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1. Constitutional Note- 128

Canadian Public and Constitutional Law (York University)

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I. BASIC CONCEPTS

1. SOURCES AND NATURE OF THE CONSTITUTION


Hogg. Chapter 1. “Sources”
1. Definition of Constitutional Law (pg. 1)
 constitutional law is the law prescribing the exercise of power by the organs of the state
 constitutional law explains which organs can exercise legislative power (making new laws), executive
power (implementing the laws), and judicial power (adjudicating disputes)
 constitutional law also lays out what the limitations are on those powers
 because of rule of law (whereby government officials, too, must act in accordance with the law),
the Parliament of Canada and the Legislatures of the provinces have to stay within the powers
allocated to them by the constitution
 laws enacted in breach of the constitution may be challenged in courts by citizens, and can be struck
down by the courts if they are found to be outside the limits laid down by the constitution
2. Constitution Act, 1867 (pg. 2)
 there is no single document in Canada (unlike the US) that can be properly called a constitution – the
closest thing is the British North America Act, 1867 (renamed the Constitution Act, 1867 in 1982)
 the BNA Act established the rules of federalism allocating governmental power between the central
institution and the provincial institution – however, at this point, Canada wasn’t an independent
state, but rather still a colony of the United Kingdom
 because the BNA Act wasn’t comprehensive like the Constitution of the US, much of Canada’s
constitutional law continued to be found in a variety of sources outside the BNA Act
 when Canada adopted the Canadian Bill of Rights in 1960, it was not an amendment to the BNA Act,
but rather it was enacted as a federal statute and made applicable only to federal law
 The Constitution Act, 1982 added the Canadian Charter of Rights and Freedoms (i.e.; Canada’s
constitutional bill of rights) making it applicable to both provincial and federal laws, and
entrenching it (i.e.; making it alterable only by way of constitutional amendment)

3. Constitution Act, 1982 (pg. 6)


 the changes made to Canadian constitutional law was: a domestic (as opposed to in the hands of the
United Kingdom) amending formula being adopted; authority over Canada of the UK was
terminated; Charter of Rights was adopted
 the Canada Act 1872 was a statute of the UK Parliament terminating its authority over Canada
 the Constitution Act, 1982, was Schedule B of the Canada Act 1982, and contained the Charter of
Rights
 the name of the BNA Act was changed to the Constitution Act, 1867

4. Constitution of Canada (pg. 7)


 the phrase “Constitution of Canada” is defined in s. 52(2) of the Constitution Act, 1982, whereby it
included 3 categories of instruments:
 the Canada Act, 1982 (including the Constitution Act, 1982 – the latter being Schedule B of the
former) s. 52(2)(a)
 30 Acts and orders as listed in the Schedule to the Constitution Act, 1982 (s. 52(2)(b))
 in O’Donohue v. The Queen (2003) (following the New Brunswick Broadcasting case), an
unscheduled statute was added to the Constitution of Canada
 the amendments which may, in the future, be made to any of the instruments in s. 52(2)(a) or s.
52(2)(b) (s. 52(2)(c))
 s. 52(2) is needed to give content to the supremacy clause and entrenchment clause of the
Constitution Act, 1982
 s. 52(1) gives priority to the Constitution of Canada where it is inconsistent with other laws
 s. 52(3) entrenches the Constitution of Canada so that it cannot be amended by ordinary legislative
action, but only by the special amending procedures laid down by Part V of the Constitution Act, 1982
 Canada’s evolution from colony to nation has denied it any single comprehensive constitutional
document
 although the closest such things are the Constitution Act, 1867 and the Constitution Act 1982,
they don’t necessarily include all of the rules of Canadian constitutional law, these rules are found
in a variety of places
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5. Imperial Statutes (pg. 12)


 both the Constitution Act 1867 and the Constitution Act 1982 are imperial statutes – i.e.; statutes
enacted for Canada by the UK Parliament in its role as the imperial Parliament; they, along with 17
other imperial statutes listed in 52(2), are within the definition of the Constitution of Canada
 imperial statutes that are not part of the constitution of Canada no longer have any special status in
Canada (i.e.; constitutional status, whereby they would only be amendable by way of the amending
procedures laid out in the Constitution Act), and as such can be amended or repealed by Parliament
or Legislature – depending on which level of government has authority over the subject matter of the
imperial statute in question

6. Canadian Statutes (pg. 12)


 the 7 Canadian statutes included in s. 52(2) of the Constitution Act 1982 are supreme over other
federal statutes and are unalterable except by use of the amending procedures of the Constitution
Act, 1982
 some other statutes, although not included in the definition of constitution of Canada, because they
establish or regulate some of the important institutions of the country, are also constitutional
 however, statutes that are not included in the definition of the constitution (by way of s. 52(2))
may be repealed or amended by ordinary legislative processes

7. Parliamentary Privilege (pg. 13)


 parliamentary privileges are the set of powers and privileges possessed by the federal houses of
parliament and the provincial legislative assemblies that are necessary to their capacity to function
as legislative bodies – it is generally found as a branch of the common law that is not contained in
any statute or other written instrument
 unlike all other powers of the legislative bodies that must be exercised in conformity with the Charter
of Rights, parliamentary privilege is part of the constitution of Canada and is not subject to the
charter of rights (New Brunswick Broadcasting Co. v. Nova Scotia (1993))

8. Case Law (pg. 17)


 courts have to interpret the Constitution Acts (and other constitutional statutes), and their decisions
constitute precedents for later cases
 although their role is of interpretation only, the effect of a series of precedents will, nevertheless,
constitute an important elaboration or modification of the various constitutional statutes
 therefore, case law that interprets the Constitution Acts and other constitutional statutes , also
becomes constitutional law
 in Reference Re Secession Reference of Quebec – the SCC invoked unwritten principles of democracy,
federalism, constitutionalism, and the protection of minorities to hold that, if a province were to
decide in a referendum that it wanted to secede from Canada, the federal government and the other
provinces would come under a legal duty to enter into negotiations to accomplish the secession
 this carries the constitution of Canada way beyond the literal language of its text and the intention of
the framers, possibly trespassing into fields better left to the legislative and executive branches of the
government, nevertheless, it is an exceedingly important source of constitutional law
 the common law can always be changed by statute; and it has been so that any field developed purely
as common law has been modified by statutory intervention

9. Prerogative (pg. 18)


 prerogative is a branch of common law as it is the decisions of the courts which have determined its
existence and extent – it consists of powers and privileges accorded by the common law
exclusively/uniquely to the Crown
 since they are accorded by the common law, the exercise of prerogative powers is reviewable by the
courts
 most governmental power in Canada is exercised under statutory, not prerogative power

10. Conventions (pg. 21)


(a) Definition of Conventions (pg. 21)

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 conventions are rules of the constitution that are not enforced by the courts; they can be
described as non-legal rules that, nevertheless, regulate the working of the constitution (they
prescribe the way in which legal powers should be exercised)
 conventions are not enforceable in or by the courts; nevertheless, conventions are nearly always
obeyed by the officials whose conduct they regulate
 however, where there has been a breach of convention, no breach of law has occurred, and so
no legal remedy is available

(b) Conventions in the Courts (pg. 22)


 although conventions are not enforced by the courts, courts have recognized the existence of
certain conventions on occasion

