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PART 1

1. Hospitals are bound to comply with the Charter.

This statement is partly true. The case of Eldridge v British Columbia (Attorney General) (1997)
discussed whether a hospital was bound by the Charter. The Court deviated from the position
that the Charter applies to the exercise of statutory authority regardless of whether the actor is
part of government or is controlled by the government. In Eldridge the court held that the
Charter was applicable despite the absence of any power of compulsion. The SCC pointed to
BC’s Hospital Service Act, which funded the provision of hospital services, and held that the
hospital was “implementing a specific government policy or program”. This case was
distinguished from Stoffman v Vancouver General Hospital (1990), where it was decided that
although established and empowered by state, and undeniably performing a public service, the
hospital did not exercise any powers of compulsion in providing medical services, and was not
controlled by government, therefore, the hospital was not bound by the Charter. Eldridge was
distinguished based on the fact that Stoffman was about day-to-day operations and this case was
about a specific government policy or program. Hogg submits that this case is inconsistent with
Stoffman, and the absence of statutory compulsion should have led to the conclusion that the
Charter did not apply.

2. The Prime Minister is Canada’s head of state

False. Canada’s head of state is the Governor General. According to the preamble of the
Constitutional Act 1867, the new nation was to have “a Constitution similar in principle to that of
the United Kingdom”. The head of state in the UK is the King or Queen. S.9 of the
Constitutional Act 1867 vests general executive authority for Canada in “the Queen”, and confers
several specific powers on a “Governor General”.

3. The “notwithstanding clause” in s.33 of the Charter enables legislatures to pass laws that
will operate even though they conflict with other provisions of the Canadian constitution.

Partly true/incomplete. S.33(1) enables Parliament or a Legislature to override s.2 or s7-s15 of


the Charter. If a statute contains an express declaration that it is to operate notwithstanding a
provision included in s.2 or s7-s15 then by virtue of s33(2) the statute will operate free from the
invalidating effect of the Charter provision. In Ford v Quebec (Attorney General) (1988) it was
held that s.33 does not apply retroactively.

4. The provincial legislatures of Manitoba, New Brunswick and Quebec are the only three
provincial legislatures subject to constitutional requirements that they pass laws in both
English and French.

True. S.133 Constitution Act 1867 stats that the Acts of the legislatures of Quebec shall be
printed and published in both English and French. S.23 of the Manitoba Act 1870 provides for
the use of English and French in the Legislature (and courts) of Manitoba in terms very similar to
s.133. Charter rights ss17-19 apply to New Brunswick so that it is also in the same position as
Quebec and Manitoba concerning passing laws in both English and French.
5. The aboriginal rights of Metis peoples recognized and affirmed by s.35 of the
Constitution Act 1982 include practices, customs or traditions that were defining features
of Metis societies at the time of first contact with Europeans.

In R v Van der Peet (1996) the SCC articulated the legal test that was used to identify an
“existing aboriginal right within the meaning of s.35”. “In order to be an aboriginal right an
activity must be an element of a practice, custom or tradition integral to the distinctive culture of
the aboriginal group asserting the right”. In order for the practice to be “integral”, the practice
must be “of central significance” to the aboriginal society: it must be a defining characteristic of
the society, “one of the things that made the culture of the society distinctive”. The practice must
have been developed before “contact” that is, “before the arrival of Europeans in North
America”. The practice can evolve over the years as the result of contact but do not qualify
contemporary practices that developed “solely as a response to European influences”. The time
frame in the definition (before “contact”) does not work for Metis rights, because Metis people
did not exist before contact. In R v Powley (2003), the Court held that, “for Metis claimants of
aboriginal rights, the focus on European contact had to be moved forward to ‘the time of
effective European control’ – apart from this shift in time, the same Van der Peet definition was
to be used (Hogg, p28-25). Therefore, the statement is true.

PART 2
1. The terms and conditions of employment of flight attendants working for airlines

Parliament alone. The regulation of labour relationship over most of the economy is within
provincial competence under property and civil rights (Constitution Act 1867, s.92(13)).
However, there is still a substantial federal presence in this field. The court has approached cases
on the basis that provincial competence over labour relations is the rule, and federal competence
is the exception. The federal Parliament has the power to regulate employment in works,
undertakings or businesses within the legislative authority of the federal Parliament. In Quebec
(Attorney General) v Canadian Owners and Pilots Association (2010) the Court held that the
location of aerodromes was part of the essential “core” of the federal power over aeronautics,
and the provincial law could not have the effect of imparting that core. Therefore, Parliament
alone can pass laws in relation to employment of flight attendants working for airlines as it falls
within the federal power of aeronautics.

