the
Lord’s
Day
Act,
a
federal
statute
that
prohibited
(with
exceptions)
commercial
activity
on
Sunday.
Court
held
the
purpose
of
the
! The
idea
that
freedom
of
religion
authorizes
religious
practices
only
so
far
as
Act,
derived
from
the
history
and
terms
of
the
Act,
was
to
“compel
the
they
do
not
injure
others
has
been
abandoned
by
the
SCC
in
favour
of
an
observance
of
the
Christian
Sabbath”.
Purpose
was
an
infringement
of
unqualified
right
to
do
anything
that
is
dictated
by
a
religious
belief
(B.(R.)
v.
freedom
of
religion
of
non-‐
Christians,
because
by
virtue
of
this
freedom,
Children’s
Aid
Society
(1995)
“government
may
not
coerce
individuals
to
affirm
a
specific
religious
o In
this
case
SCC
held
that
the
decision
of
parents
to
prohibit
doctors
from
giving
a
blood
transfusion
to
their
baby
was
protected
by
practice
for
a
sectarian
purpose.”
freedom
of
religion
because
it
was
dictated
by
their
beliefs
as
Definition
of
religion
offered
in
this
case
by
Dickson
J:
Jehovah’s
witnesses.
o ‘the
essence
of
freedom
of
religion
is
the
right
to
entertain
such
religious
o Held:
La
Forest:
Right
to
choose
medical
treatment
for
child
in
beliefs
as
a
person
chooses,
the
right
to
declare
religious
beliefs
openly
accordance
with
their
religious
belief
is
of
fundamental
importance
in
and
without
fear
of
hindrance
or
reprisal,
and
the
right
to
manifest
freedom
of
religion.
YET
statutory
procedure
was
justified
under
s
1:
religious
belief
by
worship
and
practice
or
by
teaching
and
o Iacobucci
and
Major
JJ
took
the
view
that
“a
parent’s
freedom
of
religion
does
not
include
the
imposition
on
the
child
of
religious
dissemination’=
s
2(a)
protects
religious
practices
as
well
as
religious
practices
which
threaten
the
safety,
health
or
life
of
the
child.”
beliefs
Page
59
of
86
Ross
v
New
Brunswick
School
District
No.
15
1996
o Remarkable
feature
of
the
majority
opinion
in
this
case
is
that
a
!
SCC
held
that
a
damaging
practice
was
protected
by
freedom
of
religion
person
also
has
a
constitutional
right
to
act
on
those
views
(namely
the
dissemination
of
the
opinion
that
Christian
civilization
was
being
Dissent-‐
destroyed
by
an
International
Jewish
conspiracy).
o Bastarache:
Religion
is
a
collective
exercise.
The
test
cannot
be
a
! Ross
the
school
teacher
disseminated
it
not
in
his
teaching
but
in
the
form
of
personalized
approach.
books,
letters
to
the
newspapers,
etc).
Ross
has
been
removed
from
his
o Binnie:
You
should
only
be
able
to
use
2(a)
as
a
shield
to
protect
teaching
position
by
the
order
of
a
board
of
inquiry.
against
govt
interference.
Once
you
sign
a
contract,
you
can’t
use
! Court
held
that
order
infringed
Ross’s
freedom
of
religion
(as
well
as
freedom
freedom
of
religion
as
argument
anymore.
of
expression).
o However
the
court
held
that
most
of
the
order
could
be
justified
ALBERTA
v
HUTTERIAN
BRETHREN
OF
WILSON
COLONY
2009:
under
s
1
as
a
measure
to
remedy
an
anti-‐semitic
environment
in
the
school.
This
justified
Ross’s
removal
from
his
teaching
position
to
a
FACTS:
non-‐
teaching
position
with
the
school
board,
but
it
did
NOT
justify
a
! A
colony
of
Hutterian
Brethren
brought
proceedings
against
the
government
of
part
of
the
order
that
required
that
Ross
be
dismissed
from
a
non-‐
Alberta
to
obtain
an
exemption,
on
religious
grounds,
from
the
requirement
of
teaching
position
if
he
resumed
his
anti-‐semitic
activity.
provincial
law
that
a
driver’s
licence
must
display
a
photograph
of
the
holder.
o La
Forest
–
did
not
discuss
if
anti-‐semitic
activity
was
religious,
held
They
believe
that
having
their
photos
taken
(even
under
compulsion
of
law)
is
that
its
DEFINITION
was
to
be
given
a
broad
interpretation.
(did
not
forbidden
by
the
Bible.
question
if
Ross’s
writings
were
honest
religious
statements).
! Alberta
(in
common
with
the
other
provinces)
requires
a
driver’s
license
to
display
a
photo
of
the
holder.
The
purposes
are
to
enable
police
to
identify
! The
definition
of
the
religious
practices
that
are
protected
under
s
2(a)
was
any
driver
involved
in
an
accident
or
suspected
of
driving
offence.
expanded
even
further
in
"
! In
2003
was
the
establishment
by
the
province
of
a
data
bank
of
digital
photos
of
all
licensed
drivers,
which
was
to
be
used
to
prevent
identity
theft
and
therefore
all
drivers
had
to
have
their
photos
in
the
data
bank.
Reason
for
SYNDICAT
NORTHCREST
v
AMSELEM
2004:
subjective
test
of
‘belief’
amending
in
2003
was
to
make
the
photo
requirement
universal.
FACTS:
Condominium
owners
who
were
orthodox
Jews,
claimed
the
right
to
build
SC
HELD:
“succahs”
(temporary
dwellings)
on
the
balconies
of
their
condominium
! The
Hutterian
claimants
had
a
sincere
religious
belief
that
prohibited
their
apartments
where
they
would
live
for
nine
days
each
year
for
the
festival
of
being
photographed
and
that
belief
was
protected
by
s
2(a).
‘succot’.
The
condominiums
by-‐
laws
prohibited
“constructions
of
any
kind
whatever”
on
the
balconies.
Other
condo
owners
sought
an
injunction
to
HOWEVER,
prevent
building
of
the
succahs.
Purpose
of
the
by-‐law
was
to
maintain
the
• The
majority
held
that
universal
photo
requirement
was
justified
under
s
1:
it
aesthetic
external
appearance
of
the
building
and
the
practical
purpose
of
served
an
important
purpose
and
did
not
impose
a
severe
burden
on
the
keeping
the
balconies
free
of
obstruction
as
fire
escape
routes.
claimants,
who
could
avoid
the
requirement
by
using
alternative
means
of
transport.
The
requirement
was
a
reasonable
limit
on
freedom
of
religion
and
HELD:
Claimants
were
entitled
to
erect
their
succahs
in
defiance
of
the
by-‐laws
the
Hutterian
claimants
were
not
entitled
to
an
exception
Iacobucci
J
(majority):
! Defined
protected
religious
practice
in
an
extraordinarily
broad
fashion.
The
DISSENT:
Three
justices
dissented
and
would
have
not
required
the
Hutterites
to
practice
need
not
be
part
of
an
established
belief
system,
or
even
a
belief
be
photographed
to
be
licensed.
In
three
separate
opinions,
system
shared
by
some
others;
it
could
be
unique
to
the
claimant.
The
Justices
Abella,
LeBel,
and
Fish
found
that
this
policy
was
not
minimally
practice
need
not
be
perceived
as
obligatory
by
the
claimant;
“voluntary
impairing,
since
it
would
not
significantly
enable
identity
theft
to
allow
expressions
of
faith”
were
equally
protected.
All
that
was
necessary
to
the
exceptions,
and
it
would
have
a
large
detrimental
effect
on
the
qualify
a
practice
for
Charter
protection
was
the
claimant
sincerely
Hutterites'
way
of
life,
since
they
would
have
to
employ
outsiders
to
believed
that
the
practice
was
“of
religious
significance”
Test
was
wholly
perform
all
their
necessary
driving.
subjective.
Page
60
of
86
Waiver
of
Religious
Practices
! Bruker
v
Marcovitz
2007:
indicates
that
you
can
contract
to
withhold
a
religious
practice/
belief,
although
Syndicat
Northwest
indicates
you
cannot
(Binnie
J
argues
in
dissent
that
it
impacts
other’s
rights
as
well).
Religious
Marriage
REFERENCE
RE:
SAME
SEX
MARRIAGE
2004:
! Court
was
asked
if
Parliament
can
enact
a
bill
legalizing
marriage
for
civil
purposes:
o Held
that
parliament
could
do
so
under
its
power
over
marriage
s91(26)
! Does
the
Freedom
of
Religion
Guaranteed
by
Section
2(a)
of
the
Charter
Protect
Religious
Officials
From
Being
Compelled
to
Perform
Same-‐Sex
Marriages
Contrary
to
Their
Religious
Beliefs?
o The
concern
here
is
that
if
the
Proposed
Act
were
adopted,
religious
officials
could
be
required
to
perform
same-‐sex
marriages
contrary
to
their
religious
beliefs.
o If
a
promulgated
statute
were
to
enact
compulsion,
we
conclude
that
such
compulsion
would
almost
certainly
run
afoul
of
the
Charter
guarantee
of
freedom
of
religion,
given
the
expansive
protection
afforded
to
religion
by
s.
2(a)
of
the
Charter.
(R
v
Drug
Mart)
! The
right
to
freedom
of
religion
enshrined
in
s.
2(a)
of
the
Charter
encompasses
the
right
to
believe
and
entertain
the
religious
beliefs
of
one’s
choice,
the
right
to
declare
one’s
religious
beliefs
openly
and
the
right
to
manifest
religious
belief
by
worship,
teaching,
dissemination
and
religious
practice.
! The
performance
of
religious
rites
is
a
fundamental
aspect
of
religious
practice.
It
therefore
seems
clear
that
state
compulsion
on
religious
officials
to
perform
same-‐sex
marriages
contrary
to
their
religious
beliefs
would
violate
the
guarantee
of
freedom
of
religion
under
s.
2(a)
of
the
Charter.
Page
61
of
86
[8]
Freedom
of
Expression-‐
CONSTITUTION
ACT,
1982,
S.
2(b)
(c) Federal
power
! Power
to
regulate
political
speech;
to
make
particular
kinds
of
speech
criminal
Section
2(b)
of
the
Charter
as
it
has
done
in
the
crimes
of
fraud,
obscenity,
hate
propaganda
an
! Guarantees
to
“everyone”
the
“fundamental
freedom”
of:
freedom
of
communicating
for
the
purposes
of
prostitution;
and
power
to
regulate
speech
thought,
belief,
opinion
and
expression,
including
freedom
of
the
press
and
in
the
media
that
come
within
federal
jurisdiction,
namely,
radio
and
television
other
media
of
communication
! This
section
is
also
subject
to
s
1(the
limitation
clause)
of
the
Charter.
A
law
Reasons
for
Protecting
Expression
that
limits
freedom
of
expression
will
be
valid
under
s
1
if
it
comes
within
the
! A
number
of
rationales
including:
it’s
role
as
an
instrument
of
democratic
phrase
“such
reasonable
limits
prescribed
by
law
as
can
be
demonstrably
government
(as
expressed
in
Switzman
v
Elbling
when
Rand
J
said
that
justified
in
a
free
and
democratic
society
“
parliamentary
government
was
“ultimately
governed
by
the
free
public
st
! For
all
charter
rights,
there
is
a
2
stage
process:
1
must
ask
whether
the
law
opinion
of
an
open
society”
and
it
demanded
“the
condition
of
a
virtually
nd
has
the
purpose
or
effect
of
limiting
the
relevant
right;
2
the
issue
is
whether
unobstructed
access
to
and
diffusion
of
ideas”
and
Abbot
J
said
that
“the
right
the
law
can
be
upheld
under
s
1
if
there
is
an
infringement.
of
free
expression
of
opinion
and
of
criticism”
were
“essential
to
the
working
of
a
parliamentary
democray
such
as
ours”;
it’s
role
as
an
instrument
of
truth;
But
the
unqualified
language
of
s
2(b),
reinforced
by
the
broad
interpretation
the
instrument
of
personal
fulfillment.
that
has
been
given
to
that
language,
means
that,
in
most
of
the
freedom
of
(Irwin
Toy
accepted
each
of
these
reasons
for
protecting
freedom
of
expression
cases,
it
is
easy
to
decide
that
yes,
the
impugned
law
does
limit
s
expression)
2(b)
! The
breadth
of
this
right
is
entailed
by
acceptance
of
the
personal
fulfillment
Distribution
of
Powers
rationale
(e.g.
R
v
Sharpe:
there
was
a
constitutional
challenge
to
the
offence
of
possession
of
child
pornography;
the
SCC
acknowledged
that
such
material
(a) Political
speech
made
no
contribution
to
democratic
government
and
made
no
contribution
to
! Alberta
Press
case
1938:
SCC
struck
down
an
Alberta
statute
that
compelled
the
search
for
truth,
but
the
Court
held
that
it
should
be
constitutionally
newspapers
in
Alberta
to
publish
a
government
reply
to
any
criticism
of
protected
because
of
its
role
as
an
instrument
of
personal
fulfillment)
provincial
government
policies.
Duff
C.J.
and
Cannon
J
asserted
that
free
political
discussion
(“the
breath
of
life
of
parliamentary
institutions)
was
so
Meaning
of
Expression
important
to
the
nation
as
a
whole
that
it
could
not
be
regarded
as
a
value
(a) Definition
of
expression
that
was
subordinate
to
other
legislative
objectives;
nor
could
it
be
regarded
! SCC
has
defined
“expression”
as:
“activity
is
expressive
if
it
attempts
to
as
a
local
or
private
matter
(s92(16))
or
as
a
civil
right
“in
the
province”
(s
convey
meaning”
(R
v
Keegsta;
Irwin
Toy)
92(13)).
It
followed
that
it
was
outside
the
power
of
the
provinces,
and
within
! There
isn’t
much
activity
that
is
NOT
included
in
this
definition.
But
what
is
the
exclusive
power
of
the
federal
Parliament
definitely
excluded
is
that
which
is
“purely
physical
and
does
not
attempt
to
convey
meaning”
(Irwin
Toy)
–
parking
a
car
for
expressive
purpose
=
included
(b) Provincial
power
! The
provincial
power
over
speech,
while
it
will
not
extend
to
the
regulation
or
(b) Criminal
expression
prohibition
of
political
ideas,
does
authorize
the
regulation
of
speech
on
! Prostitution
Reference
1990:
court
held
that
communication
for
the
purpose
commercial
or
local
grounds
of
prostitution,
which
was
an
offence
under
the
Criminal
Code,
was
protected
! The
tort
of
defamation
for
example
is
provincial,
despite
its
impact
on
speech
expression
under
s
2(b)
(a
majority
upheld
the
law
under
s
1)
.
because
the
redress
of
injury
to
reputation
supplies
a
dominant
tortious
aspect
! Activities
should
not
be
denied
s
2(b)
protection
“solely
because
they
have
to
the
law
and
the
law
of
torts
is
within
provincial
power
(s
92(13)).
been
made
the
subject
of
criminal
offences”
(Keegstra-‐
ie
hate
propaganda
! Advertising
is
within
provincial
jurisdiction
because
it
is
part
of
the
regulation
offences
limits
s
2(b)
but
has
been
saved
under
s
1)
of
business
and
of
consumer
protection
that
is
within
provincial
power
(s
92(13)).
(c) Violence
! Expressive
activity
that
takes
the
form
of
violence
is
not
protected
(Irwin
Toy)
Page
62
of
86
(d) Content
neutrality
(f) Time,
manner
and
place
! The
content
of
a
statement
cannot
deprive
it
of
the
protection
accorded
by
s
! =
the
least
severe
form
of
restriction
on
expression
is
the
regulation
of
the
2(b)
no
matter
how
offensive
it
may
be
(eg
Keegstra=
SCC
held
that
the
time,
manner
and
place
of
expression
promotion
of
hatred
against
Jews
is
protected
by
s
2(b))
! For
example,
a
law
might
prohibit
the
use
of
cartoons
in
advertising
directed
! Deliberate
falsehoods
are
protected
by
s
2(b)
(R
v
Zundel;
R
v
Lucas)
at
children,
or
a
law
might
authorize
a
public
official
to
stipulate
the
time
and
! The
implication
of
this
is
that
s
2(b)
extends
to
much
activity
that
isn’t
worthy
route
of
a
parade.
These
laws
restrict
expression
and
are
therefore
in
of
constitutional
protection
violation
of
s
2(b);
but,
because
they
do
not
regulate
the
content
of
expression,
a
court
would
be
likely
to
uphold
the
laws
under
s
1.
Ways
of
Limiting
Expression
(a) Prior
restraint
Commercial
Expression
! Most
severe
restriction
is
a
“prior
restraint”
on
publication
! =
a
law
that
prohibits
the
publication
of
particular
material
either
absolutely
or
(a) Protection
of
Commercial
expression
under
a
requirement
of
prior
approval
by
a
censor
! Commercial
expression
is
constitutionally
protected
(Ford
v
Quebec)
! Ie.