(c) Convention and Usage (pg. 25)


 a convention is a rule that is regarded as obligatory by the officials to whom it applies
 a usage is not a rule, but merely a governmental practice which is ordinarily followed, though it
isn’t regarded as obligatory
 if it is invariably followed over a long period of time, a usage can be regarded as obligatory, and
thereby develop into a convention – the resulting convention being called a custom
 regardless, both (i.e.; usage and convention/custom) are unenforceable – the most that can be
said is that there is a stronger moral obligation to follow a convention than a usage, and that a
departure from the former will be criticized more severely than from the latter

(d) Convention and Agreement (pg. 27)


 although most conventions develop by way of long history of practice that eventually attracts a
sense of obligation or normative character, a rule of constitutional conduct that all relevant
officials agree to adopt can immediately come to be regarded as an obligatory convention

(e) Convention and Law (pg. 28)


 a convention can be transformed into law by being enacted by a statute
 a convention can also be transformed into law if it were enforced by the courts (thereby being
transformed into a rule of common law) – however, this has never been done because, by virtue of
their nature, conventions are unenforceable in courts
 however, conventions don’t exist in a legal vacuum; they presuppose the existence of the legal
powers as they regulate the way in which legal powers shall be exercised
 not only do conventions presuppose the existence of law, much law presupposes the existence of
conventions
 the purpose of conventions is to ensure that the legal framework of the constitution will be
operated in accordance with the prevailing constitutional values or principles of the period, and
they bring outdated legal powers into conformity with current notions of government
 therefore, conventions allow the law to adapt to changing political realities without the necessity
for formal amendment

(f) Convention and Policy (pg. 30)


 by way of Public School Board’s Association of Alberta v. Alberta (2000) and Ontario English
Catholic Teacher’s Association v. Ontario (2001), the court holding that no convention restricted
the policy or substance of what could be enacted by the provincial legislature in exercise of its
power to make laws in relation to education found that conventions affected only the structure of
governmental powers, not the policies to which governmental power was addressed

Reference re Secession of Quebec [1998] 2 S.C.R. 217


Facts:
 after nearly losing the Quebec referendum, and facing the prospect that another referendum on secession
would eventually be held in Quebec, the federal government came to appreciate the merit of securing a
legal ruling on the validity of a unilateral declaration of independence
 the Secession Reference (1998) was a reference by the federal government to the SCC in which the court
was asked whether Quebec could secede unilaterally from Canada
Issues:
 s. 53 of the Supreme Court Act is unconstitutional
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 even if the court’s reference jurisdiction was constitutionally valid, the questions submitted were outside
the scope of s. 53
 the questions posed were not justifiable
Held:
 the SCC invoked unwritten principles of democracy, federalism, constitutionalism, and the protection of
minorities to hold that, if a province were to decide in a referendum that it wanted to secede from
Canada, the federal government and the other provinces would come under a legal duty to enter into
negotiations to accomplish the secession
 this carries the constitution of Canada way beyond the literal language of its text and the intention of the
framers, possibly trespassing into fields better left to the legislative and executive branches of the
government, nevertheless, it is an exceedingly important source of constitutional law

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2. AMENDING PROCEDURES
Constitution Act, 1982, Part V, ss. 38-49
 the Constitution Act, 1982, introduces into the constitution a set of amending procedures which enable
the BNA Act (renamed the Constitution Act 1867 by the Constitution 1982 Act) and its amendments to be
amended within Canada, without recourse to the UK Parliament, thereby formally terminating the
authority of the UK Parliament over Canada
 the roles of the federal and provincial governments in the amendment process are now defined in precise
statutory language by way of Part V of the constitution Act, 1982 which constitutes a complete code of
legal (as opposed to conventional) rules
 ss. 38 – 49 adopt domestic amending procedures (as opposed to procedures which had to give way to the
authority of the UK Parliament)
 Part V is the “Procedure for Amending constitution of Canada” – it provides five amending procedures:
 s. 38: general amending procedure – for amendments not otherwise provided for (as well as for
amendments listed in s. 42) which require the assent of the federal Parliament as well as the seven-
fifty
 s. 41: unanimity procedure – for five defined kinds of amendments requiring the assents of the
federal Parliament and all of the provinces
 s. 43: some-but-not-all-provinces procedure – for amendment of provisions not applying to all
provinces, and requiring the assents of the federal Parliament and only those provinces affected
 s. 44: federal Parliament alone – for amending provisions relating to the federal executive and
Houses of Parliament
 s. 45: each provincial legislature alone – for amending the constitution of the province

Hogg. Chapter 4. “Amendment”


1. History of Amendment (pg. 1)
(a) Imperial Amendment (pg. 1)
 the BNA Act contained no general provisions for its own amendment – the framers thereof were
content for amendments to be enacted by the imperial parliament (i.e.; the UK parliament)
 the general idea was that the BNA Act (i.e.; the constitution) should be more difficult to amend
than, say, an Income Tax Act
 in an imperial conference in 1930, it was agreed that the UK Parliament wouldn’t enact any
statute applying to a dominion (including Canada) except at the request and with the consent of
the dominion
 this agreement, which reflected an already longstanding practice, thereby created a
constitutional convention
 in Partition Reference (1981), the SCC held that the consent of the provinces to the proposed
amendments was not required as a matter of law, but that a substantial degree of provincial
consent was required as a matter of convention
 the Constitution Act, 1982, introduces into the constitution a set of amending procedures which
enable the BNA Act (renamed the Constitution Act 1867 by the Constitution 1982 Act) and its
amendments to be amended within Canada, without recourse to the UK Parliament, thereby
formally terminating the authority of the UK Parliament over Canada
 the roles of the federal and provincial governments in the amendment process are now defined in
precise statutory language by way of Part V of the constitution Act, 1982 which constitutes a
complete code of legal (as opposed to conventional) rules

(b) The Search for a Domestic Amending Procedure (pg. 5)


 the Balfour declaration of 1926 recognized Canada as the equal of the UK, and thus that called
for the elimination of the role of the UK Parliament in Canada’s amendment process
 in 1964 (the Fulton-Favreau formula) and 1970 (the Victoria Charter formula) were agreed to by
all the provinces except Quebec – they would have brought an official/formal end to the UK
Parliament’s authority over Canada
 in the case of both formulas, Quebec had, and exercised, a veto power
 the evolution of the Constitution Act, 1982 found PM Trudeau’s formula (essentially the Victoria
Charter formula) being opposed by eight provinces (including Quebec) – instead, an alternative
formula (the Vancouver formula) was proposed whereby most amendments would require the