2. Pollution in marine waters the lie within the boundaries of a province

The opening words of s.91 provides that the federal Parliament can “make laws for peace, order
and good government of Canada”. In the Canada Temperance case, Viscount Simon established
the definition of the “national concern” branch of POGG. The test is whether the matter of the
legislation “goes beyond local or provincial concern or interests and must from its inherent
nature be the concern of the Dominion as a whole”. In Reference re Anti-Inflation Act (1976) it
was held that in order to qualify as a matter coming within national concern, a topic must be
“distinct”: it must have “a degree of unity that makes it indivisible, an identity which makes it
distinct from provincial matters and a sufficient consistence to retain the bounds of form”. In R v
Crown Zellerbach Canada (1988) the Court held that marine pollution satisfied the national
concern test.
3. Regulation of the legal profession
Provincial legislatures. S.92(14) states that the powers of the provincial legislatures include “The
administration of justice in the province, including the constitution, maintenance, and
organization of provincial courts, both civil and of criminal jurisdiction, and including procedure
in civil matters in those courts.” In Krieger v Law Society of Alberta (2002), the SCC held that as
Crown prosecutors, whether federal or provincial, who practiced in the province were all
members of the Law Society, they came within the jurisdiction of the Law Society to enforce
professional standards of behaviour.

4. Obligations set out in international treaties signed and ratified by Canada

Under s.132 Constitution Act 1867 “The Parliament and Government of Canada shall have all
Powers necessary or proper for performing the Obligations of Canada or of a Province thereof, as
Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire
and such Foreign Countries.” The POGG power under s.91 is a residual power that fills the
lacunae or gaps in the scheme of distribution of power. In the Radio Reference (1932) the Privy
Council held that the POGG power under s.91 filled the gap left by s.132 concerning
Parliamentary control over performing the obligations of Canada forming under international
treaties (Hogg, p17-6)

5. The promotion and sale of insurance by banks

Both. In the 19th century both level of governments started to regulate insurance. In Citizens
Insurance v Parsons (1881) the PC helped an Ontario statute requiring certain conditions be
included into every policy of fire insurance entered in Ontario. They held that of the terms of
contracts came under property and civil rights in the province (s.92(13)) and did not come within
trade and commerce (s.91(2)). Federal power continues to regulate a substantial part of the
insurance industry under statutes covering British and foreign companies, federally-incorporated
companies and on a voluntary basis, provincially-incorporated companies. In Canadian Western
Bank v Alberta (2007) the issue was whether Alberta’s Insurance Act could constitutionally
apply to the banks, and the answer was yes. Interjurisdictional immunity would apply only if a
“core competence” of Parliament or “a vital or essential part of an undertaking it duly
constitutes” would be impaired by provincial law. It was held that the vital part of an undertaking
should be limited to the functions that are essential, indispensable, and necessary – the promotion
of insurance by banks could not be qualified as such.

6. Retail sales of tobacco products to minors

Both. In Rothmans, Benson & Hedges Inc. v Saskatchewan (2005) the Federal Tobacco Act
prohibited the promotion of tobacco products, except as authorized elsewhere in the Act. The Act
went on to say that “a person may display at retail, a tobacco product”. The Saskatchewan
Tobacco Control Act banned the display of tobacco products in any premise in which persons
under the age of 18 years of age were permitted. The Court held that the retailer could comply
with both laws, either by refusing to admit persons under the age of 18 or by not displaying the
tobacco products. It was also held that the provincial law did not frustrate the purpose of the
federal law, and therefore, was not rendered inoperative by paramountcy.
PART 3

What provisions in Part V of the Constitution Act, 1982 could be cited in favour of the
federal government’s position?

s.44 – “Subject to sections 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.”

What provisions in Part V of the Constitution Act, 1982 could be cited in favour of the
opposition’s position?

s.38 sets out the general amending procedure for amendments not otherwise provided for (as
well as for amendments listed in s.42) requiring the assents of federal parliament and 2/3 of the
provinces representing 50% of the population.
s.42(1) states, “An amendment to the Constitution of Canada in relation to the following matters
may be made only (emphasis added) in accordance with subsection 38(1). S.42(1)(a) states “the
principle of proportionate representation of the provinces in the House of Commons prescribed
by the Constitution of Canada”.