Censorship
of
films
restrictions
on
the
importation
of
books
and
magazines,
! Commercial
expression,
of
which
the
most
important
example
is
advertising,
is
restrictions
on
access
to
the
courts
etc
expression
designed
to
promote
the
sale
of
goods
and
services,
and
is
protected.
(b) Border
control
! Two
reasons
to
protect:
(1)
expression
literally
falls
within
the
meaning
of
! Prohibited
material
for
example
can
be
stopped
and
confiscated
at
the
border,
‘expression
as
per
SCC”
and
(2)
Difficult
to
distinguish
commercial
expression
with
custom
officials
serving
as
the
censors.
Little
Sisters
Books
–
court
upheld
from
other
types.
obscenity
provision
/
legislation,
but
held
that
the
specific
acts
were
discriminatory.
(b) Advertising
Restrictions
! E.g.
Irwin
Toy:
The
SCC
upheld
a
law
that
prohibited
all
commercial
advertising
(c) Penal
prohibition
directed
at
children
under
13
(the
protection
of
a
particularly
vulnerable
group
! Most
common
restriction
on
speech
is
a
prohibition
coupled
with
a
penal
was
a
sufficiently
important
purpose
to
be
upheld
under
s
1).
Court
was
sanction,
for
example,
the
Criminal
Code
offences
of
perjury
or
counseling
divided
on
whether
it
was
a
reasonable
limit
/
justified
(not
a
complete
ban)
suicide.
To
the
extent
that
the
prospect
of
punishment
deters
the
uttering
of
! E.g.
Rocket
v
Royal
College
of
Dental
Surgeons:
Dentists
were
prohibited
from
the
prohibited
expression,
a
legal
prohibition
operates
in
the
same
way
as
a
advertising
their
services,
and
the
restriction
was
struck
down
as
being
overly
prior
restraint
broad.
(complete
ban).
! E.g.
RJR
Macdonald
v
Canada
AG:
MacDonald
(Tobacco
Company)
disputed
(d) Forced
exception
legislation
involving
ban
on
tobacco
advertising.
All
parties
accepted
that
! Occasionally
a
person
is
forced
by
law
to
make
a
statement.
legislation
breached
s.
2(b).
The
court
held
that
there
was
enough
evidence
to
! For
example,
in
RJR
MacDonald
v
Canada
1995,
a
federal
statute
required
show
a
rational
connection
between
an
advertising
ban
and
the
objective
of
cigarettes
and
other
tobacco
products
to
be
sold
in
packages
that
displayed
reducing
smoking,
but
that
there
is
no
rational
connection
between
the
prescribed
warnings
of
the
health
dangers
of
smoking.
The
manufacturers
general
ban
of
ads,
and
a
decreasing
consumption
of
cigarette
smoke.
But
were
prohibited
from
displaying
any
information
of
their
own
on
the
packages
Court
could
not
accept
that
a
total
ban
on
all
forms
of
advertising,
including
(except
for
the
name
of
the
product).
The
requirement
of
unattributed
purely
informational
advertising,
was
the
least
drastic
means
of
accomplishing
warnings
was
struck
down.
But
New
law,
directed
by
health
Canada,
accepted.
the
objective,
thus
failing
on
the
minimum
impairment
limb.
o Majority
held
that
the
legislation
would
not
have
breached
freedom
(e) Language
requirement
of
expression
had
it
been
targeted
at
things
like
‘recruitment
of
new
! A
Quebec
law
requiring
that
public
signs
and
advertisements
be
in
French
smokers’
or
‘young
people’
or
association
of
smoking
with
things
only
has
been
struck
down
as
a
violation
of
s
2(b)
cool/hip
(delineated
categories,
rather
than
all-‐encompassing
ban).
! Freedom
of
expression
includes
the
freedom
to
express
oneself
in
the
Because
it
was
a
general
ban,
the
majority
held
that
it
overly
language
of
one’s
choice
(Ford
v
Quebec)
impaired
2(b)
freedom.
Page
63
of
86
(c) Commercial
signs
Pornography
! Commercial
signs
are
protected
by
s
2(b)
• Attempts
to
ban
materials
based
on
obscenity
are
based
on
public
morality.
! R
v
Guignard:
A
municipal
by
law
prohibited
advertising
signs
and
billboards
• Pornography,
including
obscenity
is
protected
under
charter
s2b
since
there
except
in
industrial
zones
of
the
municipality.
The
defendant
was
prosecuted
are
no
content
based
restrictions
on
s2b.
under
the
by-‐law
for
erecting
a
sign
on
his
property
complaining
about
the
• R
v
Butler:
charged
with
operating
sex
obscenity
shop
and
possessing
under
delays
of
his
insurance
company
in
settling
a
claim.
Because
the
sign
named
Criminal
Code
definition
of
“obscenity”.
Prohibition
was
caught
under
s1:
the
insurance
company,
It
fell
within
the
by-‐law’s
definition
of
an
advertising
“undue
exploitation
of
sex
materials
which
(1)
portray
explicit
sex
w/
violence,
sign
(despite
its
negative
message)
The
SCC
held
that
this
infringed
G’s
right
to
(2)
explicit
sex
without
violence
but
in
degrading
dehumiliating
way
–
put
up
a
sign
on
his
property,
and
the
limit
could
not
be
justified
under
s
1
(the
perceived
by
public
opinion
to
be
immoral.
Court
decried
the
law
as
arbitrary
and
disproportionate
to
any
benefit
that
it
secures
for
the
municipality)
Access
to
Public
Property
! First,
because
the
Charter
does
not
apply
to
private
action,
s
2(b)
confers
no
Picketing
right
to
use
private
property
as
a
forum
of
expression.
With
respect
to
PUBLIC
! =
the
activity
of
members
of
trade
union
on
strike,
who
will
assemble
outside
property,
since
the
Charter
applies
to
governmental
action,
s
2(b)
is
potentially
a
workplace,
often
carrying
signs
applicable
! There
is
a
communicative
element
to
a
picket
line
and
therefore
it
constitutes
! General
rule
(and
if
the
circumstances
are
appropriate),
is
that
the
right
to
“expression”
within
s
2(b)
(Dolphin
Delivery)
public
property
is
protected
for
expression
purposes
(Committee
for
the
Cth
of
! Picketing
is
protected
by
s
2(b)
Canada
v
Canada;
Ramsden
v
Peterborough)
Hate
Propaganda
! The
MONTREAL
v
2952-‐1366
QUEBEC
CASE
is
the
authority
for
the
! =
material
that
promotes
hatred
against
minority
groups
applicability/scope
of
the
right:
A
strip
club
in
Mtl
set
up
a
loudspeaker
at
its
R
v
Keegstra
1990:
street
entrance
which
it
used
to
broadcast
music
and
commentary
that
o Court
rejected
the
notion
that
there
any
content
based
restrictions
on
accompanied
the
show
within.
The
club
was
charged
under
a
by
law
that
the
s
2(b)
right.
Section
2(b)
covered
all
messages,
“however
prohibited
noise
produced
by
sound
equipment
that
could
be
heard
outside
a
unpopular,
distasteful
or
contrary
to
the
mainstream.”
The
court
building.
The
broadcast
conveyed
a
message
about
the
show
that
was
going
on
also
rejected
the
notion
that
s
2(b)
could
be
narrowed
by
reference
to
in
the
club,
and
so
that
was
an
expression.
Although
the
message
originated
in
the
equality
rights
of
s
15
(or
any
other
rights).
private
premises
where
s
2(b)
would
not
apply,
it
was
the
transmission
onto
o It
followed
that
Mr
K,
a
school
teacher
who
had
been
found
guilty
of
public
property
(the
street),
that
was
prohibited
by
the
by
law.
The
by
law
was
making
anti-‐semitic
statements
to
his
students,
has
been
engaged
in
a
challenged.
constitutionally
protected
activity.
But
the
court
went
on
to
uphold
! In
determining
whether
the
expression
was
protected,
the
Court
formulated
a
the
criminal
offence
under
s
1.
test
for
the
application
of
s
2(b)
on
public
property:
“ask....whether
the
! Purpose/Objective
of
Hate
Propaganda
law
is
to
promote
equality
and
to
public
place
is
one
where
one
would
expect
that
expression
in
that
place
lessen
hatred
against
these
groups
(S15).
Clear
to
see
how
this
law
promotes…
does
not
conflict
with
the
purposes
which
s
2(b)
is
intended
to
serve,
namely:
(1)
democratic
discourse
Defamation
(2)
truth
finding
and
! The
tort
of
defamation
provides
a
civil
remedy
for
a
person
whose
reputation
(3)
self
fulfilment”
has
been
damaged
by
false
statements
made
by
the
defendants
! In
this
case,
the
streets
“are
clearly
areas
of
public,
as
opposed
to
private,
! In
Hill
v
Church
of
Scientology,
the
SCC
held
that
false
and
injurious
concourse,
where
expression
of
many
varieties
has
long
been
accepted”.
statements
are
not
deserving
of
much
protection
and
are
outside
the
core
Therefore
the
club’s
broadcast
into
the
street
was
protected
by
s
2(b).
the
values
protected
by
s
2(b)
majority
went
on
to
hold
that
the
by-‐law
was
justified
as
a
reasonable
limit
under
s
1,
despite
its
lack
of
standards
with
respect
to
the
level
or
effects
of
the
prohibited
noise.
Page
64
of
86
Access
to
Courts
Issue:
whether
the
provisions
of
the
by
law
prohibiting
noise
on
street
were
1. Fair
trial
concerns
constitutionally
valid.
! “freedom
of
express”
is
explicitly
guaranteed
in
s
2(b)
Principle:
! The
freedom
of
the
press
occasionally
comes
into
conflict
with
the
right
of
! A.
Does
Article
9(1)
of
the
by-‐law
infringe
s
2(b)
of
the
Charter?
persons
accused
of
crime
to
receive
a
fair
trial.
For
example
pre
trial
publicity
o 1.
Did
the
noise
have
expressive
content
that
would
bring
it
within
s
may
bias
potential
jurors
or
judge
and
may
damage
the
reputation
of
someone
2(b)
protection.
Yes
subsequently
exonerated
of
the
charge
and
extensive
publicity
may
impair
o 2.
If
so,
does
method
or
location
of
this
expression
remove
that
their
capacity
or
public
perception
for
neutral
adjudication
protection?
! Test
for
whether
the
expression
was
protected
for
the
2. Restrictions
on
reporting
application
of
s
2(b)
on
public
property:
! Freedom
of
process
includes
the
freedom
to
publish
reports
of
proceedings
in
• “ask....whether
the
public
place
is
one
where
one
court.
But
this
isn’t
an
unqualified
right
(e.g.
there
can
be
restrictions
where
would
expect
that
expression
in
that
place
does
not
the
purpose
of
the
restriction
is
to
protect
the
identity
of
complainants
in
conflict
with
the
purposes
which
s
2(b)
is
intended
sexual
assault
cases:
Canadian
Newspapers
Co
v
Canada
to
serve,
namely:
! The
relevant
test/standard
to
be
applied
in
these
types
of
cases
is
that
court
(1)
democratic
discourse
proceedings
are
to
be
open
UNLESS
disclosure
would
subvert
the
ends
of
(2)
truth
finding
and
justice
or
unduly
impair
its
proper
administration
(Toronto
Star
Newspapers)
(3)
self
fulfilment”
! took
into
consideration
3. Restriction
on
access
! (a)
The
historical
or
actual
function
of
the
place;
! Freedom
of
the
press
also
includes
the
right
to
be
present
in
court
! (b)
Whether
other
aspects
of
the
place
suggest
(Edmonton
Journal
v
Alta)
that
expression
within
it
would
undermine
the
! In
Re
Vancouver
Sun,
the
SCC
emphasized
that
the
“open
court
principle”
values
underlying
free
expression
[E.g.
Is
the
was
guaranteed
by
s
2(b),
and
it
could
be
limited
by
s
1
only
if
the
standards
space
in
fact
essentially
private,
despite
being
government-‐owned,
or
is
it
public?
of
justification
in
Dagenais
and
Mentuck
were
satisfied.
Although
those
• 3.If
the
expression
is
protected
by
s.
2(b)
does
the
bylaw
infringe
that
cases
concerned
publication
bans
the
same
principles
applied
to
orders
protection,
either
in
purpose
or
effect
limiting
access
to
court
proceedings.
Those
principles
were:
(a)
that
the
o Yes.
City’s
ban
on
noise
limits
free
expression
order
is
“necessary
in
order
to
prevent
a
serious
risk
to
the
proper
! B.
is
it
justified
under
s.
1
administration
of
justice
because
reasonable
alternative
measures
will
not
o Pressing
and
substantial?
YES—combating
noise
pollution
=serious
prevent
the
risk”;
and
(b)
that
“the
salutary
effects
of
[the
order]
outweigh
o Proportionate—
the
deleterious
effects
on
the
rights
and
interests
of
the
parties
and
the
! There
is
a
rational
connection
b/c
noise
bothers
people
public”
! It
is
a
minimal
impairment
–
no
other
way
to
deal
with
it
! Proportionate
effect—by
law
is
valid.
REQUIRED
CASE
FOR
FREEDOM
OF
EXPRESSION
Held:
the
streets
“are
clearly
areas
of
public.
Therefore
the
club’s
broadcast
into
the
street
was
protected
by
s
2(b).
the
majority
went
on
to
hold
that
the
MONTRÉAL
(CITY)
v.
2952-‐1366
QUÉBEC
INC
by-‐law
was
justified
as
a
reasonable
limit
under
s
Facts:
! A
strip
club
in
Mtl
set
up
a
loudspeaker
at
its
street
entrance
which
it
used
to
broadcast
music
and
commentary
that
accompanied
the
show
within.
The
club
was
charged
under
a
by
law
that
prohibited
noise
produced
by
sound
equipment
that
could
be
heard
outside
a
building.
Page
65
of
86
[9]
Life,
Liberty
and
Security
of
the
Person-‐
CONSTITUTION
A,
1982,
S.
7
(b) Immigrants
! “everyone”
in
s
7
includes
illegal
immigrants
to
Canada
Section
7
of
the
Charter
! Singh
v
Minister
of
Employment
and
Immigration
1985:
s
7
could
be
asserted
by
“every
human
being
who
is
physically
present
in
Canada
and
virtue
of
such
! ‘Everyone
has
the
right
to
life,
liberty
and
security
of
the
person
and
the
right
presence
amenable
to
Canadian
law”,
Wilson
J
meant
that
any
illegal
not
to
be
deprived
thereof
except
in
accordance
with
the
principles
of
immigrant
who
claimed
to
be
a
refugee
was
entitled
to
a
hearing
before
an
fundamental
justice.
official
or
tribunal
with
authority
to
determine
the
issue
! Cases
generally
assume
that
there
is
no
breach
of
s
7
unless
there
has
been
a
failure
to
comply
with
the
principles
of
fundamental
justice
(c) Foetus
! Section
7’s
protection
is
limited
to
“life,
liberty
and
security
of
the
person”,
a
! “Everyone’
does
not
include
a
foetus
and
so
is
not
entitled
to
a
right
to
life
phrase
which
does
not
include
property
(as
in
s
1(a)
of
the
Canadian
Bill
of
! SCC
has
used
s
7
to
strike
down
restrictions
on
abortion,
the
reasoning
being
Rights)
and
does
not
include
a
determination
of
rights
and
obligations
that
the
restriction
deprived
the
mother
of
her
right
to
liberty
or
security
of
respecting
economic
interests
(as
in
s
2(e)
of
Canadian
Bill
of
Rights)
the
person
o Affords
no
guarantee
of
compensation
or
even
of
a
fair
procedure
for
the
taking
of
property
by
government
o Affords
no
guarantee
of
fair
treatment
by
courts,
tribunals
or
officials
with
Burden
of
s.
7
power
over
the
purely
economic
interests
of
individuals
or
corporations
! S
7
like
all
other
Charter
rights,
applies
only
to
“governmental
action:
as
! Canadian
Bill
of
Rights
(which
applies
only
to
federal
laws)
remains
in
force,
and
defined
in
s
32
of
Charter
ss
1(a)
and
2(e)
are
of
continuing
importance
because
their
coverage
is
broader
than
s
7
What
is
Covered?
DEFINITIONS
Distribution
of
Powers
over
Legal
Rights
(a) LIFE
! s
7
is
the
first
of
8
section
(ss
7
to
14)
of
the
Charter
that
are
grouped
under
! So
far
as
“life’
is
concerned,
the
section
has
little
work
to
do,
because
the
heading
“Legal
Rights”
governmental
action
rarely
causes
death
! ‘legal
rights’
doesn’t
have
a
precise
meaning
but
includes
rights
of
person
! But
excessive
waiting
times
for
treatment
in
the
public
health
care
system
in
within
the
criminal
justice
system,
limiting
the
powers
of
the
state
with
respect
Quebec
increased
the
risk
of
death
and
were
a
violation
of
the
right
to
life
(as
to
investigation,
search,
seizure,
arrest,
detention,
trial
and
punishment.
But
well
as
security
of
the
person)
(Chaoulli
v
Quebec)
section
7
in
particular
spills
over
into
civil
justice
as
well.