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agreement of the federal Parliament and two-thirds of the provinces representing 50% of the
population of all the provinces (i.e.; the seven-fifty)
 however, when it came time to accept the proposed formula, Quebec did not agree – despite
the incomplete agreement, the proposal was presented to London, and the Canada Act, 1982
came into force, granting Canada domestic amending procedures
(c) The Failure to Accommodate Quebec (pg. 7)
 the Constitution Act 1982 cured several longstanding defects in the constitution of Canada
 it also:
 adopted domestic amending procedures (ss. 38-49)
 adopted a charter of Rights (ss. 1-34)
 recognized aboriginal rights (s. 35)
 guaranteed equalization (s. 36)
 extended provincial powers over natural resources (ss. 50-51)
 defined and gave supremacy to the Constitution of Canada over other laws (s. 52)
 however, it failed to accomplish one of the goals of the constitutional reform, namely to better
accommodate Quebec within the Canadian federation
2. Part V of the Constitution Act, 1982 (pg. 12)
(a) Summary of Part V (pg. 12)
 Part V is the “Procedure for Amending constitution of Canada”
 it provides five amending procedures:
 s. 38: general amending procedure – for amendments not otherwise provided for (as well as
for amendments listed in s. 42) which require the assent of the federal Parliament as well as
the seven-fifty
 s. 41: unanimity procedure – for five defined kinds of amendments requiring the assents of
the federal Parliament and all of the provinces
 s. 43: some-but-not-all-provinces procedure – for amendment of provisions not applying to
all provinces, and requiring the assents of the federal Parliament and only those provinces
affected
 s. 44: federal Parliament alone – for amending provisions relating to the federal executive
and Houses of Parliament
 s. 45: each provincial legislature alone – for amending the constitution of the province
(b) Comparison with Australia and United States (pg. 12)
 the amending procedures of Part V apply to the amendments to the Constitution of Canada as
defined by s. 52(2) of the Constitution Act 1982 – they are not required for the amendments of
statutes or instruments that are not part of the constitution of Canada
 regardless of whether they are listed in Part V or not (e.g.; ‘the use of the English or French
language’ in s. 41, ‘the SCC’ in s. 42, ‘the composition of the SCC’ in s. 41) the corresponding
statutes, so long as they are not part of the Constitution of Canada as per s. 52(2) of the
Constitution Act 1982, can be amended by the ordinary action of the competent legislative bodies
(c) Constitution of Canada (pg. 13)
 the Charter of Rights is itself a part of the Constitution of Canada and can be amended by the
general (seven-fifty) amending procedure
(d) Charter of Rights (pg. 14)
 the Charter of Rights is itself a part of the Constitution of Canada and can be amended by the
general (seven-fifty) amending procedure
3. General Amending Procedure (s. 38) (pg. 15)
(a) Section 38(1) (pg. 15)
 s. 38(1) provides that the general procedure applies when none of the more specific procedures
(as per ss. 41, 43, 44, 45) is applicable
 the section requires that an amendment to the Constitution of Canada be authorized by a
resolution of both Houses of the federal Parliament and the resolutions of the legislative
assemblies of at least two-thirds (i.e.; 7) of the provinces so long as they represent at least 50% of
the population of all the provinces (i.e.; the seven-fifty formula)
 no single province has veto over the amendments
 it has only been successfully operated once since 1982

(b) Proclamation (pg. 16)

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 once the formalities of s. 38(1) have been met, the formal act of the amendment is accomplished
by a proclamation by the Governor General
 the proclamation is not to be issued until 1 year has elapsed (s. 39(1)) nor after 3 years have
elapsed (s. 39(2)) from the adoption of the resolution initiating the amendment procedure
(c) Initiation (pg. 17)
 the amending procedure can start in any of the legislative chambers that have the power to
authorize an amendment (s. 46(1))
(d) Opting Out (pg. 17)
 s. 38(3) permits opting out in respect of any amendment that derogates from the legislative
powers, the proprietary rights, or any other rights or privileges of the legislature or government
of a province, allowing the province to pass a resolution of dissent thereto
 a maximum of 3 provinces could opt out of an amendment
 if there were more than 3 dissenting provinces, the amendment would not have the support of
the seven-fifty formula, and would therefore be defeated
(e) Compensation for Opting Out (pg. 18)
 so that the province choosing to opt out is not pressured by financial considering into abandoning
its jurisdiction over educational or cultural matters, s. 40 imposes upon the federal government
the obligation to provide reasonable compensation to any province that has opted out of an
amendment that affects the province’s legislative powers relating to education or other cultural
matters to the federal Parliament
 amendments that don’t relate to education or cultural matters do not carry any
constitutional right to compensation for opting out
(f) Revocation of Assent or Dissent (pg. 19)
 so long as the issue of proclamation has not been issued, a resolution of assent may be revoked
 once the proclamation has been issued, a resolution of assent cannot be revoked, otherwise the
amendment would be indefinitely vulnerable to losing its seven-fifty status
 a resolution of dissent (i.e.; a resolution of opting out) can be revoked at any time
 all this does is extend an amendment that is already applicable to other provinces to a provinces
that has initially opted out
(g) Section 42 (pg. 20)
 s. 42, like, s. 38 and 41, applies only to amendments to the Constitution of Canada
 besides the residual class of amendments that are not covered by ss. 41, 43, 44, 45, there are 6
classes of amendments defined by s. 42(1) that require the general amending procedure of the
seven-fifty:
 the principle of proportionate representation of the provinces in the House of Commons (s.
42(1)(a))
 the powers of the Senate (s. 42(1)(b))
 the method of selecting senators and provincial representation in the Senate (s. 42(1)(c))
 the SCC in all aspects other than its composition (s. 42(1)(d))
 the extension of existing provinces into the territories (s. 42(1)(e))
 the establishment of new provinces (s. 42(1)(f))
 s. 42(2) prohibits any province from opting out of amendments coming within s. 42
(h) “Regional Veto” Statute (pg. 22)
 the general (i.e.; seven-fifty) formula itself doesn’t give any province a veto over constitutional
amendments
 An Act Respecting Constitutional Amendments was enacted after the narrow defeat of Quebec’s
1995 referendum whereby new conditions were imported into the general (seven-fifty) formula:
on top of the constitutional requirement of support by 7 provinces representing 50% of the
population, the 7 agreeing provinces had to include the five “regions” (i.e.; Ontario, Quebec,
British Columbia, 2 Atlantic provinces, and 2 Prairie provinces)
 because all regions have to be included, the regions, thereby, obtain a veto by proxy; as such, the
general (seven-fifty) formula has been amended by this regional veto statute
4. Unanimity Procedure (s. 41) (pg. 25)
 s. 41 lists 5 matters (deemed to be matters of national significance which should not be altered over
the objection of even one province) in respect of which an amendment to the Constitution of Canada
requires the unanimous support of the provinces; therefore, each province has a veto over
amendments