In your view, what is the legally correct position regarding which amending procedure in
Part V of the Constitution Act, 1982 is applicable?

S.38 applies for the residual class of amendments which are not covered by the more specific
procedures of ss. 41, 43, 44 and 45 (Hogg, 4-17). In addition, s.42 requires that the general
amending procedure of s.38(1) be used for six defined classes of amendments to the Constitution
of Canada. According to Hogg, the principle has never been applied rigidly. In Campbell v
Canada (1988) it was held that a provision to protect the representation of declining provinces
should not be regarded as offending “the principle” of proportionate representation, and did not
require a seven-fifty amendment under s.42(1)(a). The Act was to be characterized as a law in
relation to the House of Commons; and it was a valid exercise of the federal Parliament’s
unilateral amending power under s.44 (Hogg, 4-22).

In Re Senate Reform (2014) the Court held that, in addition to the matters expressly excluded
from s.44, any other “changes that engage the interests of the provinces” (a term which is never
defined in the opinion) are impliedly excluded from s.44 (Hogg, 4-32.3).

Although s.38 has never been applied rigidly, s.42 explicitly excludes the principle of
proportionate representation of the provinces in the House of Commons from the application of
s.44. This is the only express exception to Parliament’s s.44 power over the House of Commons.
Based on this and the decision in Re Senate Reform, Bill C-22 appears to attempt to implement a
change that engages the interests of the provinces as it is directly related to the representation
each Province will have in the House of Commons. Therefore, in my view, s.38, the opposition’s
opinion, is the legally correct position regarding the amending procedure that is applicable in this
situation.
PART 4

Memo to: Canadian Muslim Congress (CMC)


From: Taran Dhanda
Re: Constitutionality of Bill C-6
Date: October 13, 2016

Issues:
1. Whether the new legal requirement to uncover one’s face prior to voting in person, as
proposed by Bill C-6, would violate s.2(a) of the Charter
2. Whether the new legal requirement to uncover one’s face prior to voting in person would
violate s.15 of the Charter

Law Analysis and Discussion of Issue 1:

s.2(a) Charter guarantees to “everyone” the “fundamental freedom” of “conscience and


religion”. The definition of freedom of religion can be found in R v Big M Drug Mart (1985)
where Dickson J. stated that it “is the right to entertain such religious beliefs as a person chooses,
the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the
right to manifest religious belief by worship and practice or by teaching or by dissemination”.
This includes religious practice and beliefs. The definition of religious practice was expanded in
the case of Syndicat Northcrest v Amselem (2004). The Court held “all that was necessary to
qualify a practice for Charter protection was that the claimant sincerely believed that the practice
was ‘of religious significance’”. This can vary from one person to another, and the test is wholly
subjective.

In Syndicat, the SCC held that in order for an infringement to be found under s.2(a) of the
Charter it must be established that: “(1) the claimant sincerely believes in a belief or practice that
has a nexus with religion; and (2) the impugned measure interferes with the claimant’s ability to
act in accordance with his/her religious beliefs in a manner that is more than trivial or
substantial”. Once the claimants have established their rights were infringed, the burden shifts to
the government in demonstrating whether the infringement can be justified under s.1 of the
Charter.

In R v Oakes, Dickson J. set out four criteria that must be met to justify infringement in a “free
and democratic society”. Step 1: Sufficiently Important Objective  this involves a 2-step
approach. First, the court must determine if the limit is “prescribed by law” and then they assess
if the purpose is “pressing and substantial”. In this case, Act are measures that are “prescribed by
law”. The government has stated that “the purpose of the proposed amendment is to safeguard
the integrity of the voting process by providing greater protection against voter fraud”.
Minimizing the risk of voter fraud seems to be a proper government purpose, therefore it is likely
this step will be passed.

Step 2 is the Rational Connection Test, which establishes that the means used to limit the law is
rationally connected to the purpose set out in Step 1. In this case, the question would be whether
requiring voters to reveal their faces before voting in person can potentially minimize the risk of
voter fraud. As the purpose is fairly broad in that is does not require the legislation to completely
eradicate voter fraud, it is just seeking greater protection against it, any legislation which could
reduce the threat of voter fraud is likely to satisfy this test.