! Does
not
include
a
foetus
! The
distribution
of
powers
between
the
federal
Parliament
and
the
provincial
Legislatures
over
the
matters
loosely
encompassed
by
the
vague
term
“legal
(b) LIBERTY
rights”
depends
upon
the
characterization
of
each
law
(i)
Physical
liberty
• “liberty”
includes
freedom
of
physical
restraint
(so
any
law
that
imposes
the
Who
is
Covered?
penalty
of
imprisonment,
whether
the
sentence
is
mandatory
or
discretionary,
is
by
virtue
of
that
penalty
of
a
deprivation
of
liberty,
and
must
conform
to
the
(a) Corporations
principles
of
fundamental
justice)
! Normally
“everyone”
is
apt
to
include
a
corporation
as
well
as
an
individual
! Transfer
of
a
prisoner
to
a
higher
level
prison
deprives
liberty
(May
v
BUT
SCC
held
in
the
context
of
s
7
“everyone”
does
not
include
a
corporation
Ferndale)
! Corporation
is
incapable
of
possessing
“life,
liberty
or
security
of
the
person”
! Although
“liberty”
is
generally
taken
to
mean
“physical
liberty”,
the
majority
in
because
these
are
attributes
of
natural
persons.
Blencoe
said
liberty
also
deals
with
a
person’s
ability
to
make
fundamental
! But
corporations
can
use
s
7
to
invalidate
criminal
provisions
(when
a
personal
choices
corporation
is
a
defendant
to
a
prosecution,
the
corporation
is
entitled
to
o Imprisonment
defend
the
charge
on
the
basis
that
the
law
is
a
nullity
o Fingerprinting
(R
v
Beare)
o Give
oral
testimony
o Not
to
loiter
in
or
near
schools,
playgrounds,
public
parks
etc
Page
66
of
86
! Not
a
deprivation:
1.
Words
“fundamental
justice”
are
literally
broader
in
scope
than
other
o A
law
that
imposes
only
a
fine
is
not
a
deprivation
and
need
not
formulations
that
could
have
been
used,
such
as
“natural
justice”
conform
to
the
principles
of
fundamental
justice
2.
Expansion
of
the
concept
of
‘fundamental
justice’
has
the
effect
of
o Suspension
of
driver’s
license
(Buhlers
v
B.C.)
expanding
the
protection
of
life
liberty
and
security
of
the
person
(ii)
Economic
liberty
3.
S
7
is
a
kind
of
general
residuary
clause
for
all
of
the
“legal
rights”
of
the
! Not
included
Charter
(controversial
issue)
(iii)
Political
liberty
! “liberty”
does
not
include
freedom
of
conscience
and
religion,
freedom
(b) Definition
of
fundamental
justice
of
expression,
freedom
of
assembly,
freedom
of
association
and
the
! In
BC
Motor
Vehicle,
it
was
said
that
“the
principles
of
fundamental
justice
right
to
vote
and
be
a
candidate
for
election,
or
the
right
to
travel.
are
said
to
be
found
in
the
basic
tenets
of
the
legal
system”
These
rights
are
all
guaranteed
elsewhere
in
the
Charter
of
Rights
and
! This
is
a
vague
definition,
but
later
decisions
haven’t
done
much
better.
should
be
excluded
from
s
7
! Later
decisions
indicate
that
there
is
little
agreement
as
to
what
the
basic
tenets
of
our
legal
system
are
(c) SECURITY
OF
THE
PERSON
! In
fact,
some
cases
do
not
even
rely
on
the
“basic
tenets
of
our
legal
• Abortion
law
in
Criminal
Code
which
restricted
abortions
and
which
resulted
in
system”
definition
(Cunningham-‐,
where
it
was
said
in
relation
to
delays
in
treatment
and
which
ultimately
increased
risk
to
women’s
health,
fundamental
justice:
“The
question
is
whether,
from
a
substantive
point
of
was
held
to
deprive
women
of
security
of
person
(Morgentaler
No
2)
view,
the
change
in
the
law
strikes
the
right
balance
between
the
• Law
which
forbid
the
purchase
of
private
health
insurance
was
said
to
infringe
accused’s
interests
and
the
interests
of
society”
security
of
person,
because
it
ultimately
led
to
delays
in
treatment,
which
the
effect
of
putting
lives
at
risk
(Chaoulli
v
Quebec)
[Note:
majority
found
this
! The
variety
of
outcomes
re:
scope
of
principles
of
fundamental
justice
can
breached
Quebec
charter,
which
doesn’t
use
the
phrase
“fundamental
justice”.
be
accounted
for
only
by
the
enormous
discretion
that
the
SCC
has
So
it
will
take
another
case
to
determine
whether
they
are
breach
of
the
assumed
for
itself
under
the
rubric
of
fundamental
justice
Canadian
Charter]
• Includes
control
over
one’s
body
(Rodriguez
–
assisted
suicide
case
!
In
R
v
Malmo-‐Levine,
the
Court
postulated
3
requirements
for
a
rule
to
• Protects
psychological
integrity
(New
Brunswick
v
G.(J.))
and
protects
against
qualify
as
a
“basic
tenant
of
the
legal
system
and
therefore
a
principle
of
state
induced
psychological
stress,
such
as
where
there
has
been
excessive
fundamental
justice”:
delay
caused
by
administrative
tribunals
(Blencoe)
(1)
The
rule
must
be
a
legal
principle
(2)
There
must
be
significant
societal
consensus
that
it
is
fundamental
to
FUNDEMENTAL
JUSTICE:
the
way
in
which
the
legal
system
ought
to
fairly
operate
(3)
The
rule
must
be
capable
of
being
identified
with
sufficient
precision
(a) Procedure
and
substance
to
yield
to
a
manageable
standard
! The
term
“fundamental
justice”
covers
substantive
as
well
as
procedural
justice
(BC
Motor
Vehicle
Reference)
! E.g.,
in
Canadian
Foundation
for
Children,
it
was
argued
that
a
principle
of
! This
is
unlike
how
the
term
was
used
in
the
Canadian
Bill
of
Rights.
There,
it
fundamental
justice
was
“the
best
interests
of
the
child”.
The
SCC
upheld
the
3
was
used
as
an
equivalent
of
“natural
justice”,
which
are
rules
of
procedure
requirements
above,
and
said
that
although
“best
interests”
is
a
legal
principle,
(e.g.
requirement
of
a
hearing,
unbiased
adjudication).
In
that
context,
the
it
was
not
fundamental
to
the
legal
system
courts
would
not
be
entitled
to
review
the
substantive
justice
of
the
deprivation
Principles
of
Fundamental
Justice
! Further,
the
legislative
history
of
s
7
makes
clear
that
the
framers
thought
! No
imprisonment
without
fault;
no
overbreadth,
no
disproportionality;
no
that
“fundamental
justice”
meant
natural
justice
arbitrariness;
no
vagueness
! Lamer
J
in
BC
Motor
Vehicle
Reference
gave
3
reasons
for
extending
fundamental
justice
beyond
procedure:
Page
67
of
86
4
WAYS
OF
DEMONSTRATING
THAT
PRINCIPLES
OF
FUNDAMENTAL
JUSTICE
HAVE
! Prostitution
Reference:
it
was
argued
(among
other
things)
that
the
offence
of
BEEN
VIOLATED:
communicating
for
the
purpose
of
engaging
in
prostitution
was
in
breach
of
s
7
because
the
offence
was
unconstitutionally
vague
1.
Overbroad
Laws
! SCC
established
doctrine
of
“overbreadth”
in
R
v
Heywood,
which
applies
to
a
(b)
Standard
of
Precision
law
that
is
broader
than
necessary
to
accomplish
its
purpose
! What
is
the
“constitutional
standard”
of
precision
that
a
law
must
meet
in
order
! Overbreadth
is
a
breach
of
the
principles
of
fundamental
justice
and
therefore
a
to
avoid
the
vice
of
vagueness?
basis
for
a
finding
of
unconstitutionality
in
a
law
that
affects
life,
liberty
or
security
of
the
person
! Nova
Scotia
Pharmaceutical
case-‐
a
number
of
tests
were
suggested:
! If
you
conclude
that
there
is
overbreadth
and,
therefore,
a
breach
of
principles
o Whether
the
law
is
“intelligible”
of
fundamental
justice,
then
the
law
will
almost
necessarily
fail
the
s
1
analysis
o Whether
the
law
sufficiently
delineates
“an
area
of
risk”
as
well,
because
it
will
fail
the
minimum
impairment
test
o Whether
the
law
provides
“an
adequate
basis
for
legal
debate”
(this
! There
are
practical
and
theoretical
difficulties
with
this
doctrine
though
(e.g.
a
last
one
is
the
least
useful
because
almost
any
provision,
no
matter
judge
who
disapproves
of
a
law
will
always
be
able
to
find
that
it
is
overbroad)
how
vague,
could
provide
a
basis
for
legal
debate).
HOWEVER,
it
was
! In
Heywood,
law
was
struck
down
b/c
direct
restraint
on
liberty
of
those
whom
the
legal
debate
test
that
was
evidently
preferred
and
employed
in
it
applied
because
their
access
to
schoolyards,
playgrounds,
parks
and
bathing
subsequent
cases
areas
was
restricted.
! Or
more
simply
and
perhaps
the
appropriate
test
–
ask
whether
the
law
upholds
the
2
values
which
the
rule
against
vagueness
is
supposed
to
protect:
(1)
is
2.
Disproportionate
Laws
there
fair
notice
to
citizens?;
(2)
Is
there
a
limitation
of
enforcement
discretion?
! SCC
established
doctrine
of
“disproportionality”
in
R
v
Malmo-‐Levine
(2003)
which
is
a
breach
of
the
principles
of
fundamental
justice
and
therefore
a
basis
Other
Things
to
Consider
Re:
section
7
for
a
finding
of
unconstitutionality
in
a
law
that
affects
life,
liberty
and
security
of
the
person
(1)
Absolute
and
Strict
liability
! The
doctrine
requires
the
court
to
determine:
(1)
whether
a
law
purses
a
(a)
Absolute
liability
offences
“legitimate
state
interest”;
and
if
It
does
(2)
whether
the
law
is
grossly
! (offence
consists
simply
of
doing
the
prohibited
act;
no
requirement
of
disproportionate
to
the
state
interest
fault,
either
mens
rea
or
negligence;
defendant
could
be
convicted
even
if
he
had
no
intention
of
breaking
the
law
and
also
exercised
reasonable
care
3.
Arbitrary
Laws
to
avoid
doing
so)
! A
law
is
arbitrary
if
it
“lacks
a
real
connection
on
the
facts
to
the
purpose
of
the
! B.C
Motor
Vehicle
Reference
1985:
SCC
held
that
absolute
liability
was
a
law
is
said
to
serve”
(Chaoulli
v
Quebec,
per
McLachlin
CJ)
denial
of
“the
principles
of
fundamental
justice”.
Since
the
offence
carried
a
! Arbitrary
laws
were
offensive
to
fundamental
justice
short
term
of
imprisonment,
a
conviction
would
mean
a
deprivation
of
‘liberty”.
The
offence
was
therefore
declared
to
be
in
violation
of
s
7
and
of
4.
Vague
Laws
no
force
or
effect.
(a)
void
for
vagueness
! An
offence
of
absolute
liability
that
carries
the
penalty
of
imprisonment
is
! A
vague
law
violates
the
principles
of
fundamental
justice
which
causes
a
an
infringement
of
s
7
of
the
Charter.
However
it
does
NOT
follow
that
the
breach
of
s
7
if
the
law
is
a
deprivation
of
life,
liberty
or
security
of
the
person
offence
must
be
always
be
struck
down.
–
there
are
other
remedial
options
! A
vague
law
offends
2
values
that
are
fundamental
to
the
legal
system:
(1)
the
for
the
court:
law
does
not
provide
fair
notice
to
persons
of
what
is
prohibited,
which
makes
o 1.
Interpret
the
statute
creating
the
offence
as
implicitly
allowing
a
it
difficult
for
them
to
comply
with
the
law.
(2)
the
law
does
not
provide
clear
defence
of
due
diligence,
in
which
case
the
offence
becomes
one
of
standards
for
those
entrusted
with
enforcement,
which
may
lead
to
arbitrary
strict
liability
(this
is
what
saved
the
offence
in
Levis
v
Tetreault)
enforcement
o 2.
Use
the
power
of
severance
(or
reading
in)
to
covert
the
offence
into
one
of
mens
rea
(R
v
Hess)
Page
68
of
86
o 3.
Use
the
power
of
severance
to
eliminate
the
penalty
of
the
doctrine
of
substantive
fundamental
justice
and
its
dependence
on
the
imprisonment,
in
which
case
the
offence
(if
it
is
a
regulatory
one)
can
moral
attitudes
of
the
judges
survive
as
one
of
absolute
liability
(R
v
Pontes)
(3)
Unforeseen
consequences
(b)
Strict
liability
offences
! (offence
consists
also
of
simply
doing
the
prohibited
act;
however,
it
is
a
! There
are
Criminal
Code
offences
in
which
the
consequences
of
an
unlawful
act
defence
if
the
defendant
proves
the
civil
standard
of
the
balance
of
dictate
the
severity
of
the
punishment
for
which
the
accused
is
liable
probabilities
that
he
or
she
exercised
reasonable
care
(due
diligence)
to
! Is
it
a
breach
of
fundamental
justice
to
make
an
unintended
and
unforeseen
avoid
committing
the
offence;
in
effect,
there
is
no
fault
requirement
of
consequence
(bodily
harm
or
death)
the
basis
of
a
more
serious
charge?
negligence,
because
the
accused
is
liable
only
if
he
cannot
prove
the
exercise
of
reasonable
care)
! SCC
held
that
where
an
accused
is
charged
with
offences
of
murder
or
! The
law
related
to
strict
liability
offences
was
apparently
settled
in
in
attempted
murder
then
it
is
a
requirement
of
fundamental
justice
that
the
Wholesale
Travel
–
in
the
case
of
a
regulatory
offence
or
a
public
welfare
accused
must
have
actually
intended
or
foreseen
the
death
of
the
victim.
offence,
fundamental
justice
does
not
require
that
mens
rea
be
an
element
However,
the
court
indicated
that
this
requirement
of
subjective
foresight
of
of
the
offence.
Fundamental
justice
is
satisfied
if
there
is
a
defence
of
the
consequences
of
an
unlawful
act
applied
only
to
“very
few”
offences,
reasonable
care
(du
diligence),
and
the
burden
of
satisfying
this
defence
which
were
to
be
identified
by
reference
to
“social
stigma”
and
the
penalty
may
be
cast
on
the
defendant
attaching
to
the
offence
(2)
Murder
! R
v
DeSousa:
the
accused
while
in
a
fight,
threw
a
glass
bottle
that
shattered
against
a
wall
causing
fragments
of
glass
to
injure
an
innocent
bystander.
The
• Old
felony
murder
–
if
caught
in
dangerous
act
and
someone
dies
=
murder
accused
neither
intended
nor
foresaw
this
injury.
However,
the
injury
was
used
! R
v
Vaillancourt
1987:
the
accused
was
charged
with
murder
as
the
result
of
a
as
the
basis
of
a
Criminal
Code
charge
of
unlawfully
causing
bodily
harm
(
poolroom
robbery
in
which
the
accused’s
accomplice
shot
and
killed
a
customer
carried
a
penalty
of
imprisonment
of
10
year
so
that
s
7
of
the
Charter
was
of
the
poolroom.
The
accused
knew
that
his
accomplice
was
carrying
a
gun,
and
applicable).
The
accused
was
convicted
of
unlawfully
causing
bodily
harm
of
course
he
intended
to
rob
the
poolroom.
despite
his
lack
of
intention
or
foresight
with
respect
to
the
bodily
harm
o SCC
held
that
the
felony-‐
murder
rule
(if
an
accused
caused
a
death
in
because
there
was
no
constitutional
requirement
that
intention
either
on
an
the
course
of
committing
certain
serious
offences,
including
robbery,
objective
or
subjective
basis
extend
to
the
consequences
of
unlawful
acts
in
while
armed
with
a
weapon,
then
the
accused
was
guilty
of
murder)
general.
(no
constitutional
requirement
to
intend
the
consequences
of
your
was
a
violation
of
fundamental
justice
under
s
7
of
the
Charter.
The
action,
just
need
intent
of
your
actual
action).
fact
that
an
accused
must
have
mens
rea
(a
guilty
mind)
with
respect
to
the
underlying
offence,
in
this
case,
the
robbery,
was
not
sufficient
(4)
Involuntary
Acts
to
satisfy
s
7.
o Before
an
accused
could
be
found
guilty
of
murder,
s
7
required
that
i. Automatism
there
be
mens
rea
with
respect
to
the
death.