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 s. 41(a) has the effect of entrenching those provisions of the Constitution of Canada that deal
with the monarchy and its representatives in Canada – it does not apply to the provisions that do
not comprise the Constitution of Canada
 s. 41(b) entrenches the right of the least populous provinces to a minimum number of members
in the House of Commons – so as to limit the declining representation of the maritime provinces
 s. 41(c) entrenches the provisions of the Constitution of Canada that make provisions for the use
of the English or French language
 s. 41(d) entrenches the composition of the SCC - s. 41(d) is probably ineffective since s. 41
applies only to amendments to the Constitution of Canada and the rules regarding the
composition of the SCC are contained in the Supreme Court Act, which is not part of the
Constitution of Canada
 s. 41(e) provides that any amendment to the amending procedures themselves can only be
effected by the unanimity procedures of s. 41
5. Some-But-Not-All-Provinces Procedure (s. 43) (pg. 28)
 there are provisions of the Constitution of Canada that apply to one or more, but not all, of the
provinces
 s. 43 provides for amendment of provisions applying to some, but not all, provinces, thereby
requiring the assents of the federal Parliament and only those provinces affected
6. Federal Parliament Alone (s. 44) (pg. 31)
 s. 44 authorizes the federal Parliament, by ordinary legislation, to amend those parts of the
Constitution of Canada which relate to the executive government of Canada or the Senate and House
of Commons
 s. 44 is subject to ss. 41 and 42 as they entrench some aspects of the executive government of
Canada, the Senate and the House of Commons
 s. 44 is similar to s. 91(1) of the Constitution Act, 1867, which it replaced
 the procedure under s. 44 has been successfully used twice since 1982
7. Provincial Legislature Alone (s. 45) (pg. 32)
 s. 45 authorizes each provincial legislature to amend the constitution of the province
 s. 45 is subject to s. 41
 s. 45 makes no mention of the Constitution of Canada – only the constitution of the province
(whereby it bears on the operation of an organ of government of the province)
 s. 45 replaced s. 92(1) of the constitution Act 1867
 s. 45 is obscured by s. 43 (the some-but-not-all-provinces procedure) – the approach to reconcile the
two seems to be to apply s. 43 to only those provisions of the Constitution of Canada which, although
applicable to only one province, do not come within the phrase the ‘constitution of the province’
8. Future Amendments (pg. 34)
(a) Forces of Change (pg. 34)
 the forces that led to the constitutional amendments of 1982, and which will lead to continuing
efforts to adopt other amendments to the Constitution:
 French-Canadian nationalism
 western regionalism
 the demand by aboriginal peoples (Indian, Inuit, and Métis) of Canada for the entrenchment
of their traditional rights
 Canadian nationalism (which led to developments so that the constitution can be amended
without recourse to the UK)
 the civil libertarian impulse to entrench a Charter of Rights in the constitution
(b) Division of Powers (pg. 38)
 due to the disparity between the provinces in their size, wealth and aspirations, they cannot
agree on what new responsibilities they should assume and what they should give up (to the
federal/centralized level)
 the smaller provinces are heavily dependent on federal funding to maintain their standard of
living, as well as federal policies for protection from the adverse effects (intended or not) of the
other provinces, they lack the capacity to substantially increase their own responsibilities
 therefore, a substantial alteration in the division of powers between the federal and provincial
governments is neither practicable nor desirable
(c) Central Institutions (pg. 39)
 institutions of the federal government should be reformed so that regional attitudes and interests
are more effectively represented within those institutions
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 the more effectively these attitudes are represented within the central institutions, the wider is
the range of powers that may be conferred on the central institutions
(d) Criticism of Amending Procedures (pg. 40)
 the high level of agreement required by the general amending procedure (i.e.; 7 provincial
governments out of 11 is a hard group to assemble on anything) makes it difficult to secure any
amendments to the Constitution required by the general (seven-fifty) amending procedure
 the unanimity rule is even more difficult to operate

Hogg. Chapter 5.7. “Secession”


7. Secession (pg. 32)
(a) The Power to Secede (pg. 32)
 the absence of any provisions in the Constitution authorizing secession makes it clear that no
unilateral secession is possible
 Reference Re Secession of Quebec (1998) – after nearly losing the Quebec referendum, and facing
the prospect that another referendum on secession would eventually be held in Quebec, the
federal government came to appreciate the merit of securing a legal ruling on the validity of a
unilateral declaration of independence
 the Secession Reference (1998) was a reference by the federal government to the SCC in
which the court was asked whether Quebec could secede unilaterally from Canada
 three questions were put to the court:
 what is the position under the Constitution of Canada – the Court replied that unilateral
secession was not permitted
 what is the position under international law – the Court gave the same answer
 what is the position if the Constitution of Canada and international law were in conflict –
since they were not, this question did not need to be answered
 the SCC held that the secession from Canada of a province could not be undertaken in
defiance of the terms of the Constitution of Canada
 a secession would require an amendment to the Constitution of Canada and would have to be
accomplished in accordance with the Constitutions amending procedure, and since the same
required the participation of the federal government as well as the other provinces, any such
secession would have to be negotiated with the federal government and the other provinces and
could not be accomplished unilaterally
 however, this does not preclude the possibility of a de facto secession taking place without the
required agreement or amendment – such a secession, although it would be unconstitutional,
could be successful if the seceding government achieved effective control of the territory and
recognition by the international community
 the constitutional law of Canada would eventually have to recognize the reality, thereby
ultimately allowing a unilateral secession to become the successful root of a new state
 in response to the above, the Clarity Act was enacted whereby it was made clear that a
constitutional amendment is needed for the secession of a province – ground rules have also been
set for the initiation of negotiations leading to the required constitutional amendment
 therefore, it has been acknowledged that Canada is divisible, and that a clearly expressed will to
secede would have to be respected by the rest of the country, at least to the point of good faith
negotiations of the terms of secession
(b) Secession by Amendment (pg. 39)
 Secession Reference (1998) affirmed the proposition that the secession of a province can be
accomplished by amendment of the Constitution of Canada, however it has not been made clear
which of the amending procedures is the correct one
 s. 45 (whereby the provincial legislature alone can make the amendment) clearly does not apply
 s. 44 (some but not all provinces procedure) also would be inapplicable
 s. 38 (general procedure) might be applicable as it allows for amendments not provided for in
the other sections
 s. 41 (unanimity) might be applicable since the resulting secession would have, at the very least,
an indirect impact on the remaining provinces
(c) Secession by Unilateral Act (pg. 41)
 Secession Reference (1998) held that a province had no right to secede unilaterally from Canada,
however a referendum to such an effect would give rise to a constitutional obligation on the part

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of the federal government and the other provinces to negotiate in good faith with the province
wishing to secede
 a unilateral secession is illegal because it is unauthorized by the existing rules of constitutional
law – however, such a secession, being a revolution, might set the foundation of a new and
entirely legitimate legal order

Reference re Secession of Quebec [1998] 2 S.C.R. 217


Facts:
 after nearly losing the Quebec referendum, and facing the prospect that another referendum on secession
would eventually be held in Quebec, the federal government came to appreciate the merit of securing a
legal ruling on the validity of a unilateral declaration of independence
 the Secession Reference (1998) was a reference by the federal government to the SCC in which the court
was asked whether Quebec could secede unilaterally from Canada
Issues:
 s. 53 of the Supreme Court Act is unconstitutional
 even if the court’s reference jurisdiction was constitutionally valid, the questions submitted were outside
the scope of s. 53
 the questions posed were not justifiable
 three questions were put to the court:
 1. what is the position under the Constitution of Canada – the Court replied that unilateral secession
was not permitted
 2. what is the position under international law – the Court gave the same answer
 3. what is the position if the Constitution of Canada and international law were in conflict – since
they were not, this question did not need to be answered
Held:
 to the three questions:
 1. what is the position under the Constitution of Canada – the Court replied that unilateral secession
was not permitted
 2. what is the position under international law – the Court gave the same answer
 3. what is the position if the Constitution of Canada and international law were in conflict – since
they were not, this question did not need to be answered
 the SCC held that the secession from Canada of a province could not be undertaken in defiance of the
terms of the Constitution of Canada
 a secession would require an amendment to the Constitution of Canada and would have to be
accomplished in accordance with the Constitutions amending procedure, and since the same required the
participation of the federal government as well as the other provinces, any such secession would have to
be negotiated with the federal government and the other provinces and could not be accomplished
unilaterally
 however, this does not preclude the possibility of a de facto secession taking place without the required
agreement or amendment – such a secession, although it would be unconstitutional, could be successful if
the seceding government achieved effective control of the territory and recognition by the international
community
 the constitutional law of Canada would eventually have to recognize the reality, thereby ultimately
allowing a unilateral secession to become the successful root of a new state
 the SCC invoked unwritten principles of democracy, federalism, constitutionalism, and the protection of
minorities to hold that, if a province were to decide in a referendum that it wanted to secede from
Canada, the federal government and the other provinces would come under a legal duty to enter into
negotiations to accomplish the secession
 this carries the constitution of Canada way beyond the literal language of its text and the intention of the
framers, possibly trespassing into fields better left to the legislative and executive branches of the
government, nevertheless, it is an exceedingly important source of constitutional law