Step 3 is the Least Drastic Means/Minimal Impairment Test. This test seeks to determine if there
is an alternative course of action the government may take which will help them achieve the
same purpose, yet will minimize or have no effect on the human right. In RJR-MacDonald
(1995) the court held “the government must show that the measure at issue impair the right of
free expression as little as reasonably possible in order to achieve the legislative objective”. The
CMC might want to suggest fingerprinting to establish identity instead, it would certainly fulfil
the government’s purpose, and is likely to be more secure than photo identification. However,
this could cause more work, in establishing a finger printing database and having those who can
adequately compare fingerprints staffed at voter polls. In Hutterian Brethren the SCC held that
the HB had a sincere religious belief protected by s.2(a). However, the SCC held that the
universal photo requirement was justified under s.1 as it served an important purpose and did not
impose a severe burden on the claimant, who could avoid the requirement by using alternative
means of transport. Similarly in this case, there are alternative methods for voting available to
those that do not wish to uncover their faces. This step is likely to be passed.

Step 4 is Proportionate Effect. “This step must require a proportionality between the effects of
the measures which is responsible for limiting the Charter right or freedom and the objective
which has been identified as sufficient importance” (Hogg, p38-43). In Hutterian Brethren the
SCC stated that the salutary effect of the public good must be weighed against deleterious effects
on the individual’s rights. In this case, protecting against voter fraud on one side, and religious
freedom of Muslim women who choose to cover their faces on the other. As there are voting
alternatives available, it is unlikely that religious freedom will outweigh the public good in this
test.

Although it is likely to be found that Muslim women hold a sincere religious belief protected by
s.2(a), the requirement to uncover one’s face prior to voting will be upheld as justifiable under
s.1. It will serve an important purpose to safeguard the voting process against fraud, and will not
impose a sever burden on Muslim women as they could use one of the alternative methods of
voting.
Law Analysis and Discussion of Issue 2:

s.15 Charter guarantees “every individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law without discrimination and, in particular,
without discrimination based on race, nation or ethnic origin, colour, religion, sex, age or mental
or physical disability”. Hogg explains that in R v Andrews (1989), it became clear that s.15 was a
prohibition on discrimination, involving the imposition of disadvantage on an individual based
on characteristics listed or analogous. Further, according to R v Kapp (2008) it is necessary for
an equality claimant to establish, in addition to disadvantage, “discrimination”, based on a listed
or analogous ground.

Religion and sex are both grounds of discrimination expressly prohibited by s.15. A law may be
indirectly discriminatory on its application, as it appears Bill C-6 will be. In this case, on the face
of it, the Bill is not discriminatory, however, in its application it would discriminate against
Muslim women, the primary group of individuals who have the sincerely held religious belief
that requires them to cover their faces in public. In Andrews it was held that both indirect and
direct discrimination is covered by s.15 and do not need to show that the law passed with the
intention of discrimination. Further, Gibson (Hogg, 55-51) points out that it is a necessary
corollary of the rule that discrimination may be indirect or unintended that a law may have to
make reasonable accommodation for those who by reason of religious affiliation are
discriminated against by otherwise neutral laws.

S.1 of the Charter provides that all the Charter rights are subject to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic society. S.1 applies
to laws that infringe s.15 in the same way as laws that infringe other rights; however, since R v
Law introduced the element of human dignity in s.15, it leaves no role for s.1 (Hogg, 55-53). It is
obviously difficult to justify a law that imposes a disadvantage on the basis of a listed or
analogous ground that also impairs human dignity. When the court uses the “correspondence”
factor to decide the issue of human dignity, it considers whether the purpose of the law is
legitimate and the use of a listed or analogous ground to accomplish the purpose is reasonable –
this inquiry is really a loose form of the inquiry into justification under s.1. Hogg assets that even
the court’s retraction of the human dignity requirement in R v Kapp does not restore the role of s.1 as
the substitution of discrimination appears to be very similar to human dignity.

Conclusion

Therefore, in my view, it is likely that the law as proposed by Bill C-6 will violate s.2(a), however it will
be upheld and justified under s.1.

In addition, it is likely that the law will violate s.15 and unlikely to be upheld under s.1.