Therefore,
the
felony-‐
! The
requirement
of
voluntariness
is
a
basic
tenet
of
the
legal
system
that
is
murder
rule
was
unconstitutional.
protected
by
s
7
(ie
it
is
a
principle
of
fundamental
justice
criminal
offences
be
committed
voluntarily),
at
least
for
offences
carrying
the
penalty
of
! in
R
v
Martineau
1990
the
SCC
by
majority
held
that
it
was
the
higher
level
of
imprisonment.
mens
rea
–
subjective
foreseeability
–
that
was
required
by
s
7
(L’Heureux-‐ ! This
means
that
the
law
respecting
automatism
now
has
constitutional
Dube
J
(dissented)
pointed
out
that
subjective
foresight
of
death
has
never
status,
and
any
attempt
by
Parliament
to
abolish
the
defence
or
restrict
its
been
the
exclusive
standard
for
murder
in
Canada
or
in
other
countries
that
availability
would
be
unconstitutional,
unless
the
limiting
law
could
be
inherited
English
principles
of
criminal
law.
how
then
did
it
suddenly
become
a
justified
under
s
1.
basic
tenet
of
the
legal
system?
The
question
points
to
the
indeterminacy
of
! R
v
Parks
(sleepwalking
murder
–
acquitted)
Page
69
of
86
ii. Duress
! The
SCC
had
to
review
a
much
more
radical
departure
from
the
traditional
! The
Criminal
Code
by
s
17
makes
duress
an
excuse
for
the
commission
of
an
trial
format
in
offence:
an
offence
committed
“under
compulsion:
is
excused
from
criminal
liability.
However
s
17
stipulates
that
the
compulsion
must
take
the
form
of
CHARKAOUI
v.
CANADA
(2007):
“threats
of
immediate
death
or
bodily
harm
from
a
person
who
is
present
when
the
offence
is
committed”
ISSUE:
Challenge
to
the
validity
of
the
security
certificate
provisions
of
! R
v
Ruzic
2001:
held
it
would
be
a
breach
of
the
principles
of
fundamental
the
Immigration
and
Refugee
Protection
Act
justice
to
convict
a
person
of
a
crime
when
the
person
had
not
acted
FACTS:
voluntarily.
The
immediacy
and
presence
requirements
of
s
17
were
struck
o The
Act
empowered
2
ministers
to
issue
a
certificate
declaring
a
down
as
constitutional
because
they
had
the
potential
of
convicting
a
person
non-‐citizen
named
in
the
certificate
threat
to
national
security
who
had
not
acted
voluntarily.
o The
certificate
authorized
the
arrest
and
detention
of
the
named
person.
Right
to
Silence:
=
principle
of
fundamental
justice
in
s
7
(R
v
Hebert)
o The
certificate
was
to
be
automatically
referred
to
a
judge
of
the
Federal
Court
for
review
on
the
standard
of
reasonableness
and
if
! A
voluntary
statement
to
another
prisoner
or
undercover
officer
would
not
the
judge
found
the
certificate
to
be
reasonable,
the
certificate
offend
the
right
if
the
police
officer
did
not
actively
elicit
the
statement
became
a
removal
order,
authorizing
the
deportation
of
the
! In
Hebert
the
accused’s
statement
had
been
elicited
by
the
questioning
of
named
person
the
undercover
police
officer.
In
effect,
the
police
had
used
a
trick
to
subvert
the
accused’s
election
not
to
make
a
statement
to
the
police.
This
o Problem
with
the
process:
at
no
stage
did
the
named
person
was
a
breach
of
s
7.
The
statement
was
excluded.
necessarily
know
the
nature
of
the
case
against
him
! R
v
Broyles:
accused
made
a
statement
while
in
custody
to
a
friend
who
o There
was
no
hearing
on
the
original
issue
of
the
certificate
visited
him
in
jail.
Unknown
to
the
accused,
the
friend
had
been
recruited
o On
review
by
the
Federal
Court
judge
the
named
person
was
as
a
police
informer
and
was
recording
the
accused’s
statement.
SCC
held
entitled
to
be
heard
but
the
Act
required
the
judge
to
“ensure
the
that
that
the
informer
was
acting
as
an
agent
of
the
state,
confidentiality
of
the
information
on
which
the
certificate
is
! At
trial,
s
7
contains
a
residue
of
the
rights
to
silence
and
supplements
s
based….if,
in
the
opinion
of
the
judge,
its
disclosure
would
be
11(c)
and
13
of
the
Charter
which
explicitly
guarantee
this
right
injurious
to
national
security
or
to
the
safety
of
any
person”
o This
obligation
meant
that
the
judge
would
often
be
unable
to
Fair
Trial
disclose
to
the
named
person
the
information
upon
which
the
certificate
had
been
based
(A)
the
right
to
a
fair
trial
! Principles
of
fundamental
justice
require
that
the
accused
of
a
crime
SCC
held:
receive
a
fair
trial
o The
issue
of
security
certificate
was
a
deprivation
of
liberty
under
! s
7
overlaps
with
s
11(d)
which
also
guarantees
to
a
person
charged
s
7
and
that
the
review
process
did
not
satisfy
the
principles
of
with
an
offence
“a
fair
and
public
hearing
by
an
independent
and
fundamental
justice,
because
it
did
not
provide
the
named
person
impartial
tribunal”
with
a
fair
hearing
! s
7
is
however
wider
than
s
11(d)
because
s
7
also
applies
to
civil
and
o McLachlin
CJ
acknowledged
that
“the
procedures
required
to
meet
administrative
proceedings
where
they
affect
life,
liberty,
or
security
of
the
demands
of
fundamental
justice
depend
on
the
context”,
and
the
person
she
also
acknowledged
that
“national
security
considerations
can
! Extradition
process
of
a
fugitive
must
be
conducted
in
accordance
with
limit
the
extent
of
disclosure
of
information
to
the
affected
principles
of
fundamental
justice
because
there
is
an
obvious
denial
of
person”,
but
she
held
that
“the
secrecy
required
by
the
scheme
the
liberty
of
the
accused
denies
the
named
person
the
opportunity
to
know
the
case
put
!
against
him
or
her,
and
hence
to
challenge
the
government’s
case.
This
was
a
breach
of
the
principles
of
fundamental
justice
Page
70
of
86
! Could
the
law
be
justified
as
a
reasonable
limit
on
s
7
(s
1
Oakes
REQUIRED
CASES
FOR
LIFE,
LIBERTY
AND
SECURITY
OF
THE
PERSON:
test)???
o Protection
of
secret
information
respecting
national
security
and
intelligence
sources
was
a
sufficiently
important
objective
and
CHARKAOUI v CANADA (minister of citizenship and immigration)
withholding
such
info
was
rationally
connected
to
the
objective
o BUT
the
law
failed
to
limit
the
right
by
the
least
drastic
means,
Facts:
C
applied
for
a
stay
of
proceedings
relating
to
the
security
certificate
issued
because
Parliament
could
have
adopted
procedures
to
protect
against
him
under
s
77
of
the
Immigration
and
Refugee
Protection
Act.
He
alleged
secrecy
that
were
less
intrusive
of
individual
rights.
that
the
government
breached
a
duty
to
disclose
info
in
its
possession
in
a
timely
o For
example
only
know
the
named
person
is
likely
to
know
way.
The
Act
empowered
2
ministers
to
issue
a
certificate
declaring
a
non-‐citizen
whether
personal
info
is
true
or
false
and
what
evidence
is
named
in
the
certificate
to
be
a
threat
to
national
security.
The
certificate
authorized
available
to
disprove
false
info.
A
special-‐
counsel
system
would
the
arrest
and
detention
of
the
named
person
The
certificate
and
the
detention
are
compensate
to
some
extent
for
the
lack
of
informed
participation
both
subject
to
review
by
a
judge,
in
a
process
that
may
deprive
the
person
named
by
the
named
person.
in
the
certificate
of
some
or
all
of
the
information
on
the
basis
of
which
the
o McLachlin
CJ
although
attracted
by
the
idea
,
did
not
offer
it
as
the
certificate
was
issued
or
the
detention
ordered.
The
certificate
became
a
removal
only
answer,
making
clear
that
“precisely
what
is
to
be
done
is
a
order,
authorizing
the
deportation
of
the
named
person.
matter
for
Parliament
to
decide.”
But
without
some
effort
to
Issue:
challenge
to
the
validity
of
the
security
certificate
provisions
of
the
compensate
for
the
non-‐disclosure
of
secret
info,
the
security
–
Immigration
and
Refugee
Protection
Act,
and
whether
they
violated
his
s.7
certificate
process
could
NOT
be
justified
under
s
1
rights.
At
no
stage
did
the
named
person
necessarily
know
the
nature
of
the
case
against
him
(b)
Full
answer
and
defence
SCC
held:
the
issue
of
security
certificate
was
a
deprivation
of
liberty
under
s
7
and
! s
7
(in
addition
to
the
main
section
of
11(d))
guarantees
the
accused
the
that
the
review
process
did
not
satisfy
the
principles
of
fundamental
justice,
because
right
to
present
a
full
answer
and
defence
(R
v
Seaboyer)
it
did
not
provide
the
named
person
with
a
fair
hearing
Analysis:
(c)
Pre-‐trial
disclosure
by
the
Crown
• McLachlin
CJ:
must
look
at
context.
National
security
can
limit
! Pre-‐trial
disclosure
by
the
Crown
of
all
information
relevant
to
the
conduct
disclosure.
But
the
secrecy
of
the
above
scheme
doesn’t
allow
D
to
of
the
defence
is
a
constitutional
obligation,
entailed
by
the
accused’s
right
defend
their
case
and
violates
principles
of
fundamental
justice.
to
make
full
answer
and
defence
1.Does
the
procedure
under
the
IRPA
for
determining
the
reasonableness
of
the
(d)
Pre-‐trial
disclosure
by
third
parties
certificate
infringe
s.
7
of
the
Charter
! the
access
to
private
records
in
the
possession
of
third
parties
could
be
• IRPA,
clearly
deprive
detainees
such
as
the
appellants
of
their
necessary
to
an
accused’s
right
to
make
full
answer
and
defence.
Must
LIBERTY,
because
the
person
named
in
a
certificate
can
face
detention
engage
in
a
balancing
between
full
answer
and
defence
and
pending
the
outcome
of
the
proceedings.
privacy/equality
rights
of
the
other
(O’Conner
case)
• The
detainee’s
SECURITY
may
be
further
affected
in
various
ways.
The
certificate
process
may
lead
to
removal
from
Canada,
to
a
place
Fair
Administrative
Process:
where
his
or
her
life
or
freedom
would
be
threatene
• Suresh,
“[t]he
greater
the
effect
on
the
life
of
the
individual
by
the
The
common
law
rules
of
procedural
fairness
must,
of
course,
yield
to
any
decision,
inconsistent
statutory
provisions
• the
greater
the
need
for
procedural
protections
to
meet
the
! where
s
7
applies
the
rules
of
procedural
fairness
have
constitutional
status
requirements
of
fundamental
justice
under
s.
7
and
will
prevail
over
any
inconsistent
statutory
provision.
But
it
could
be
• Disclosure
is
a
constitutional
obligation.
under
s
1
of
charter
but
it
would
be
difficult
to
justify
a
breach
of
the
• s
7
guarantees
the
accused
the
right
to
present
a
full
answer
and
procedural
norms
of
fundamental
justice
and
no
such
justification
has
so
defence
(R
v
Seaboyer)
far
been
successful
Page
71
of
86
• Access
to
private
records
in
the
possession
of
third
parties
could
be
• The
claimants
also
submitted
that
sections
of
the
CDSA
violated
the
necessary
to
an
accused’s
right
to
make
full
answer
and
defence.
Must
claimants’
s.7
Charter
rights.
engage
in
a
balancing
between
full
answer
and
defence
and
privacy/equality
rights
of
the
other
(O’Conner
case)
HELD:
The
federal
CDSA
provisions
do
apply
to
provincial
health
activities.
While
• the
Crown
is
under
a
duty
to
preserve
relevant
evidence
once
it
comes
the
provisions
do
not
violate
the
claimants’
s.7
rights,
the
Minister’s
failure
into
the
possession
or
control
of
the
Crown
to
provide
an
exemption
does.
• The
overarching
principle
of
fundamental
justice
that
applies
here
is
this:
before
the
state
can
detain
people
for
significant
periods
of
REASONS
-‐
Division
of
Powers
time,
it
must
accord
them
a
fair
judicial
process
! Recent
jurisprudence
limited
interjurisdictional
immunity
via
the
double
• This
basic
principle
has
a
number
of
facets.
Each
of
these
facets
must
aspect
doctrine.
3
reasons
for
rejecting
the
interjurisdictional
immunity
be
met
in
substance.
claim
o Right
to
a
hearing
o First,
immunity
of
the
provincial
health
power
had
never
been
o Hearing
to
be
impartial
recognized
in
the
jurisprudence.
o Decision
based
on
fact
and
law
o Second,
claimants
“failed
to
identify
a
delineated
‘core’”
of
the
o Right
to
know
case
against
you
and
right
to
answer
that
provincial
health
power,
which
is
large
and
overlaps
substantially
case.
with
federal
jurisdiction.
o Third,
granting
interjurisdictional
on
the
facts
might
result
in
a
2.Could
the
law
be
justified
as
a
reasonable
limit
on
s
7
(s
1
Oakes
test)???
“legal
vacuum”
where
neither
government
is
able
to
legislate.
(a)
Pressing
and
substantial
objective?
The
protection
of
Canada’s
national
security
! The
court
was
careful
to
affirm
that
the
doctrine
of
interjurisdictional
and
related
intelligence
sources
immunity
has
been
narrowed,
not
abolished.
Constitutes
a
pressing
and
substantial
objective
and
thus
is
sufficiently
important.
! Implicitly
suggests
that
future
interjurisdictional
immunity
arguments
should
be
limited
to
invoking
previously
identified
“core”
undertakings.
(b)
Proportionality
assessment:
(i)
Rational
connection?
withholding
such
info
was
rationally
connected
to
REASONS
–
Charter
Argument
the
objective
! The
court
found
that
the
prohibition
of
possession
in
the
CDSA
engages
the
(ii)
Minimum
impairment?
BUT
the
law
failed
to
limit
the
right
by
the
least
claimants’
s.7
right
to
liberty
since
its
breach
can
result
in
imprisonment.
drastic
means,
because
Parliament
could
have
adopted
procedures
to
! It
also
engages
Insite
clients’
s.7
rights
to
life
and
security
of
the
person
by
protect
secrecy
that
were
less
intrusive
of
individual
rights.
denying
them
access
to
“potentially
lifesaving
medical
care.”
! However,
these
limitations
do
not
breach
FJ.
The
claimants’
as
arbitrary,
McLachlin
CJ:
without
some
effort
to
compensate
for
the
non-‐disclosure
of
secret
overbroad
and
disproportionate
were
dismissed
on
the
grounds
that
the
info,
the
security
–
certificate
process
could
NOT
be
justified
under
s
1
CDSA
has
a
built-‐in
“safety
valve”
that
empowers
the
Minister
to
grant
exemptions
to
possession
for
medical/
scientific
purposes.
! While
the
statute
did
not
violate
the
claimants’
s.7
rights,
the
court
held
CANADA
v.
PHS
COMMUNITY
SERVICES
SOCIETY
[2011]
that
the
Minister’s
decision
did,
the
Minister’s
decision
was
arbitrary
and
FACTS:
disproportionate
in
its
effects.
Denying
the
life
saving
services
that
Insite
• Insite
=
safe
injection
facility
in
Vancouver
that
provides
medical
provides
is
grossly
disproportion
to
the
benefit
of
having
a
uniform
drug
supervision
to
intravenous
(illegal)
drug
users.
policy.
• It
has
operated
under
exemption
in
CDSA.
• In
2008
the
federal
Minister
of
Health
failed
to
extend
Insite’s
CDSA
exemption,
which
brought
about
this
action.
• The
claimants,
argued
that
the
division
of
powers
makes
the
federal
CDSA
prohibitions
inapplicable
to
the
provincial
health
activities
and
patrons.
Page
72
of
86
[10]
Equality
Rights
–CONSTITUTION
ACT,
1982,
S
15
Application
of
s
15
(a) Individual
Section
15
of
Charter:
! The
benefit
of
the
equality
rights
in
s
15
is
conferred
upon
“an
individual”
15(1)
“Every
individual
is
equal
before
the
law
and
has
the
right
to
the
equal
and
probably
excludes
a
corporation
protection
and
equal
benefit
of
the
law
without
discrimination
and,
in
(b) “law”
in
s
15
particular,
without
discrimination
based
on
race,
national
or
ethnic
origin,
! Applies
to
any
type
of
government
action
colour,
religion,
sex,
age,
or
mental
or
physical
disability”
15(2)
subsection
(1)
does
not
preclude
the
law,
program
or
activity
that
has
as
its
(c) Private
action
[indirectly
applicable
via
human
rights
code]
object
the
amelioration
of
conditions
of
disadvantaged
individuals
or
groups
! S
32
of
the
Charter
excludes
private
action
from
the
application
of
the
including
those
that
are
disadvantaged
because
of
race,
national
or
ethnic
origin,
Charter.