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3. FEDERALISM AND JUDICIAL REVIEW


Constitution Act, 1867, ss. 91-95
 s. 91 enumerates the powers of the Parliament
 s. 91 goes on to say that these powers extend to all matters not coming within the classes of subjects
assigned exclusively to the legislatures of the provinces
 s. 92 lists the exclusive powers of the provincial legislatures
 s. 92A relates to the provinces’ powers to make laws in relations to non-renewable natural resources,
forestry resources and electrical energy
 s. 93 says that provinces may exclusively make laws in relation to education subject to paragraphs (1) to
(4)
 s. 93A stipulates that paragraphs (1) to (4) of s. 93 don’t apply to Quebec
 s. 94 provides that, notwithstanding anything in this Act, the Parliament of Canada may make provisions
for the uniformity of laws in Ontario, Nova Scotia, and New Brunswick
 s. 94A allows the Parliament of Canada to make laws in relation to old age pensions and supplementary
benefits
 s. 95 states that each province’s legislature may make laws in relation to agriculture and immigration
into the province, but that the parliament of Canada may, from time to time, do so for any or all of the
provinces

Constitution Act, 1982, s. 52


 s. 52(1) states that the Constitution of Canada is the supreme law of Canada and that any law that is
inconsistent therewith is, to the extent of the inconsistency, of no force or effect
 s. 52(2) says that the Constitution of Canada includes:
 the Canada Act, 1982 (including this Act)
 the Acts and orders referred to in the Schedule
 any amendment to any Act or order referred to in the paragraphs above
 s. 53(3) entrenches the Constitution of Canada by making it amendable only in accordance with the
authority contained within the Constitution of Canada itself

Hogg. Chapter 5. “Federalism


1. Distribution of Governmental Power (pg. 2)
(a) Federalism (pg. 2)
 in a unitary state (like UK and New Zealand), governmental power is vested in one national
authority, and local/municipal authorities are subordinate to the national authority
 in a federal state (like Canada, US, and Australia), governmental power is distributed between a
central (national/ federal) authority and several regional (provincial/ state) authorities
 every individual in the state is subject to the laws of two authorities (the central and the
regional), whereby both authorities are coordinate, neither being subordinate to the other
 however, since the power of the central authority extends throughout the country, in a sense
it can be said to be higher than the power of each regional authority that is confined to its
region – and generally, in case of inconsistency between federal law and provincial/state law,
the federal law would prevail
 still, the two levels are coordinate or equal in status with each other (though not necessarily
in wealth, status or actual power since within every federation, some regions will be
wealthier and more powerful than others, and the central authority is wealthier and more
powerful than any of the regions
 whether a state is truly federal depends on whether there is still an area of guaranteed autonomy
for each unit of the system, however disparate in size and wealth it may be
 only where overlapping of power is incomplete, or the scope of central control is limited,
whereby there are two levels of government which are within a sphere coordinate and
independent is there a federal system
(b) Confederation (pg. 5)
 a confederation is a loose association of states in which the central government is subordinate to
the states
 the powers of the central government are delegated to it by the states or provinces that retain the
right to resume the delegated powers if they so wish
(c) Legislative Union (pg. 5)
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 a legislative union is the closest kind of union wherein the united states/provinces form a new
unitary state which incorporates the former units and subjects them to the authority of a single
central legislature
 e.g.; the UK is a legislative union of England, Wales, Scotland, and Northern Ireland
(d) Special Status (pg. 6)
 a number of provisions of the constitution apply only to one or some of the provinces, and the
terms upon which each province was admitted usually included unique terms for the said
province
 although they are not perfectly equal, the differences between the provinces are not so marked so
as to justify the description of special status for any given province
 a special status province would possess larger powers than the other provinces
 the closest that any province has come to special status has been Quebec
(e) Dominion and Provinces (pg. 8)
 by way of the BNA Act, s. 3, the country came to be officially described as “The Dominion of
Canada”
 when it was desired to distinguish the central government authority from the provinces, the
central authority was called “The Dominion”
 in the 1930s, the federal government decided to switch the official name to “Canada”
 generally speaking, the term “Parliament” is confined to the federal Parliament, and the term
“Legislature” to the provincial parliament – this is also the usage in the Constitution Acts
(f) Regions (pg. 10)
 the Act describes regions as divisions
 Ontario, Quebec, and the three maritime provinces comprised the original three divisions –
and each original division was represented by 24 senators
 in 1915, the four western provinces were recognized as a division and were also represented
by 24 senators
 however, Newfoundland, being added in 1949, was not included in the maritime division, and
was allocated an additional six senators
 the Yukon and Northwest Territories were given one senator each in 1975
 Nunavut, in 1999, was given a senator
 membership of the SCC has also been based on the regional idea, requiring that 3 (of the 9)
judges be appointed from Quebec
 this is supplemented by appointing 3 judges from Ontario, 2 from the four Western provinces,
and 1 from the four Atlantic provinces
 the seven-fifty formula of s. 38 rejects the idea of regions in favour of the equality of the
provinces – although the seven-fifty formula avoids the explicit recognition of regions, the seven-
fifty formula will always include at least one Western province, at least one Atlantic province, and
since the other eight provinces combined have less than 50% of the population, at least one of
Ontario or Quebec
 the general (i.e.; seven-fifty) formula itself doesn’t give any province a veto over constitutional
amendments
 An Act Respecting Constitutional Amendments was enacted after the narrow defeat of
Quebec’s 1995 referendum whereby new conditions were imported into the general (seven-
fifty) formula: on top of the constitutional requirement of support by 7 provinces
representing 50% of the population, the 7 agreeing provinces had to include the five “regions”
(i.e.; Ontario, Quebec, British Columbia, 2 Atlantic provinces, and 2 Prairie provinces)
 because all regions have to be included, the regions, thereby, obtain a veto by proxy; as such,
the general (seven-fifty) formula has been amended by this regional veto statute
(g) Subsidiarity (pg. 12)
 subsidiarity is a principle of social organization that prescribes that decisions affecting
individuals should, as far as reasonably possible, be made by the level of government closest to
the individuals affected
 despite some departures, the division of powers in the BNA Act generally adhered to the principle
of subsidiarity
 the provincial power over property and civil rights was given a broad interpretation so as to
include not only the private law of property, contract and tort, but also most of commercial law,
consumer law, environmental law, labour law, health law, and social-services law – the result is
that the laws that impact most directly on individuals are for the most part provincial
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 the corollary to subsidiary is that matters that cannot be effectively regulated at the provincial
level should be the responsibility of the more distant federal level of government
2. Reasons for Federalism (pg. 14)
 federalism works in a country that covers a large area and includes diverse regions
 there are advantages of efficiency and accountability in dividing the powers of government so that a
national government is responsible for matters of national importance and provincial or state
governments are responsible for matters of local importance
 this also avoids diseconomies of scale if all governmental decision was centralized in one unit
 the local governments can also be able to identify and give effect to different preferences and interest
in different parts of the country
 the division of governmental power also operates to preclude an excessive concentration of power
and thus acts as a check against tyranny
3. Federalism in Canada (pg. 15)
(a) The Terms of the Constitution (pg. 15)
 the framers of the BNA Act planned a strong central government – the provinces are only given
enumerated powers to make laws, with the residue of the powers to the federal Parliament
 furthermore, in some respects, the provinces were actually made subordinate to the center (in
violation of the principle that in a federal state, the regions should be coordinate with the center)
 literal reading of the terms of the Constitution would lead one to classify Canada as a quasi-
federal state – however, the subsequent development of case law, convention, and practice has
virtually eliminated the elements of provincial subordination of the constitution
(b) Early Federal Dominance (pg. 17)
 the power and importance of the provinces has grown over the years – from a point when the
national government, with the bulk of the revenues and able politicians exercised a control over
the provinces much like that of an imperial government over its colonies