This
means
that
s
15
does
not
apply
to
private
acts
of
colour,
religion,
sex,
age
or
mental
or
physical
disability.
discrimination,
where
an
employer
hires
only
male
employees,
or
a
landlord
rents
only
to
white
people,
etc
! Human
Rights
Codes
have
been
enacted
in
all
Canadian
Jurisdictions
which
! S
15
confers
its
right
on
an
“individual”
prohibit
private
acts
of
discrimination
in
employment,
accommodation
and
! Equality
is
expressed
in
4
different
ways:
the
provision
of
services.
Human
Rights
Codes
takes
precedence
over
other
o Equality
before
the
law
statutes.
o Equality
under
the
law
! The
Human
Rights
Codes
are
themselves
subject
to
the
Charter
o Equal
protection
of
the
law
o Equal
benefit
of
the
law
Blainey
v
Ontario
Hockey
(1986):
o The
reason
for
having
4
formulations
was
to
reverse
the
restrictive
Facts:
A
girl
who
had
been
excluded
by
the
Ontario
Hockey
Association
interpretations
placed
by
the
SCC
on
the
phrase
“equality
before
the
from
a
boy’s
hockey
team
challenged
a
provision
in
the
Ontario
law”
which
was
used
in
s
1(b)
of
Cdn
BoR
Human
Rights
Code
that
permitted
single-‐
sex
sports
team.
! Guarantees
against
“discrimination
based
on
race,
national
or
ethnic
origin,
Ontario
Court
of
Appeal
held:
colour,
religion,
sex,
age
or
mental
or
physical
disability”
(THESE
ARE
THE
the
exception
was
a
breach
of
s
15
because
it
denied
the
plaintiff
LISTED
GROUNDS
OF
DISCRIMINATION)
the
benefit
of
the
Code
by
reason
of
her
sex.
Therefore,
the
! ‘In
particular’
makes
clear
that
the
named
grounds
are
not
exhaustive
Charter
has
an
indirect
impact
on
her
private
action
! Subsection
2
authorizes
the
creation
of
affirmative
action
programmes
that
have
the
purpose
of
ameliorating
the
conditions
of
disadvantaged
groups
Equality
(DEFINITION)
(a) Four
equalities
of
s
15
Canadian
Bills
of
Rights
! Equality
before
the
law
! s
1(b)
guarantees
“equality
before
the
law”.
This
provision
which
applies
! Equality
under
the
law
only
to
the
federal
Parliament,
was
superseded
by
s
15
of
the
Charter
which
! Equal
protection
of
the
law
applies
to
the
federal
Parliament
and
to
the
provincial
legislatures
! Equal
benefit
of
the
law
! SCC
held
only
once
that
the
equality
clause
in
s
1(b)
of
the
Canadian
Bill
of
Rights
had
the
effect
of
nullifying
a
statutory
provision
–
R
v
Drybones:
(b) Similarly
situated
test
court
struck
down
a
provision
of
the
Indian
Act
that
made
it
an
offence
for
! Before
the
SCC
decided
the
Andrews
case,
Canadian
courts
were
applying
“an
Indian”
to
be
intoxicated
off
a
reserve.
Ritchie
J
held
that
the
racial
a
version
of
the
Aristotelian
principle
of
equality
known
as
the
“similarly
classification
“Indian”
which
was
employed
by
the
challenged
provision
was
situated”
test
=
equality
was
made
out
if
it
could
be
shown
that
the
law
a
breach
of
s
1(b)
accorded
the
complainant
worse
treatment
than
others
who
were
similarly
situated
! In
Andrews,
McIntyre
J
said
this
test
was
“seriously
deficient”
and
could
NO
LONGER
BE
USED.
(who
is
similarly
situated?
What
kinds
of
differences?)
Page
73
of
86
(c) Formal
and
substantive
equality
ELEMENTS
OF
S
15
(Andrew
v
Law
Society
of
B.C;
Law
v
Canada)
! Formal
equality
–
merely
prohibits
direct
discrimination
(which
is
insufficient)
1. DISADVANTAGEOUS
DISTINCTION:
does
the
challenged
law
impose
! Substantive
equality
–prohibits
both
direct
and
indirect
discrimination.
I.e.
(directly/indirectly)
a
disadvantage
on
the
claimant
(in
the
form
of
a
burden
law
against
drivers
under
6”
indirectly
discriminates
against
women.
withheld)
in
comparison
to
other
comparable
persons?
(d) Valid
federal
objective
! STEP
1:
Selection
of
comparator
group
! Before
the
adoption
of
the
Charter,
the
approach
that
became
dominant
! In
order
to
establish
discrimination
under
s
15,
an
individual
must
show
in
the
SCC
was
to
uphold
any
distinction
in
a
statute
if
the
statute
pursued
that
he
has
suffered
a
disadvantage
by
reason
of
his
possession
of
one
of
a
“valid
federal
objective”
the
characteristics
named
in
s
15
or
an
analogous
characteristic
Discrimination
[a
comparison
analysis]
! Andrews:
McIntyre
J
said
in
order
for
a
legislative
distinction
to
amount
to
discrimination
against
an
individual
or
group,
the
distinction
must
be
! Early
application
of
s
15
resulted
in
an
overload
of
case
being
brought
to
the
one
“which
has
the
effect
of
imposing
burden,
obligations
or
court
challenging
on
equality
ground
disadvantages
on
such
individual
or
groups
not
imposed
on
others,
or
! Then
came
the
Andrews
case,
which
started
to
develop
rules
to
control
the
which
withholds
or
limits
access
to
opportunities,
benefits
and
floodgates
advantages
available
to
other
members
of
society”
o the
SCC
held
that
s
15
was
a
prohibition
of
“discrimination”
and
that
! It
is
the
requirement
of
disadvantage
that
involves
a
comparison
with
discrimination
could
only
be
based
on
a
ground
that
was
listed
in
s
15
or
others-‐
others
who
are
similarly
situated
to
the
complainant
except
for
that
was
analogous
to
those
listed
in
the
section
the
presence
of
a
listed
or
analogous
personal
characteristic
–in
Andrews
this
was
easily
satisfied
! So
it
is
now
clear
that
s
15
prohibits
only
those
violations
of
equality
that
o The
plaintiff’s
non-‐Canadian
citizenship
denied
him
access
to
the
amount
to
discrimination.
Discrimination
is
the
operative
concept,
and
the
SCC
legal
profession,
while
permitting
access
to
others
whose
has
settled
that
the
following
amounts
to
discrimination:
qualifications
to
practice
law
were
no
different
from
his,
except
for
their
possession
of
Canadian
citizenship
1. the
challenged
law
imposed
(directly
or
indirectly)
on
the
claimant
a
disadvantage
(in
the
form
of
a
burden
or
withheld
benefit)
in
comparison
to
other
comparable
persons;
(Andrews);
AND
! The
presence
of
disadvantage
(or
unequal
treatment)
requires
a
comparison
between
the
legal
position
of
the
claimant
and
that
of
other
people
to
whom
the
claimant
may
legitimately
invite
2. The
disadvantage
is
based
on
a
ground
listed
in
or
analogous
to
a
comparison-‐
INVOLVES
2
INQUIRES:
ground
listed
in
s
15
(Andrews),
AND
3. The
disadvantage
is
imposed
in
a
way
that
impairs
human
dignity
(Law
1.
Whether
the
group
to
which
the
claimant
compares
herself
is
v
Canada)
the
appropriate
comparator
group,
(once
the
appropriate
nd
comparator
group
is
selected
the
2
is:);
! A
claimant
who
persuades
the
Court
of
these
3
elements
is
entitled
to
a
2.
Whether
the
distinction
of
the
law
draws
between
the
finding
of
discrimination,
which
means
that
the
challenged
law
is
in
breach
claimant
and
the
comparator
group
is
disadvantageous
to
the
of
s
15"
the
burden
then
shifts
to
the
government
to
justify
the
claimant
discrimination
under
s
1
! Ie.
If
a
women
challenges
a
law
that
confers
a
benefit
only
on
men,
the
comparator
group
will
be
men
who
qualify
for
the
benefit
,
and
if
the
! NOTE:
the
conclusion
drawn
on
a
s
15
analysis
is
whether
or
not
there
is
claimant
possesses
all
the
qualifications
for
the
benefit
other
than
her
sex,
DISCRIMINATION
then
it
will
be
clear
that
she
has
suffered
a
disadvantage
by
reason
of
her
sex.
Page
74
of
86
! Auton
v
British
Columbia
2004:
a
claim
of
discrimination
was
made
by
ANDREWS
v.
LAW
SOCIETY
OF
B.C.
autistic
children
and
their
parents,
who
complained
that
the
province
did
! First
s
15
case
to
reach
the
SCC
not
fund
the
new
“applied
behavioral
therapy”
that
was
the
most
effective
! Issue:
challenge
to
the
statutory
requirement
of
the
province
of
B.C.
treatment
for
autism.
Because
the
claimants
had
adduced
no
evidence
that
members
of
the
bar
had
to
be
citizens
of
Canada
that
the
province
was
funding
“other
comparable
novel
therapies”,
they
! Court
held:
this
requirement
was
contrary
to
s
15
and
not
saved
could
not
show
disadvantage
or
unequal
treatment
under
s
1.
Court
held
that
citizenship
qualified
as
an
analogous
! The
definition
of
the
comparator
group
is
critical
to
the
outcome
of
s
15
ground
of
discrimination
cases
! after
Andrews
it
was
clear
that
s
15
was
a
prohibition
of
! Only
if
the
claimant’s
choice
of
comparison
is
agreed
to
by
the
court
will
discrimination,
and
that
discrimination
involved
the
imposition
of
a
the
claim
be
able
to
proceed
through
the
various
stages
of
s
15
and
s
1
disadvantage
(the
imposition
of
a
burden
or
the
denial
of
a
benefit)
on
an
individual
by
reason
of
the
individual’s
possession
of
a
STEP
2:
Requirement
of
disadvantage
characteristic
that
was
either
listed
in
s
15
or
was
analogous
to
those
listed
in
s
15
! Once
the
appropriate
comparator
group
has
been
selected,
it
Is
necessary
to
compare
the
treatment
provided
by
the
law
to
the
claimant
with
the
! Analogous
grounds
includes:
treatment
provided
to
the
comparator
group
! There
are
grounds
that
are
similar
in
some
important
way
to
the
grounds
listed
in
s
15
which
are
“race,
national
or
ethnic
origin,
! TWO
TYPES:
If
the
law
treats
the
claimant
less
favourably,
whether
by
colour,
religion,
sex,
age,
or
mental
or
physical
disability
=
(1)
Withholding
a
benefit
that
is
granted
to
the
comparator
group,
or
by
personal
characteristics
of
individuals
that
are
unchangeable
(2)
Imposing
a
burden
that
is
not
applicable
to
the
comparator
group,
is
(immutable)
or
at
least
unchangeable
by
the
individual
except
the
claim
of
disadvantage
or
unequal
treatment
made
out
with
great
difficulty
or
cost;
they
are
not
voluntarily
chosen
by
individuals,
but
are
an
involuntary
inheritance
! Group
disadvantage
=
being
part
of
a
disadvantaged
group
is
not
a
o It
is
morally
wrong
to
impose
a
disadvantage
on
a
prerequisite
to
finding
discrimination,
although
it
is
an
indication
of
an
person
of
a
characteristic
that
is
outside
the
person’s
analogous
group
(Miron
v
Trudel;
Egan
v
Canada)
control
! And
it
is
relevant
to
the
human
dignity
analysis
(Law
v
Canada)
! Supreme
Court
has
held
that
an
analogous
ground
is
one
based
on
a
“personal
characteristic
that
is
immutable
or
changeable
only
at
an
unacceptable
cost
to
personal
identity”
(Corbiere
v
(1) ENUMERATED
(single)
OR
ANALOGOUS
(similar
/
equiv)
GROUNDS:
the
Can.)
distinction
is
on
the
basis
of
a
listed
or
analogous
ground
! The
listed
ground,
although
not
exhaustive,
did
point
to
personal
! ANALOGOUS
GROUNDS
=
characteristics
of
individuals
that
cannot
easily
be
changed
and
which
have
often
been
the
target
of
prejudice
or
stereotyping
Citizenship
(Andrews):
La
Forest
J
pointed
out
that
citizenship
! The
reference
in
subsection
(2)
(the
affirmative
action
clause)
to
was
a
personal
characteristic
that
is
“typically
not
within
the
“disadvantaged
individuals
or
groups”
suggested
that
the
role
of
s
15
control
of
the
individual,
and
in
this
sense,
immutable
was
to
correct
discrimination
against
disadvantaged
individuals
or
groups.
Marital
status
(Miron
v
Trudel):
! The
requirement
that
the
discrimination
be
in
relation
to
a
listed
or
analogous
ground
was
stated
in
ANDREWS
v.
LAW
SOCIETY
OF
B.C.
Sexual
orientation
(Egan
v
Canada):
La
Forest
J
described
sexual
o
orientation
as
“a
deeply
personal
characteristic
that
is
either
o
unchangeable
or
changeable
only
at
unacceptable
personal
costs”
Page
75
of
86
! Egan:
a
same-‐
sex
couple
who
were
seeking
a
spousal
allowance
! There
are
4
contextual
factors
used
to
determine
whether
or
not
under
the
federal
Old
Age
Security
program,
did
not
actually
human
dignity
is
impaired
by
a
law
that
imposed
a
disadvantage
succeed.
But
the
ruling
on
analogous
grounds
were
clear
enough
on
the
basis
of
a
listed
or
analogous
ground
and
it
paved
the
way
for
a
series
of
cases
that
confirmed
the
ruling
and
upheld
te
equality
rights
of
homosexual
claimants
! The
correspondence
factor
has
become
the
KEY
to
the
impairment
of
human
dignity
! Vriend
v
Alberta:
court
held
that
Alberta’s
human
rights
code
violated
s
15
by
failing
to
include
sexual
orientation
as
a
! Law
v
Canada
identified
4
contextual
factors
to
analyze
when
prohibited
ground
of
discrimination
determining
whether
there
was
an
impairment
of
human
dignity:
o (1)
the
existence
of
pre-‐
existing
disadvantage,
stereotyping,
! Little
sisters
Book
and
Art:
court
held
that
the
practices
of
prejudice
or
vulnerability:
if
the
law
promotes
stereotype,
customs
officials
in
obstructing
the
importation
of
books
by
a
then
this
indicates
a
s
15
infringement
bookstore
catering
to
gay
and
lesbian
communities
was
a
breach
o (2)
the
correspondence
between
the
distinction
and
the
of
s
15
claimant’s
characteristics
or
circumstances
(sometimes
! These
decisions
also
helped
the
SC
to
decide
that
the
federal
legislation
must
make
distinctions
in
order
to
account
for
power
over
“marriage”
extended
to
same-‐
sex
marriage,
a
ruling
personal
characteristics
(e.g
Law,
the
denial
of
CPP
survivor
which
was
followed
by
legislation
enacting
a
new
national
benefits
to
spouses
under
the
age
of
35
accurately
corresponded
to
definition
of
marriage
that
no
longer
requires
the
couple
to
be
of
the
circumstances
of
younger
spouses
of
deceased
income
earners,
opposite
sex
(Civil
Marriage
Act)
who
could
be
expected
to
be
more
successful
in
finding
and
retaining
employment
than
older
spouses)
! so
far
these
3
grounds
are
the
only
ones
that
have
been
recognized
o (3)
the
existence
of
ameliorative
purposes
or
effects
on
other
groups:
this
factor
is
more
relevant
where
the
s
15(1)
claim
is
! NOT
ANALOGOUS
GROUNDS:
brought
by
a
more
advantaged
member
of
society
(e.g
in
Law,
the
SCC
held
that
a
factor
supporting
the
view
that
the
impugned
CPP
provisions
do
not
violate
essential
human
dignity
is
the
clear
Place
of
residence
-‐
except
in
the
special
case
of
residence
on
an
ameliorative
purpose
of
the
pension
scheme
for
older
surviving
Indian
reserve
(ie.
Turpin)
spouses.
Older
surviving
spouses,
like
surviving
spouses
who
are
Occupation
–
so
that
a
law
denying
collective
bargaining
rights
disabled
or
who
care
for
dependent
children,
are
more
to
police
officers
cannot
be
challenged
under
s
15
(ie.