(c) Judicial Interpretation of the Distribution of Powers (pg. 17)


 the Judicial committee of the Privy Council was the final court of appeal for Canada in
constitutional cases until 1949
 the major players (Lord Watson and Lord Haldane) believed strongly in provincial rights, and
established precedents that elevated the status of provinces to coordinate status with the
Dominion
 their decisions were consistent with the tendencies in Canada of a less centralized federal system
than that of the US or Australia – making the distribution of powers in the Constitution of Canada
much less favourable to the federal power than would be suggested merely by comparing the text
with that of the American or Australian Constitutions
(d) Federal-Provincial Financial Arrangements (pg. 19)
 the federal government enjoys a fiscal dominance as established by the BNA Act, however the
present federal-provincial arrangements give the provinces more financial autonomy than is
enjoyed by their counterparts in the US or Australia
(e) Disallowance (pg. 19)
 the federal power to disallow provincial statutes was frequently exercised by the federal
government in the early years, and although it hasn’t been exercised since 1943, its use today is
not so probable
 the modern development of ideas of judicial review and democratic responsibility leaves no room
for the exercise of the federal power of disallowance
(f) Appointment of Lieutenant Governors (pg. 20)
 the power to appoint the Lieutenant Governors is regularly exercised by the federal government
 but once the appointment is made, the Lieutenant Governor is obliged by the conventions of
responsible government to act on the advice of the provincial cabinets – as such, he is not
actually the agent of the federal government
(g) Appointment of Judges (pg. 21)
 the power under s. 96 of the Constitution Act 1867 to appoint the judges of the higher provincial
courts is exercised by the federal cabinet whenever a court judgeship has to be filled
 the SCC has been the final court of appeal since 1949 – it is a federal court created by a federal
statute, and its judges are appointed and paid by the federal government
(h) Educational Appeals (pg. 21)

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 the federal power under s. 93 of the Constitution Act, 1867 to enact remedial laws to correct
provincial incursions on minority educational rights has never been exercised
 it has, in practice, become obsolete
(i) Declaratory Power (pg. 22)
 in the early years, the federal power under s. 92(10)(c) to bring a local work within federal
jurisdiction by declaring the same to be “for the general advantage of Canada” was frequently
used
 it has only sparingly been used in recent years
(j) Conclusion (pg. 22)
 the unitary elements of the Canadian Constitution are quite unimportant as compared to the
federal elements, thereby making the Canadian Constitution federal by all reasonable definitions
4. Supremacy of the Constitution (pg. 22)
 in order for the essential characteristics of a federal constitution to be met, the constitution must:
 define the powers vested in the central and regional authorities
 be written
 be supreme so as to be binding on and unalterable by the central and regional authorities
 be rigid or entrenched so as to only be amendable through some special process and not by
means of ordinary legislative action
 in Canada, the constitution:
 defines the powers of the dominion and the provinces by way of the Constitution Act 1867 and
Constitution Act 1982
 the said Acts are (written and are) part of the Constitution of Canada
 s. 52(1) of the Constitution Act 1982 expressly affirms the supremacy of the Constitution of
Canada over all other laws thereof
 neither the parliament nor the legislature have the unilateral power to alter the Constitution of
Canada (as per Part V, the same can only be done by way of the assent of the two Houses of the
federal Parliament and the seven-fifty formula)
5. Role of the Courts (pg. 23)
(a) Development of Judicial Review (pg. 23)
 since it cannot be absolutely free of doubt and ambiguity, disputes as to whether a particular
legislative body has the power to enact a particular statute have to be settled
 the constitution of Canada (or of the US) doesn’t expressly provide for such a machinery
 Marbury v. Madison (1803) – the supreme Court of the United States took upon itself the power to
settle disputes about the distribution of legislative power
 the Privy Council (as the ultimate court of appeal for Canada at the time), after the coming
into effect of the Constitution Act 1867 relied on imperialism as well as the argument in
Marbury v. Madison to find that if a statute was inconsistent with the BNA Act, then the BNA
Act had to prevail
 the SCC assumed the same power when it was established in 1875
 s. 52(1) of the Constitution Act 1982 is the current basis for judicial review in Canada, and it
states that the constitution of Canada is the supreme law of Canada and any law that is
inconsistent therewith is, to the extent of the inconsistency, of no force or effect
 the Charter of Rights and Freedoms, as added by the Constitution Act 1982, furthered broadened
the scope of judicial review – and since its inclusion, many more laws are reviewed on charter
grounds than on federalism grounds
 disputes as to the distribution of legislative powers are inevitable within a federation, and
ultimately there is no body with power to decide on them other than the courts
(b) Limitations of Judicial Review (pg. 27)
 one function of judicial review is to enforce the rules of federalism (i.e.; the distribution of powers
rules) – if the judiciary determines a statute to be outside the powers of the enacting body, then
the statute is ultra vires, and for that reason it is invalid
 a second function of judicial review is to enforce the Charter restriction and other non-federal
restrictions – the courts have to decide whether a statute violates a constitutional prohibition,
and where that statute is found to be in violation of such prohibitions/restrictions, then the said
statute is ultra vires, and therefore invalid
 the potential issues may not have just arisen due to vagueness or oversight by the framers of the
text, but also because the passage of time produces social and economic change that may create
problems that were unforeseen by the framers of the text
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 the problem with judicial review lying with the judges is that they are more than likely not well
suited to the policy-making that is inevitably involved – the resources available to the judges are
limited by the practice and power of the court (as opposed to the political field)
 judicial review requires non-elected judges to make decisions of great political significance –
they lack the democratic accountability of elected officials responsible for the legislation to
begin with
(c) Alternatives to Judicial Review (pg. 30)
 a suggestion that the disputes be taken away from the ‘umpire’ judges and be placed into direct
negotiations between the interested governments is dangerous because it might leave minority
regional interest insufficiently protected from the acts of powerful majorities
 there is also the suggestion of specialized tribunals for constitutional disputes
 another suggestion is to develop specialized divisions of the SCC – one each for common law, civil
law, and constitutional law
6. Amending Power (pg. 32)
 every nation requires the power to amend its constitution
 unitary nations with a flexible constitution amend easily by way of an ordinary statute enacted by the
central legislative body
 rigid constitutions of federal states tend to ensure that amendments are supported by both the
federal legislative and the regional legislature governments as well
7. Secession (pg. 32)
(a) The Power to Secede (pg. 32)
 the absence of any provisions in the Constitution authorizing secession makes it clear that no
unilateral secession is possible
 Reference Re Secession of Quebec (1998) – after nearly losing the Quebec referendum, and facing
the prospect that another referendum on secession would eventually be held in Quebec, the
federal government came to appreciate the merit of securing a legal ruling on the validity of a
unilateral declaration of independence
 the Secession Reference (1998) was a reference by the federal government to the SCC in
which the court was asked whether Quebec could secede unilaterally from Canada
 three questions were put to the court:
 what is the position under the Constitution of Canada – the Court replied that unilateral
secession was not permitted
 what is the position under international law – the Court gave the same answer
 what is the position if the Constitution of Canada and international law were in conflict –
since they were not, this question did not need to be answered
 the SCC held that the secession from Canada of a province could not be undertaken in
defiance of the terms of the Constitution of Canada
 a secession would require an amendment to the Constitution of Canada and would have to be
accomplished in accordance with the Constitutions amending procedure, and since the same
required the participation of the federal government as well as the other provinces, any such
secession would have to be negotiated with the federal government and the other provinces and
could not be accomplished unilaterally
 however, this does not preclude the possibility of a de facto secession taking place without the
required agreement or amendment – such a secession, although it would be unconstitutional,
could be successful if the seceding government achieved effective control of the territory and
recognition by the international community
 the constitutional law of Canada would eventually have to recognize the reality, thereby
ultimately allowing a unilateral secession to become the successful root of a new state
 in response to the above, the Clarity Act was enacted whereby it was made clear that a
constitutional amendment is needed for the secession of a province – ground rules have also been
set for the initiation of negotiations leading to the required constitutional amendment
 therefore, it has been acknowledged that Canada is divisible, and that a clearly expressed will
to secede would have to be respected by the rest of the country, at least to the point of good
faith negotiations of the terms of secession
(b) Secession by Amendment (pg. 39)
 Secession Reference (1998) affirmed the proposition that the secession of a province can be
accomplished by amendment of the Constitution of Canada, however it has not been made clear
which of the amending procedures is the correct one
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 s. 45 (whereby the provincial legislature alone can make the amendment) clearly does not apply
 s. 44 (some but not all provinces procedure) also would be inapplicable
 s. 38 (general procedure) might be applicable as it allows for amendments not provided for in
the other sections
 s. 41 (unanimity) might be applicable since the resulting secession would have, at the very least,
an indirect impact on the remaining provinces
(c) Secession by Unilateral Act (pg. 41)
 Secession Reference (1998) held that a province had no right to secede unilaterally from Canada,
however a referendum to such an effect would give rise to a constitutional obligation on the part
of the federal government and the other provinces to negotiate in good faith with the province
wishing to secede
 a unilateral secession is illegal because it is unauthorized by the existing rules of constitutional
law – however, such a secession, being a revolution, might set the foundation of a new and
entirely legitimate legal order
8. Cooperative Federalism (pg. 45)
 the Canadian constitution suggests that there are 11 legislative bodies (the federal body and 10
provincial bodies) that are confined to their own jurisdictions, independent of the others
 however, for the sake of unified humanitarian and egalitarian grounds, nation-wide minimum
standards are set for many territorially limited jurisdictions
 also, in order to counter Canada’s disparities in regional wealth the richer regions have to help
the poorer regions to certain extents
 therefore, the demands for interdependence of governmental policies, equalization of regional
disparities, and constitutional adaptation have combined to create a cooperative federalism
whereby there is a network of relationships between the executives of the central and the
regional governments
 most intergovernmental relationships depend on informal arrangements which have no foundation
in the constitution, or statutes, or the conventions of parliamentary government