Re
economically
vulnerable
to
the
long-‐
term
effects
of
the
death
of
a
Workers
Comp)
spouse)
Substance
orientation-‐
so
that
a
law
prohibiting
the
use
of
! an
ameliorative
purpose
will
likely
not
violate
marijuana
cannot
be
challenged
under
s
15
the
dignity
of
more
advantaged
individuals
that
Privileges
for
the
Crown
and
other
public
authorities
in
are
excluded
from
the
law’s
scope
where
the
litigation
cannot
be
challenged
under
s
15
because
the
purpose
accords
with
the
purpose
of
section
existence
of
a
claim
against
government
is
NOT
an
analogous
15(1)
itself
and
corresponds
to
the
needs
and
ground
(ie
Rudolph)
circumstances
of
the
disadvantaged
group
targeted
by
the
legislation
! Where
there
is
NO
distinction
based
on
a
listed
or
analogous
o (4)
the
nature
of
the
interest
affected:
the
more
severe
and
ground,
there
is
no
remedy
under
s
15
localized
the
consequences
on
the
affected
group,
the
more
likely
that
the
distinction
responsible
for
these
consequences
(2) DISADVANTAGE
AND
HUMAN
DIGNITY:
does
the
disadvantage
impair
is
discriminatory
within
the
meaning
of
s
15
of
the
Charter;
claimant’s
human
dignity
evaluate
not
only
the
economic
but
also
the
constitutional
and
societal
significance
attributed
to
the
interest
or
interests
adversely
affected
by
the
legislation
in
question
Page
76
of
86
! “SUBSTANTIVE
EQUALITY”=
used
to
indicate
a
theory
of
equality
! THE
POINT
IN
THE
DIGNITY
ANALYSIS
IS
TO
ASK
WHETHER
from
that
covers
indirect
as
well
as
direct
discrimination
the
perspective
of
a
reasonable
person
in
circumstances
similar
o Because
s
15
includes
substantive
inequality,
it
leads
to
to
those
of
the
claimant
who
takes
into
account
the
contextual
invalidity
of
a
law
that
is
discriminatory
in
its
effect
factors
relevant
to
the
claim
(ie
APPLY
A
MODIFIED
OBJECTIVE
! Discriminatory
“in
its
application”=
ie.
A
law
that
prescribed
no
TEST),
the
legislative
imposition
of
differential
treatment
has
discriminatory
qualifications
for
admission
to
the
police
force
would
the
effect
of
demeaning
his
or
her
dignity.
be
discriminatory
in
its
application
if
police
recruitment
procedures
led
to
the
rejection
of
a
disproportionate
number
of
female
! Note,
however,
that
the
SCC
in
R
v
KAPP
2008
(obiter)
opted
applicants.
=
INDIRECT
to
remove
the
human
dignity
requirement,
and
replaced
it
with
a
o In
this
case
s
15
will
NOT
lead
to
the
invalidity
of
the
law
“discrimination”
requirement,
namely
the
perpetuation
of
itself.
S
15
will
deny
validity
to
past
applications
of
the
law
disadvantage
or
stereotyping
and
will
require
(in
the
police
example)
that
gender-‐
! The
4
factor
contextual
approach
IS
STILL
RELEVANT:
neutral
procedures
be
established
for
its
future
o (1)
Pre-‐
existing
disadvantage
administration
o (3)
Ameliorative
purpose
! s
15
applies
to
all
of
the
above
(4)
Nature
of
interest
affected
! NOT
necessary
to
show
that
the
law
was
passed
with
the
o [the
above
3
factors
go
to
perpetuation
of
disadvantage]
intention
of
discriminating;
the
mere
fact
that
the
law
does
have
o (2)
correspondence
[this
factor
goes
to
‘stereotyping’]
the
disproportionately
adverse
effect
is
enough
! BUT
human
dignity
analysis
is
still
good
law
,
because
obiter
remarks
of
the
SCC
are
not
binding
on
the
SCC
(b) Reasonable
accommodation
! Ontario
Human
Rights
Commission
v
Simpsons-‐
Sears:
SCC
held
that
an
employer
(a
retailer)was
under
a
duty
to
make
reasonable
Direct
and
Indirect
Discrimination
adjustments
to
employee
work
schedules
so
that
an
employer
was
th
(a) Substantive
equality
a
7
Day
Adventist
would
not
have
to
work
on
Friday
evenings
and
! “direct”
discrimination
=
a
law
that
is
discriminatory
on
its
face
(ie
a
Saturdays
law
that
expressly
excluded
women
from
admission
to
the
police)
o the
rule
requiring
employees
to
be
available
for
work
at
o “formal
equality”=
a
theory
of
equality
that
covers
only
those
times
was
a
reasonable
requirement
for
a
retailer
direct
discrimination
because
those
times
were
busy
in
the
retail
trade.
o S
15
includes
direct
discrimination
and
this
leads
to
However,
the
rule
had
a
disproportionately
adverse
effect
invalidity
of
a
law
that
is
discriminatory
on
its
face
on
those
observing
a
Saturday
Sabbath
and
therefore
! Discriminatory
“in
its
effect”=
(ie.,
a
law
that
imposed
height
or
constituted
discrimination
on
the
basis
of
religion
weight
qualifications
for
admission
to
the
police
force
would
be
discriminatory
in
its
effect
of
the
law
(whether
intended
or
not)
was
Justification
under
s
1
to
disqualify
a
disproportionate
number
of
women)=
“indirect
! S
1
of
the
Charter
of
Rights
provides
that
all
the
Charter
rights
are
subject
discrimination”
to
“such
reasonable
limits
prescribed
by
law
as
can
be
demonstrably
o Indirect
discrimination
is
a
law
that
does
not
expressly
justified
in
a
free
and
democratic
society”
employ
any
of
the
categories
listed
In
s
15
(or
analogous
to
! Since
Law
imported
the
human
dignity
analysis
into
s
15,
there
has
only
those
listed),
if
the
law
has
a
disproportionately
adverse
been
one
case
in
which
s
1
has
saved
a
law
found
to
be
in
breach
of
s
15,
effect
on
persons
defined
by
any
of
the
prohibited
showing
the
difficulty
in
upholding
a
law
that
infringes
inequality
categories
Affirmative
action
o Indirect
also
known
as
“systemic”
discrimination
or
! Subsection
(2)
of
s
15
provides:
subsection
(1)
does
not
preclude
any
law,
“adverse-‐
effect”
discrimination
program
or
activity
that
has
as
its
object
the
amelioration
of
conditions
of
disadvantaged
individuals
or
groups
including
those
that
are
disadvantaged
Page
77
of
86
because
of
race,
national
or
ethnic
origin,
colour,
religion,
sex,
age
or
subsection
(3)
of
s
93
made
reference
to
any
system
of
separate
schools
mental
or
physical
disability
“thereafter
established”,
meaning
established
after
confederation
!
This
makes
clear
that
s
15
does
not
preclude
“affirmative
action”
or
“equity”
programmes
in
favour
of
“disadvantaged
individuals
or
groups”
(d) Province
of
residence
in
ss
91,
92
! This
has
not
been
interpreted
as
an
“exception”
to
s
15(1);
rather
! Supreme
court
has
in
fact
held
that
place
of
residence
is
not
an
analogous
subsection
(2)
and
(1)
are
confirmatory
of
one
another;
they
are
ground
independent
(R
v
Kapp)
! Differences
between
provincial
laws
cannot
amount
to
discrimination
under
s
15,
because
that
would
require
a
uniformity
of
provincial
laws
Discrimination
Permitted
by
Constitution
which
would
be
inconsistent
with
the
distribution
of
legislative
power
in
ss
91
and
92
(and
some
other
sections)
of
the
Constitution
Act
1867
(a) Age
in
ss
23,
29,
99
! What
is
the
position
if
the
Constitution
itself
requires
or
permits
(e) Citizenship
in
s
6
discrimination?
! Because
of
s
6(1)’s
guarantee
of
the
right
to
remain
in
Canada
applies
only
! For
example
the
Constitution
Act
1867
provides
that
a
person
cannot
be
a
“citizen”,
it
has
been
held
that
the
Immigration
Act
may
validly
provide
appointed
to
the
Senate
(s
23);
and
a
senator
must
retire
at
the
age
of
75
for
the
deportation
of
non-‐
citizens
who
have
committed
criminal
offences,
(s29);
a
judge
must
retire
at
the
age
of
75
(s99)
or
who
have
been
certified
as
a
threat
to
national
security
! These
provisions
impose
a
burden
by
reference
to
a
ground
of
! The
imposition
of
a
burden
on
non-‐
citizens
that
does
not
also
apply
to
discrimination
that
is
listed
in
s
15,
namely,
age.
citizens
would
normally
be
a
breach
of
s
15,
but
in
the
case
of
the
right
to
! The
provisions
would
therefore
be
contrary
to
s
15
and
hence
invalid
remain
in
Canada
a
difference
in
treatment
was
specifically
contemplated
(unless
saved
by
human
dignity
or
s
1)
if
they
were
contained
in
an
official
by
s
6(1)
instrument
other
than
the
Constitution
itself
! Outside
the
right
to
remain
in
Canada
under
s
6(1),
laws
imposing
! Are
the
provisions
sheltered
from
Charter
attack
by
reason
of
their
disabilities
on
non-‐citizens
have
been
held
to
be
in
breach
of
s
15
constitutional
status?
YES
! Andrews
v
Law
Society
of
B.C
held
that
citizenship
was
an
analogous
ground
of
discrimination
under
s
15
and
struck
down
the
provincial
law
that
(b) Race
in
s.
91(24)
restricted
entry
to
the
province’s
legal
profession
to
Canadian
citizens
! The
Constitution
Act
1867
by
s
91(24)
confers
on
the
federal
parliament
the
power
to
make
laws
in
relation
to
“Indians,
and
lands
reserved
for
the
(f) Language
in
ss
16-‐23
Indians”.
Obviously
any
law
enacted
under
this
power
will
have
to
be
! These
sections
accord
a
“special
status”
to
French
and
English
“in
explicitly
restricted
to
“Indians”
or
will
have
a
disproportionate
impact
on
comparison
to
all
other
linguistic
groups
in
Canada”
Indians
who
live
on
“lands
reserved
for
the
Indians”
! For
example
the
right
to
minority
language
education
in
s
23
which
is
! Laws
enacted
under
s
91(24)
that
employ
the
classification
“Indian”
(or
that
explicitly
limited
to
French
and
English,
does
not
extend
to
other
minority
have
a
disproportionate
impact
on
Indians
or
lands
reserved
for
the
language
speakers
by
the
operation
of
s
15
Indians)
should
not
be
vulnerable
to
attack
under
s
15
The
Law
on
the
listed
and
analogous
grounds:
CANNOT
DISCRIMINATE
ON
THESE
(c) Religion
in
s
93
GROUNDS:
! Ontario
Separate
School
Funding
case:
religious
schools
other
than
the
Roman
Catholic
schools
received
no
public
funding.
The
SCC
upheld
the
Race
statute
on
the
basis
that
the
distinctive
treatment
of
Roman
Catholic
school
! “race”
as
well
as
“national
or
ethnic
origin”
and
“colour”
are
grounds
of
supporters
was
expressly
permitted
by
the
Constitution
discrimination
expressly
prohibited
by
s
15
! the
province’s
power
to
enact
laws
in
relation
to
education
came
from
s
93
! It
is
difficult
to
imagine
a
situation
in
which
a
racial
distinction
could
possibly
of
the
Constitution
Act
1867
be
upheld,
unless
it
falls
under
s
15(2)
! however,
s
93
went
on
to
guarantee
the
rights
of
Roman
Catholic
and
! The
aboriginal
situation
in
Canada
is
a
special
one
(see
s
25
of
Charter
and
s
Protestant
school
supporters
that
existed
at
the
time
of
confederation
and
91(24)
of
Constitution
Act,
1867
Page
78
of
86
o A
law
enacted
by
the
federal
parliament
under
s
91(24)
for
the
Mental
or
Physical
Ability
benefit
of
Indian
people,
and
laws
enacted
to
give
effect
to
! Another
ground
of
discrimination
that
is
expressly
prohibited
by
s
15
aboriginal
or
treaty
rights,
are
not
affected
by
s
15
of
the
Charter
! Although
there
are
legal
restrictions
properly
predicated
on
mental
disability
(ie,
a
blind
person
is
disqualified
from
driving),
many
disabilities
Religion
can
be
accommodated
by
changes
to
work
places
and
public
facilities
that
! Another
ground
expressly
prohibited
by
s
15
permit
those
who
are
blind,
for
example,
to
function
effectively.
Therefore
! The
funding
of
the
schools
of
a
religious
denomination
without
comparable
the
rules
that
discrimination
may
be
unintended,
indirect
and
may
require
provision
for
the
supports
of
the
schools
of
other
religious
denominations
reasonable
accommodation,
are
of
special
importance
here
would
be
forbidden
by
s
15,
unless
that
denominational
school
system
is
! In
several
of
the
“accommodation”
cases
(ie
where
an
accommodation
had
protected
under
the
special
provision
of
s
93
been
made
to
the
special
needs
of
a
class
of
persons
with
disabilities),
the
constitutional
challenge
to
the
appropriateness
/
method
of
the
Sex
accommodation
failed,
indicating
that
deference
should
be
paid
to
a
! “Sex”
is
anther
grounds
of
discrimination
that
is
expressly
prohibited
by
s
15
legislated
effort
to
accommodate
such
needs.
Court
defers
to
parliament
! R
v
Hess:
the
offence
of
statutory
rape
did
not
offend
s
15,
although
the
to
determine
best
accommodation
method.
offence
could
only
be
committed
by
a
male,
on
the
basis
that
since
the
prohibited
act
(intercourse)
was
defined
by
reference
to
penetration,
so
it
! But
this
pattern
of
deference
was
broken
in
Nova
Scotia
v
Martin-‐-‐
could
as
a
matter
of
biological
fact
be
committed
only
by
males
! Nova
Scotia
v
Martin:
the
SCC
struck
down
provisions
of
a
statutory
! Brenner
v
Canada:
a
provision
of
the
Federal
Citizenship
Act
distinguished
worker’s
compensation
scheme
that
dealt
with
chronic
pain;
it
provided
a
4
between
men
and
women
was
struck
down
under
s
15
in
regulating
the
week
rehab
period
for
worker
suffering
from
chronic
pain.
HELD:
(i)
the
citizenship
status
of
persons
born
outside
Canada
before
1977,
the
Act
restriction
on
benefits
for
chronic
pain
distinguished
between
worker
with
provided
that
a
person
born
to
a
Canadian
father
was
automatically
entitled
chronic
pain
and
workers
with
other
kinds
of
work
related
injuries;
(ii)
the
to
citizenship
upon
registration
in
Canada
of
the
birth,
but
a
person
born
to
distinction
was
based
on
physical
disability
(an
expressly
prohibited
a
Canadian
mother
had
to
apply
for
citizenship
and
undergo
a
security
ground),
even
though
members
of
the
comparison
group
were
also
check.
This
law
could
not
be
saved
under
s
1,
failing
on
the
rational
disabled;
(iii)
the
distinction
impaired
human
dignity
of
chronic
pain
suffers,
connection
test.
and
therefore
amounted
to
discrimination;
(iv)
it
could
not
be
saved
by
s
1
Age
Citizenship
! Another
ground
of
discrimination
that
is
expressly
prohibited
! Not
a
ground
of
discrimination
that
is
expressly
mentioned
in
s
15,
but
it
is
! Law
v
Canada:
the
SCC
upheld
a
law
that
denied
a
benefit
to
young
an
analogous
ground
(Andrews
v
Law
Society)
persons,
namely
those
who
were
under
35
were
denied
pension
plan
payments
upon
death
of
surviving
spouses.
Although
there
was
a
Marital
Status
distinction
on
age,
there
was
no
impairment
of
human
dignity.
The
! Not
a
ground
of
discrimination
that
is
expressly
mentioned
in
s
15,
but
in
exclusion
of
persons
under
35
from
the
benefit
scheme
did
not
imply
that
Miron
v
Trudel
the
SCC
held
it
to
be
an
analogous
ground
they
were
less
capable
or
less
worthy,
but
simply
was
designed
to
recognize
the
reality
that
older
people
would
be
in
greater
need
of
support
Sexual
Orientation
and
to
apply
limited
resources
to
those
in
greater
need
! =
an
analogous
ground
(Egan):
in
this
case
the
SCC
held
that
the
federal
! Gosselin
v
Quebec:
Quebec’s
social
assistance
law
provide
that
welfare
Old
Age
Security
Act
offended
s
15
by
making
spousal
allowance
available
recipients
under
30
received
benefits
of
only
about
1/3
of
the
standard
to
a
spouse
“of
the
opposite
sex”
but
not
to
a
same-‐sex
partner.
The
amount
that
was
payable
to
persons
30
or
over.
Held:
while
there
was
a
provision
was
upheld
under
s
1.
distinction
on
the
basis
of
age,
there
was
no
impairment
of
human
dignity
Place
of
Residence
! NOT
an
analogous
ground:
it
lacks
the
element
of
immutability
that
is
common
to
the
listed
grounds
and
is
required
for
the
analogous
grounds
Page
79
of
86
Occupation
! The
focus
of
s.
15(2)
is
on
enabling
governments
to
pro-‐actively
combat
! NOT
an
analogous
ground:
it
lacks
the
element
of
immutability
that
is
discrimination
thus
s.
15(1)
cannot
be
read
in
a
way
that
finds
an
ameliorative
common
to
the
listed
grounds
and
is
required
for
the
analogous
grounds
program
aimed
at
combating
disadvantage
to
be
discriminatory.
! The
TEST
under
s
15(2)
is
as
follows:
A
program
does
not
violate
the
s.
15
equality
guarantee
if
the
government
can
demonstrate
that:
REQUIRED
CASES
FOR
EQUALITY
RIGHTS
o (1)
the
program
has
an
ameliorative
or
remedial
purpose;
and
o (2)
the
program
targets
a
disadvantaged
group
identified
by
the
enumerated
or
analogous
grounds.
ANDREWS
v.
LAW
SOCIETY
OF
BRITISH
COLUMBIA
[1989]
• Apply
test
to
this
case:
The
government
was
hoping
to
redress
the
social
and
FACTS:
s.
42
of
the
Barristers
and
Solicitors
Act
denies
admission
to
non-‐citizens
who
are
in
all
economic
disadvantage
of
the
targeted
bands,
and
the
government’s
aims
correlate
other
respects
qualified.
to
the
actual
economic
and
social
disadvantage
suffered
by
members
of
the
three
ISSUE:
Does
s
42
offend
s
15
of
the
Charter?
aboriginal
bands.
HELD:
Majority
held
that
law
was
unconstitutional
o
Therefore,
the
government
program
is
protected
by
s
15(2)
and
the
REASONING:
program
does
not
violate
the
equality
guarantee
of
s.
15
of
the
Charter.
Wilson
J
(Majority)
! A
rule
which
bars
an
entire
class
of
persons
from
certain
forms
of
employment
WITHLER
v.
CANADA
(ATTORNEY
GENERAL)
[2011]-‐
MOST
RECENT
APPLICATION
solely
on
the
ground
that
they
are
not
Canadian
citizens
violates
the
equality
rights
of
that
class.
FACTS:
The
appellant
were
widows
whose
federal
supplementary
death
benefits
were
!
non-‐citizens
are
a
group
vulnerable
to
having
their
interests
overlooked
and
they
reduced
because
of
their
husbands'
ages.
The
appellants
submitted
that
the
age-‐based
fall
into
an
analogous
group
to
those
enumerated
in
s
15
benefit
reduction,
which
was
part
of
a
statutory
death
benefit
scheme
for
certain
federal
!
S
1
analysis:
There
is
not
a
sufficiently
rational
connection
between
the
required
government
employees,
violated
section
15
of
the
Charter.
personal
characteristic
of
citizenship
and
the
governmental
interest
in
ensuring
HELD
SCC:
the
court
concluded
that
the
focus
must
be
on
the
nature
of
the
benefit.
A
lawyers
in
BC
are
familiar
with
Canadian
institutions,
are
committed
to
Canadian
contextual
assessment
revealed
that
the
age-‐based
benefit
reduction
did
not
breach
section
society,
and
are
capable
of
playing
a
role
in
our
system.
15.
McIntyre
J
(Dissenting
in
part
–
namely
on
the
s
1
analysis)
ANALYSIS:
! the
citizenship
requirement
affects
only
those
non-‐citizens
who
are
permanent
• The
court
emphasized
that
the
focus
of
a
section
15
analysis
is
the
actual
impact
residents.
The
permanent
resident
must
wait
for
a
minimum
of
three
years
from
the
of
the
differential
treatment,
and
therefore
the
analysis
requires
a
contextual
date
of
establishing
permanent
residence
status
before
citizenship
may
be
consideration
of
the
impact
of
the
legislation
or
state
action.
acquired.
The
distinction
therefore
imposes
a
burden
in
the
form
of
some
delay
on
• The
scheme
was
designed
to
benefit
a
number
of
different
groups,
and
the
benefit
permanent
residents
who
have
acquired
all
or
some
of
their
legal
training
abroad
reductions
reflected
the
reality
that
different
groups
of
survivors
have
different
and
is,
therefore,
discriminatory.
The
rights
guaranteed
in
s.
15(1)
apply
to
all
needs.
persons
whether
citizens
or
not
! Having
found
that
section
15(1)
was
not
breached
by
the
benefit
scheme,
the
! It
is
entirely
reasonable
that
legislators
consider
and
adopt
measures
designed
to
court
did
not
perform
a
section
1
analysis.
maintain
within
the
legal
profession
a
body
of
qualified
professionals
with
a
commitment
to
the
country..
R
v.
KAPP
[2008]
FACTS:
The
appellants
are
commercial
fishers,
mainly
non-‐aboriginal,
who
assert
that
their
equality
rights
under
s.
15
were
violated
by
a
communal
fishing
licence
granting
members
of
three
aboriginal
bands
the
exclusive
right
to
fish
for
salmon.
Claimed
fishing
licence
discriminated
against
them
on
the
basis
of
race.
Held:
appeal
dismissed
REASONING:
• As
critics
have
pointed
out,
human
dignity
is
an
abstract
and
subjective
notion
that,
even
with
the
guidance
of
the
four
contextual
factors,
cannot
only
become
confusing
and
difficult
to
apply;
(obitor)
Page
80
of
86
[11]
Remedies-‐
CONSTITUTION
ACT,
1982,
S.
52
and
S.
24
THERE
ARE
6
CHOICES
AVAILABLE
TO
THE
COURTS
UNDER
S
52(1)
! Both
sections
can
be
used
as
remedy
section
for
the
Charter
Reconstruction
o S
52(1)
in
general
applies
to
attacks
on
legislation
• General
rule:
courts
may
not
reconstruct
an
unconstitutional
statute
in
order
to
o S
24(1)
in
general
applies
to
governmental
action
render
it
constitutional
• The
techniques
of
temporary
validity,
severance,
reading
in,
reading
down
and
COMPARISONS:
the
constitutional
exemption
should
be
seen
as
exceptions
to
the
general
rule
# Section
24(1)
is
only
applicable
to
breaches
of
Charter
rights
Section
52(1)
is
applicable
to
the
entire
Constitution,
including
the
Charter
1.
Nullification
! Striking
down/
declaring
that
a
law
is
invalid
because
it
is
inconsistent
with
the
# Section
24(1)
is
available
only
to
a
person
whose
rights
have
been
infringed
Constitution.
Section
52(1)
is
available
in
some
circumstances
to
a
person
whose
rights
! The
effect
of
such
a
holding
is
that
the
litigation
will
be
determined
as
if
the
have
been
infringed
unconstitutional
law
did
not
exist.
! In
R.
v.
Big
M
Drug
Mart
the
Act
was
actually
struck
down
for
breach
of
the
# Section
24(1)
may
be
applied
by
a
“court
of
competent
jurisdiction”
Charter
of
Rights
Section
52(1)
may
be
applied
by
any
court
or
tribunal
with
power
to
decide
questions
of
law
2.
Temporary
Validity
! While
s
52(1)
requires
a
court
to
hold
that
an
unconstitutional
statute
is
# Section
24(1)
authorizes
the
award
of
a
wide
range
of
remedies
invalid,
the
courts
have
assumed
the
power
to
postpone
the
operation
of
the
Section
52(1)
appears
to
authorize
only
a
holding
of
invalidity,
leaving
it
to
declaration
of
invalidity.
the
genera
law
to
impose
a
particular
remedy
! The
statute
will
remain
in
force
until
the
expiry
of
the
period
of
postponement
! In
Schachter,
the
SCC
held
that
a
provision
of
the
federal
Unemployment
# Section
24(1)
confers
a
discretion
on
the
court
as
to
whether
a
remedy
Insurance
Act
offended
the
guarantee
of
equality
in
s
15
because
it
allowed
should
be
awarded
more
generous
child
care
benefits
to
adoptive
parents
than
to
natural
parents.
Section
52(1)
appears
to
confer
no
discretion
on
the
court,
requiring
the
Although
the
Court
was
willing
to
grant
a
temporary
period
of
validity,
Lamer
J
court
to
make
a
holding
of
invalidity
if
it
concludes
that
a
law
or
act
is
recognized
the
radical
character
of
the
remedy.
Cases
in
which
the
immediate
inconsistent
with
the
Constitutuion
striking
down
of
the
legislation
would:
o Pose
a
danger
to
the
public
(Swain)
Supremacy
Clause
[explicit
basis
for
judicial
review]
o Threaten
the
rule
of
law
(Manitoba
Language)
! SECTION
52(1)
of
the
Constitution
Act,
1867:
“The
Constitution
of
Canada
is
o Result
in
the
deprivation
of
benefits
from
deserving
persons
the
supreme
law
of
Canada,
and
any
law
that
is
inconsistent
with
the
(Schachter
itself)
provisions
of
the
Constitution
is,
to
the
extent
of
the
inconsistency,
of
no
force
or
effect”
! These
3
guidelines
essentially
limited
the
courts’
use
of
suspended
! This
supremacy
clause
gives
to
the
Charter
overriding
effect.
Since
the
declarations
of
invalidity
to
urgent
situations
where
danger,
disorder,
or
Charter
is
part
of
the
“Constitution
of
Canada”,
any
law
that
is
inconsistent
deprivation
would
be
caused
by
an
immediate
declaration
of
invalidity
with
the
Charter
is
“of
no
force
or
effect”
! But
more
recently,
the
courts
have
gone
beyond
those
categories
because
of
! EFFECT:
preserve
all
pre-‐existing
remedies
for
unconstitutional
action
and
to
the
new
philosophy
that
the
courts
should
be
having
a
dialogue
with
the
extend
those
remedies
to
the
Charter
or
Rights.
In
addition,
the
charter
legislature,
by
allowing
the
legislature
to
remedy
violations
contains
its
own
remedies
clause:
s24(1).
Page
81
of
86
3.
Severance
6.
Constitutional
Exemption
! Holding
that
only
part
of
the
statute
is
inconsistent
with
the
Constitution,
! Granting
a
“constitutional
exemption”
from
“otherwise
valid
legislation”
that
striking
it
down
and
severing
it
from
the
remainder
of
the
statute.
Appropriate
would
be
unconstitutional
in
its
application
to
particular
individuals
or
when
the
rest
of
the
statute
can
survive
independently.
groups"
never
been
used
! Severance
occurs
in
most
charter
cases,
it
is
unusual
for
a
breach
to
taint
the
! In
Big
M
Drug
Mart
–
in
Obiter
they
dabbled
with
option
of
reading
in
entire
statute.
exemption
to
non
Sunday
sabath
worshipers.
This
would
uphold
the
law,
yet
! Severance
is
a
doctrine
of
judicial
restraint:
b/c
its
effect
is
to
minimize
the
compromise
courts
role.
impact
of
a
successful
Charter
attack
on
law:
the
courts
intrusion
into
the
! The
defendant
in
Ferguson
was
a
police
officer
who
was
attacked
by
a
violent
legislative
process
goes
no
further
than
is
necessary
to
vindicate
charter
right.
prisoner
who
he
was
trying
to
put
into
a
cell.
In
the
course
of
the
struggle,
the
! Tetreault-‐
Gadoury
v
Canada:
SCC
held
it
was
a
breach
of
s
15
of
the
Charter
defendant’s
gun
went
off
and
killed
the
prisoner.
The
defendant
was
convicted
to
restrict
unemployment
insurance
benefits
to
persons
under
the
age
of
65.
of
manslaughter.
The
judge
held
that
he
was
entitled
to
a
constitutional
The
court
simply
invoked
the
power
of
severance
to
remove
the
age
65
bar
exemption.
On
appeal,
the
SCC
disagreed,
holding
there
was
no
basis
for
from
the
Act.
The
effect
of
this
was
to
require
payment
of
unemployment
concluding
that
the
4
year
sentence
was
grossly
disproportionate
“in
the
facts
insurance
benefits
to
persons
over
65
who
was
otherwise
qualified.
of
this
case”…”an
inappropriate
intrusion
into
the
legislative
sphere.”
! However,
McLachlin
CJ
reasons
did
not
include
a
retraction
of
Seaboyer,
where
4.
Reading
In
the
court
held
that
a
constitutional
exemption
might
be
available
“in
some
! In
Schachter,
the
SCC
held
that
it
possessed
the
power
not
only
to
sever
other
case”
language
from
a
statute,
but
also
to
“read
in”
new
language
if
that
were
necessary
to
remedy
a
constitutional
defect
Limitation
of
Actions
! The
court
in
this
case
acknowledged
that
caution
was
called
for
in
exercising
! An
action
or
other
form
of
proceeding
for
a
declaration
that
a
statute
is
this
remedy.
Reading
in
would
be
appropriate
in
the
clearest
of
cases
where
unconstitutional,
including
all
the
many
variants
of
the
declaration
that
have
the
cases
contained
the
following:
been
described,
is
not
subject
to
any
limitation
period
a. The
addition
of
the
excluded
class
was
consistent
with
the
legislative
! If
the
reviewing
courts
hold
that
the
statute
is
unconstitutional,
then
the
objective
statute
will
be
declared
to
have
been
unconstitutional
from
its
inception
and
b. There
seemed
to
be
little
choice
as
to
how
to
cure
the
constitutional
the
newly
discovered
rights
and
obligations
that
flow
from
the
retroactive
defect
disappearance
of
the
statute
will
take
effect
automatically
c. The
reading
in
would
not
involve
substantial
change
in
the
cost
or
nature
of
the
scheme
Remedy
Clause
d. The
alternative
of
striking
down
the
under-‐
inclusive
provision
would
be
an
inferior
remedy
! SECTION
24(1)
of
the
Charter:
“anyone
whose
rights
or
freedoms,
as
! R
v
Sharpe:
overall
objective
was
to
maintain
the
child
pornography
guaranteed
by
this
Charter,
have
been
infringed
or
denied
may
apply
to
a
court
legislation;
the
only
way
to
save
it
was
to
read
in
2
provisions.
Personal
use
of
competent
jurisdiction
to
obtain
such
remedy
as
the
court
considers
and
self-‐
made
audio
visual
materials
for
personal
use
appropriate
and
just
in
the
circumstances.
o Provides
for
the
granting
of
a
remedy
to
enforce
the
right
or
freedoms
5.
Reading
Down
guaranteed
by
the
Charter
! Reading
down
is
the
appropriate
remedy
when
a
statute
will
bear
2
interpretations,
one
of
which
would
offend
the
Charter
and
the
other
of
which
!
Standing
would
not.
In
that
case,
a
court
will
hold
that
the
latter
interpretation,
which
is
o Standing
to
apply
for
a
remedy
under
s
24(1)
is
granted
to
“anyone”
normally
a
narrower
one,
(hence
the
reading
down)
is
the
correct
one.
When
a
whose
Charter
rights
have
been
infringed
or
denied
statute
is
read
down
to
avoid
a
Charter
breach
there
is
no
holding
of
invalidity
o S
24(1)
contemplates
that
that
it
is
the
applicant’s
own
rights
that
have
been
infringed
or
denied
o In
Minister
of
Justice
v
Borowski,
the
SCC
granted
standing
to
an
anti-‐
abortion
activist
to
bring
an
action
for
a
declaration
that
the
Criminal
Page
82
of
86
Code’s
abortion
provisions
were
unconstitutional.
Those
provisions
evidence
obtained
in
breach
of
the
Charter
also
falls
into
the
defensive
could
never
have
applied
to
the
applicant,
who
neither
a
doctor
nor
a
category,
but
the
exclusion
of
evidence
is
subject
to
a
special
set
of
woman,
but
he
was
granted
standing
nevertheless.
This
illustrates
that
rules
under
s
24(2)
the
availability
of
a
declaration
of
invalidity
under
s
52(1)
is
governed
o They
also
include
“affirmative
remedies,
such
as
ordering
a
province
by
more
generous
standing
requirements
than
are
the
remedies
to
provide
state-‐
funded
counsel
to
an
indigent
litigant
(New
authorized
by
s
24(1)
Brunswick
v
G.(J.))
,
ordering
the
return
of
good
improperly
seized
(Champon)
or
a
mandatory
injunction
requiring
positive
action
!
Apprehended
Infringements
o S
24(1)
stipulates
that
the
applicant’s
rights
“have
been”
infringed
or
o It
has
been
suggested
that
the
court’s
discretion
should
be
governed
denied,
which
contemplates
that
the
infringement
has
occurred
at
the
by
3
factors:
each
case
presents
own
case
by
case
careful
analysis
time
of
the
application.
It
does
not
authorize
an
application
in
respect
i. The
redress
of
the
wrong
suffered
by
the
applicant;
of
a
merely
apprehended
future
infringement
ii. The
encouragement
of
future
compliance
with
the
Constitution;
o HOWEVER,
it
seems
to
be
generally
accepted
that
the
imminent
threat
and
of
a
Charter
violation
will
satisfy
s
24(1).
For
example,
s
24(1)
will
iii. The
avoidance
of
unnecessary
interference
with
the
exercise
of
authorize
a
remedy
for
English-‐
speaking
parents
who
are
denied
by
governmental
power;
statute
their
Charter
right
under
s
23
to
send
their
children
to
an
iv. the
ability
of
the
court
to
administer
the
remedy
awarded.
But
English-‐
speaking
school,
even
if
the
application
is
made
before
the
each
case
will
present
its
own
unique
considerations.
school
year
has
started,
and
therefore
before
any
parent’s
child
has
actually
been
refused
admission:
Que
Assn.
of
Protestant
School
Bds
Declaration
o
=
a
remedy
that
declares
the
legal
position,
but
does
not
actually
order
!