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II. DISTRIBUTION OF POWERS

4. PRINCIPLES OF INTERPRETATION
Hogg. Chapter 15. “Judicial Review on Federal Grounds”
1. Scope of Chapter (pg. 2)
 distribution of powers between a central authority and regional authorities constitutes the essence of
a federal constitution
 that distribution of powers has to be written in a constitution that is binding on both levels of
authorities and is unalterable by the unilateral action of either them
 the answer to whether one of the authorities has enacted a law that comes within the powers
allocated to that enacting body can only be provided by the courts – this is the justification for
judicial review of legislation so as to determine whether any particular law is valid or invalid
 if the law falls within the powers allocated to the enacting body by the constitution, then the law
is valid (intra vires)
 if the court finds that the law was enacted was enacted outside the powers allocated to the
enacting body, then the law is held to be invalid (ultra vires)
2. Priority Between Federal and Charter Grounds (pg. 2)
 the federal distribution of powers and the Charter of Rights are both part of the Constitution of
Canada
 s. 52 of the Constitution Act, 1982 makes clear that a law that is contrary to any provision of the
constitution of Canada is of no force or effect insofar as the inconsistency
 a successful challenge to a law on federal grounds (that it is outside the authority of the enacting
legislative body) has the same consequences (of the law being found to be invalid) as a successful
challenge to a law on Charter grounds (that it contravenes a provision of the Charter of Rights
and Freedoms)
 still, it can be asserted that the provisions of the constitutional distribution of powers are higher/
prior to the Charter of Rights
 e.g.; because s. 33 of the Charter of Rights enables the enacting body to override most of the
provisions of the Charter of Rights by including in the statute a declaration that the statute is
to operate notwithstanding the relevant provision of the Charter – thereby making the
statute valid, despite the breach of the Charter
 there is no override/saving provision for a breach of the federal distribution of powers
 and so, in reviewing the validity of a law, the first step is to see whether it was within the power of
the enacting body – the second is whether the law is consistent with the Charter of Rights
 however, that doesn’t necessarily mean that the court must dispose of the federal ground
question before proceeding to the Charter issue – the ground that seems strongest to the
court is what the case tends to be decided on
3. Procedure of Judicial Review (pg. 5)
 the rules with regards to judicial review on federal grounds are mostly the same as the rules with regards
to judicial review on Charter grounds
4. Reasoning of Judicial Review (pg. 5)
 ss. 91 and 92 of the Constitution Act 1867 set out the distribution of legislative power between the
federal Parliament and the provincial Legislatures
 s. 91 lists the kinds of laws that are competent to the federal parliament
 s. 92 lists the kinds of laws that are competent to the provincial legislatures
 the process of judicial review involves first characterizing the challenged law (identifying the matter (or
pith and substance) of the challenged law); and then interpretation of the power-distributing provisions
of the Constitution (assigning the matter to one of the classes of subjects (i.e.; heads of legislative power
as set out by s. 91 or 92))
5. Characterization of Laws (pg. 7)
(a) “Matter” (pg. 7)
 the difficulty in determining the constitutionality of a challenged law is that many statutes have
one feature (or aspect) that comes within the provincial head of power and another that comes
within the federal head of power.
 the court, in such cases, has to make a judgment as to which is the most important feature of
the law, and then characterize the law by that feature (thereby assessing the other feature as
merely incidental or irrelevant for constitutional purposes)
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 therefore, identifying the matter by determining the pith and substance (the dominant or most
important characteristic) of the challenged law is the first step in judicial review
 if the pith and substance of the law is determined to be such so that the matter falls outside the
jurisdiction of the enacting body, then the law will held to be ultra vires
(b) Singling Out (pg. 10)
 notwithstanding that a law singled out a person or class of persons within federal jurisdiction,
may not, in and of itself, make that law ultra vires
 if the pith and substance of the law (i.e.; its dominant feature) is within the provincial
jurisdiction, then the law may be upheld even if it is of specific/special application and doesn’t
apply generally
 the same is true of federal laws that single out local works or other such undertakings that were
within the provincial jurisdiction, provided the pith and substance of the law is within the federal
jurisdiction
 however, where the effect of the law is to impair the status or essential power of a federally
regulated enterprise, then that law, although valid in generality, will not apply to the federally
incorporated enterprise that it so effects
 e.g.; Alberta Bank Taxation Reference – taxation falls in the provincial jurisdiction, but it
singled out banks, which fall under the federal jurisdiction, so the law was held ultra vires
(c) Double Aspect (pg. 11)
 although, generally speaking, s. 91 and s. 92 account for which matters fall into which
jurisdiction, when courts find that federal and provincial characteristics of a law are roughly
equal in importance, then the law of that kind may be enacted by either parliament or legislature
 this concurrency of power can give rise to the possibility of conflict between a valid federal
law and a valid provincial law – the solution in such a case of conflict is to resolve the conflict
in favour of the federal law (in line with the doctrine of federal Paramountcy)
(d) Purpose (pg. 13)
 the characterization of a law for constitutional purposes is the identification of the matter of the
law
 the matter (pith and substance) of the law, is the dominant/most important characteristic of
the law
 the court will look beyond the direct legal effect and inquire into the social or economic
purposes that the statute was intended to achieve
 the Sunday Closing cases (R. v. Big M Drug Mart (1985) and R. v. Edwards Books and Art
(1986)) are examples whereby the former fell within religious grounds for observing the
Sabbath as a resting day (and thus federal jurisdiction) and the latter within secular
grounds for a common day of rest for retail workers (and thus provincial jurisdiction)
 the court will look into the full or total meaning of the rule, judged in terms of the
consequences of the action called for
 the legislative history of the Act could be relevant in placing the statute in its context and
giving some explanation of its provisions but is inadmissible in Canada under ordinary rules
of statutory interpretation
(e) Effect (pg. 16)
 in characterizing a statute, identifying its matter, the court will consider the effect of the statute
and how it changes the rights and liabilities of those who are subject to it
(f) Efficacy (pg. 18)
 in characterizing a statute for the purpose of judicial review, the reviewing court should not pass
judgment on the likely efficacy thereof
(g) Colourability (pg. 19)
 the colourability doctrine is invoked when a statute bears the formal trappings of a matter within
its jurisdiction, but is actually addressed to a matter outside of its jurisdiction
 e.g.; Alberta Bank Taxation Reference – taxation falls in the provincial jurisdiction, but it
singled out banks, which fall under the federal jurisdiction, so the law was held ultra vires
 the colourability doctrine applies the maxim that a legislative body cannot do indirectly that
which it cannot do directly