Court
of
Competent
Jurisdiction
the
defendant
to
do
anything
o S
24(1)’s
remedies
may
be
granted
only
by
a
“court
of
competent
o A
simple
declaration
that
the
government
is
in
default
of
its
Charter
jurisdiction”.
(section
52(1)
can
be
invoked
by
any
court
or
tribunal)
duties
would
almost
invariably
be
obeyed,
and
would
therefore
usually
o a
superior
court,
which
is
a
court
of
general
jurisdiction,
is
always
a
be
an
effective
remedy
court
of
competent
jurisdiction:
R
v
Smith
o a
trial
court,
even
if
it
is
not
a
superior
court,
is
a
court
of
competent
Damages
jurisdiction
to
hear
an
application
for
a
remedy
that
relates
to
the
o The
award
of
damages
is
sometimes
an
appropriate
and
just
remedy
conduct
of
the
trial,
for
example,
the
exclusion
of
evidence
that
has
for
a
breach
of
the
Charter
(Vancouver
c
Ward
2010)
been
obtained
in
violation
of
the
Charter
or
a
stay
of
proceedings
that
o Vancouver
City
v
Ward
have
gone
on
for
an
unreasonable
time
! Based
on
his
appearance,
police
officers
mistakenly
identified
o an
administrative
tribunal
is
a
court
of
competent
jurisdiction
if
its
W
as
the
would-‐be
pie
thrower,
chased
him
down
and
constituent
statutes
give
it
power
to
apply
the
law
and
the
power
over
handcuffed
him.
W,
ehp
loudly
protested
his
detention
and
(1)
the
parties
to
the
dispute
(2)
the
subject
matter
of
the
dispute
and
created
a
disturbance,
was
arrested
for
breach
of
the
peace.
(3)
the
Charter
remedy
that
is
sought:
Weber
He
was
the
then
strip
searched
and
his
car
was
impounded.
The
police
had
not
grounds
to
charge
him
so
he
was
released
! Range
of
Remedies
4.5
hours
after
his
arrest
o Subject
to
the
important
qualification
that
the
remedy
must
be
! The
provinces
strip
search
and
the
city’s
vehicle
seizure
appropriate
and
just
in
all
the
circumstances
of
the
case,
there
is
no
violated
W’s
right
to
be
free
from
unreasonable
search
or
limit
to
the
remedies
that
may
be
ordered
under
s
24(1)
seizure
under
s
8
of
the
Charter
o They
include
“defensive”
remedies,
where
the
court
nullifies
or
stops
! The
plaintiff
was
awarded
$5000
because
of
the
strip
search
some
law
or
act,
for
example,
by
dismissing
a
charge,
staying
a
and
only
a
declaration
for
the
seizure
of
his
vehicle
proceeding,
quashing
a
search
warrant
or
a
committal
or
a
conviction,
! Goals
stated
for
awarding
damages:
(1)
compensation,
(2)
deterring
enjoining
an
act,
or
declaring
a
law
to
be
invalid.
The
exclusion
of
future
violations,
(3)vindicate
charter
rights.
Page
83
of
86
The
language
of
s
24(1)
is
broad
enough
to
include
the
remedy
of
constitutional
Exclusion
of
evidence
damages
for
breach
of
a
claimant’s
Charter
rights
if
such
remedy
is
found
to
be
o Evidence
that
has
been
obtained
in
breach
of
the
Charter
may
be
appropriate
and
just
in
the
circumstances
of
a
particular
case.
excluded
as
a
remedy
for
the
Charter
breach,
bit
this
remedy
is
regulated
by
s
24(2),
which
provides
that
the
evidence
shall
only
be
STEPS
TO
DETERMINING
DAMAGES:
excluded
if
its
admission
“would
bring
the
administration
of
justice
1. The
first
step
in
the
inquiry
is
to
establish
that
a
Charter
right
has
been
into
disrepute”
breached
o Evidence
that
has
been
obtained
in
compliance
with
the
Charter
is
NOT
2. The
second
step
is
to
show
why
damages
are
a
just
and
appropriate
remedy,
covered
by
s
24(2)
and
yet
in
some
situation
the
exclusion
of
the
having
regard
to
whether
they
would
fulfill
one
or
more
of
the
related
functions
evidence
will
be
an
appropriate
and
just
remedy
under
s
24(1)
of
compensation,
vindication
of
the
right,
and/or
deterrence
of
future
breaches
3. Once
the
claimant
has
established
that
damages
are
functionally
justified,
the
rd
state
has
the
opportunity
to
demonstrate,
at
the
3
step,
that
countervailing
Remedies
outside
s
24(1)
factors
defeat
the
functional
consideration
that
support
a
damage
award
and
render
damages
inappropriate
or
unjust.
! Not
always
necessary
for
a
court
to
rely
on
s
24(1)
to
remedy
a
Charter
! Countervailing
considerations
include
the
existence
of
alternative
breach
remedies.
In
some
situations,
the
state
may
establish
that
an
award
of
! For
example,
in
exercising
a
statutory
discretion,
a
court
may
properly
be
Charter
damages
would
interfere
with
good
governance
such
that
influenced
by
a
relevant
Charter
breach
damages
should
not
be
awarded
unless
the
state
conduct
meets
a
! R
v
Nasogaluak
2010:
minimum
threshold
of
gravity.
o Facts:
accused
had
pleaded
guilty
and
been
convicted
of
impaired
4. If
the
state
fails
to
negate
that
the
award
is
“appropriate
and
just”,
the
final
driving
and
fleeing
from
the
police,
offences
that
would
normally
step
is
to
assess
the
quantum
of
the
damages
attract
a
sentence
of
imprisonment.
! To
be
“appropriate
and
just”,
an
award
of
damages
must
represent
a
o Instead
trial
judge
granted
him
a
12-‐month
conditional
discharge
meaningful
response
to
the
seriousness
of
the
breach
and
the
coupled
with
a
12
month
driving
prohibition.
Police
had
used
excessive
objectives
of
s
24(1)
damages
force
in
making
the
arrest
and
in
preventing
flight,
and
inflicted
injuries
o Where
the
objective
of
compensation
is
engaged,
the
concern
on
the
accused.
is
to
restore
the
claimant
to
the
position
he
or
she
would
have
o Trial
judge
held:
police
actions
were
a
breach
of
the
accused’s
s
7
right
been
in
had
the
breach
not
been
committed
to
security
of
the
person
and
a
reduced
sentence
was
an
appropriate
o With
the
objectives
of
vindication
of
the
right
and
deterrence,
and
just
remedy
for
the
breach
under
s
24(1)
the
appropriate
determination
is
an
exercise
in
rationality
and
o SCC:
agreed
there
was
a
breach
of
s
7
which
justified
a
reduced
proportionality.
Generally,
the
more
egregious
the
breach
sentence
but
the
court
held
the
trial
judge
had
been
wrong
to
rely
on
s
and
the
more
serious
the
repercussions
on
the
claimant,
the
24(1)
as
a
justification
for
the
reduced
sentence
higher
the
award
for
vindication
or
deterrence
will
be
o Sentence
reduction
was
not
an
appropriate
remedy
under
s
24(1),
except
in
the
exceptional
case
where
it
was
the
“sole
effective
• In
the
end,
s
24(1)
damages
must
be
fair
to
both
the
claimant
and
the
remedy”
for
a
Charter
breach.
However,
under
normal
sentencing
state.
principles,
a
Charter
breach
that
related
to
the
circumstances
of
the
offence
or
the
offender
could
properly
be
taken
into
account
in
Costs
sentencing.
o The
award
of
costs
is
sometimes
an
appropriate
and
just
remedy
for
o In
this
case,
the
police
breach
of
the
accused’s
charter
rights
was
those
Charter
breaches
that
cause
an
inconvenience
or
delay
to
a
properly
taken
into
account
in
fixing
the
accused’s
sentence
without
litigant
the
need
to
invoke
s
24(1).
o COURT
UPHELD
THE
REDUCED
SENTENCE
Page
84
of
86
Appeals
! Section
24(1)
does
not
authorize
an
appeal
from
the
decision
of
a
court
of
! The
court
looked
at
the
language
of
section
32
and
found
that
it
does
not
competent
jurisdiction
limit
to
only
positive
acts.
It
is
not
only
to
protect
against
encroachment
on
! The
existence
of
a
right
of
appeal
will
depend
upon
the
rules
of
the
court
to
rights
or
the
excessive
exercise
of
authority,
as
McClung
suggested,
rather
it
is
which
s
24(1)
application
was
made.
a
tool
for
citizens
to
challenge
the
law
in
all
its
forms.
Legislative
Enforcement
VANCOUVER
(CITY)
V
WARD,
2010
SCC
27,
[2010]
2
SCR
28
! Federal
Parliament
and
the
Provincial
Legislatures,
acting
within
their
own
FACTS:
legislative
jurisdictions,
are
of
course
free
to
make
whatever
provision
they
• Vancouver
and
British
Columbia
Police
violated
the
Charter
rights
of
choose
for
the
better
enforcement
of
Charter
rights.
But
the
Charter
of
Rights
does
not
confer
any
new
legislative
power.
Section
31
declares
that
the
claimant
due
to
an
unreasonable
search.
“nothing
in
this
Charter
extends
the
legislative
powers
of
any
body
or
HELD:
authority”
• As
a
result,
the
trial
judge
awarded
the
complainant
damages
for
! It
is
clear
from
s
31
of
the
Charter
that
no
similar
remedial
or
enforcement
the
Charter
breaches.
power
in
the
federal
Parliament
is
to
be
inferred
from
the
provisions
of
the
• In
this
case,
the
Supreme
Court
of
Canada
(SCC)
considered
whether
Charter.
government
actors
can
be
made
to
pay
financial
damages
to
! Enforcement
of
the
Charter
is
the
function
of
the
courts,
by
virtue
of
s
52(1)
individuals
after
infringing
upon
their
rights
under
the
Canadian
or
s
24
Charter
of
Rights
and
Freedoms.
• The
Supreme
Court
wrote,
“damages
may
be
awarded
REQUIRED
CASES
FOR
REMEDIES
for
Charter
breach
under
s.
24(1)
where
appropriate
and
just,”
and
that
in
this
case,
they
were
justified
in
giving
damages
for
the
illegal
search
VRIEND
v.
ALBERTA
[1998]
• Ward
suggests
that
section
24(1)
damages,
like
any
good
Charter
FACTS:
formulation,
are
awarded
based
on
a
two-‐stage,
multi-‐part
test.
! The
plaintiff
who
had
been
discharged
from
his
employment
by
reason
of
his
o First,
of
course,
it
will
be
for
the
plaintiff
to
establish
that
his
homosexuality.
The
act
prohibited
discrimination
on
various
grounds
but
didn’t
or
her
Charter
rights
have
been
infringed.
cover
sexual
orientation.
He
claimed
that
there
was
no
recourse
due
to
the
o Second,
and
more
substantially,
the
plaintiff
must
OMISSION
of
sexual
orientation
in
the
labour
act.
demonstrate
that
damages
will
fulfill
one
or
more
of
the
! SC
reviewed
Alberta’s
Individual
Rights
Protection
Act,
which
prohibited
discrimination
objects
of
s.
24(1)
damages:
HELD:
1. compensating
the
claimant
for
loss
and
suffering;
! The
court
agreed
that
the
omission
of
sexual
orientation
from
the
Act
was
a
2. vindicating
the
right
by
emphasizing
its
importance
denial
of
the
plaintiff’s
equality
rights.
Held
that
the
constitutional
defect
be
and
the
gravity
of
the
breach;
and
cured
by
reading
into
the
statutory
lists
of
grounds
of
prohibited
3. deterring
state
agents
from
committing
future
discrimination
the
words
“sexual
orientation”
breaches.
! Although
severance
takes
away
words
that
the
legislative
body
enacted,
and
• Ward
represents
a
step
forward
in
the
cause
for
state
accountability
reading
in
adds
words
that
the
legislative
body
did
not
enact,
these
radical
and
protection
of
civil
liberties
by
recognizing
a
civil
action
against
results
need
not
be
other
than
temporary
government
for
constitutional
breach
o It’s
always
open
to
the
legislative
body
to
enact
a
new
legislation
if
the
legislators
are
not
content
with
the
scheme
as
amended
by
the
courts.
In
this
sense,
the
democratic
legislative
process
retains
the
last
word.
Page
85
of
86
CHARTER
ANSWER
STRUCTURE
a. Is
the
limit
“prescribed
by
law”?
(Consider
whether
the
law
is
(1)
Application
of
the
Charter:
s
32,
Constitution
Act,
1982
accessible,
precise
and
not
vague.
Re:
accessibility,
a
statute
or
! Does
the
Charter
apply
in
this
situation?
regulation
suffices:
Dolphin
Delivery.
Re:
precision
and
vagueness,
o GOVERNMENT
ACTION
make
a
judgment
call)
! S
32-‐
this
charter
applies
i. If
its
statute-‐
its
prescribed
by
aw
o To
the
parliament
and
government
of
Canada
in
respect
of
all
ii. If
its
common
–
depends-‐
make
a
call
(dolphin
delivery)
matters
within
the
authority
of
parliament…
1. Common
law
does
influence
the
way
a
charter
is
o To
the
legislature
and
government
of
each
province
interpreted
and
therefore
it
indirectly
applies
to
the
common
law
(Hill
v
Church
f
Scientology)
(2)
Is
there
an
override
provision
in
the
law:
s
33
! Note:
Only
mention
this
if
there
is
an
impugned
Act
(legislation).
Does
not
! The
next
step
is
to
apply
the
Oakes
test:
apply
to
government
actions.
! Applies
if
your
challenging
the
validity
of
act
b. Does
the
legislation/action
have
a
sufficiently
pressing
and
substantial
! 5
year
limit
period
then
re-‐apply
for
the
act
to
stay
fine
even
if
it
breaches
objective?
charter
c. Does
the
legislation/action
pass
the
proportionality
test?
i. Is
the
limit
rationally
connected
to
the
legislative
purpose?
(3)
Infringement
of
a
Charter
right
(the
law’s
means
must
contribute
to
the
achievement
of
its
! The
onus
is
on
the
applicant/claimant
to
demonstrate
that
an
infringement
objectives)
has
occurred
(presumption
of
constitutionality)
ii. Does
the
limit
minimally
impair
the
right?
(Means
chosen
must
be
the
least
restrictive
manner
of
accomplishing
the
a.
What
is
the
purpose
or
effect
or
the
law/action
(Big
M)
objective
of
the
impugned
provisions.
Requires
a
b.
Does
its’
purpose
or
effect
infringe
a
Charter
right?
[Note:
This
is
where
consideration
of
alternatives
available
to
government.
In
you
outline
the
law
of
the
relevant
Charter
right
in
relation
to
how
what
the
making
this
assessment,
the
courts
accord
the
legislature
a
right
protects,
e.g.
does
the
effect
of
the
legislation
infringe
freedom
of
measure
of
deference,
i.e.
there
is
a
margin
of
appreciation)
religion?
To
answer
that,
first
must
define
what
“religion”
is
as
per
s
2(a)]
(Edwards
Books)
i.
language
s
133
iii. Is
the
law
proportionate
in
its
effect?
In
other
words,
when
ii.
aboriginal
s
35
one
balances
the
harm
done
to
the
claimants’
(list
the
right
iii.
religion
s
2(a)-‐
infringed)
against
the
benefits
associated
with
(state
what
the
iv.
s
7
–
life,
liberty
and
security
of
person
impugned
law
essentially
does),
is
the
limit
on
the
right
v.
equality
s
15
proportionate
in
effect
to
the
public
benefit
conferred
by
the
c.
Is
the
infringement
more
than
trivial?
(No
Charter
right,
including
limit?
freedom
of
religion,
is
absolute.
-‐
Salutary
effects?
*
where
the
effect
of
a
law
on
a
charter
is
trivial
or
insubstantial,
there
is
-‐
Deleterious
effects?
no
breach
of
the
Charter
(r
v
Jones)
–
say
this
always.!
(Charter
prohibits
-‐
Balancing
the
salutary
and
deleterious
effects
only
burdens
or
impositions
on
religious
practice
that
are
non-‐trivial)
(R
v
of
the
law,
I
conclude
that
the
impact
of
the
limit
Jones)
on
(name
the
infringed
right)
(is/is
not)
proportionate.
(4)
Section
1
analysis
(Oakes)
! Burden
shifts
to
legislature/Parliament/government
to
justify
violation
d.
Conclusion?
(e.g.,
Based
on
the
analysis
above,
I
conclude
The
Charter
does
not
guarantee
rights
absolutely.
The
violation
may
be
that
I
conclude
that
the
limit
on
____
is/is
not
justified
under
lawful
if
it
results
in
a
reasonable
limit,
prescribed
by
law,
that
is
s
1)
demonstrably
justified
in
a
free
and
democratic
society.
Page
86
of
86
(5)
Overall
conclusion
! Therefore,
_____
(does/does
not)
offend
the
Charter,
and
is
therefore
constitutionally
(valid/invalid)
(6)
Remedies:
ss
24
&
52
! The
next
step
would
be
a
Court imposing a remedy