(h) Criteria of Choice (pg. 21)

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 since the characterization of a statute is often the deciding factor of its validity/invalidity, the
choice between competing characteristics of a statute can impact whether the statute will be
classified as intra vires or ultra vires
 a full understanding of the legislative scheme and judicial decisions on similar kinds of statutes
will often provide some guide as to which features of the statute are dominant and which
subordinate
 the choice should be guided by a concept of federalism and not judicial approval or disapproval of
a particular statute in question or the political situation that created the issue
(i) Presumption of Constitutionality (pg. 23)
 so as to avoid interference by unelected judges with the affairs of the elected legislative bodies of
the government, the presumption of constitutionality carries 3 legal consequences:
 in choosing between competing characterization of a law, the court should normally choose
the one that would support the validity of the law
 where the validity of a law requires a finding of facts, that finding doesn’t necessarily need to
be proved by the parties, it can be made on a rational basis
 where a law is open to both a narrow and a wide interpretation, and under the wide
interpretation its application would extend beyond the powers of the enacting body, then it
should be read down so as to confine it to come within the power of the enacting body
 this presumption also helps to ensure that statutes that are the result/emerged from the
democratic process aren’t invalidated by the biases/interference of the unelected judges
6. Severance (pg. 23)
 a statute is usually the elaboration of a single legislative plan/scheme/purpose
 the leading feature of that plan will be the pith and substance of the statute
 a statute is one law, and will generally stand or fall as a whole when its validity is questioned,
however, occasionally it is possible to say that only a part of a statute is invalid and the remainder of
it would still be valid if it stood alone
 however, since it doesn’t stand alone, the court has the question of whether to sever the bad part
(and preserve the good part) of the statute or to declare the statute to be bad in its entirety
 severance is inappropriate when the remaining (good) part is so wound up with the invalid part that
it cannot independently survive without it
 however, with the rarity of severance being ordered by the courts, the presumption of the courts
seems to be that a statute embodies a single statutory scheme of which all the parts are
interdependent, and thus inseverable
 although uncommon in Canada, (the US and Australia have applied them), a statute can contain a
severance clause that provides that if any part of the statute is judicially held to be unconstitutional,
the remainder of the Act is to continue to be effective
 in Charter cases, the same test is applied, but because in Charter cases, the pith and substance of the
entire law isn’t at question (and it’s more about a single or a few sections that abridge a Charter
right), severance is more common in Charter cases than it is in federalism cases
7. Reading Down (pg. 26)
 reading down requires that whenever possible, a statute is to be interpreted as being within the
power of the enacting legislative body
 where the language of a statute will bear both a valid limited meaning as well as an invalid extended
meaning, then the limited meaning should be selected
 reading down depends on a presumption of constitutionality in that the enacting legislative body is
presumed to have meant to enact provisions that do not transgress the limits of its constitutional
powers
 the basis is that a law shouldn’t be held to be completely invalid simply because it overreaches its
jurisdiction in some respects – the doctrine of pith and substance comes in here as well
8. Interjurisdictional Immunity (pg. 28)
(a) Definition of Interjurisdictional Immunity (pg. 28)
 a law that purports to be outside the jurisdiction of the enacting body can be questioned on:
 the validity of the law;
 the applicability of the law;
 the operability of the law
 it can be said that the law is invalid because the pith and substance thereof, which comes down to
the characterization of the law, is outside the jurisdiction of the enacting legislative body

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 a law can be valid in its matter (pith and substance), but it may be that it is applicable to matters
that are not within its jurisdiction – thereby making it inapplicable
 the law can be said to be inoperative through the doctrine of paramountcy – whereby both the
federal and provincial laws are considered to be valid, but the provincial law is inoperative to the
extent of the inconsistencies with the federal law
(b) Federally-incorporated Companies (pg. 29)
 an otherwise valid provincial law may not impair the status or essential powers of a federally
incorporated company
(c) Federally-regulated Undertakings (pg. 29)
 in Canadian Western Bank v. Alberta (2007), the court held that Interjurisdictional immunity
would apply only if a core competence of parliament, or a vital/essential part of a federal
undertaking would be impaired (involving an adverse consequence) by the judicial law in
question
 if the vital part would merely be affected (but not impaired), then no immunity applied
 a court should favour, where possible, the ordinary operation of a statute enacted by both levels
of government
(d) Other Federal Matters (pg. 37)
 pg. 37
(e) Rationale of Interjurisdictional Immunity (pg. 38)
 it may be difficult to distinguish when the Interjurisdictional immunity doctrine would apply
from the occasions when pith and substance doctrine would apply
 the pith and substance doctrine stipulates that a law in relation to a provincial matter may
validly affect a federal matter
 provincial laws, under the pith and substance doctrine, may validly extend to federal subjects so
long as those provincial laws don’t bear upon those federal subjects in what makes them
specifically of federal jurisdiction (Bell Canada v. Quebec (1988))
 if the provincial law would affect the basic core of the federal subject, then the
interjurisdictional immunity doctrine would make it so that the provincial law had to be
restricted in its application to exclude the federal subject
 if, however, the provincial law did not affect the core of the federal subject, then the pith and
substance doctrine would make it so that the provincial law validly applied to the federal
subject
 the pith and substance doctrine is applied more frequently than the interjurisdictional immunity
doctrine which reads down the provincial law to exclude the federal matter
 in Canadian Western Bank v. Alberta (2007), the court narrowed the interjurisdictional
immunity doctrine in that it would not apply if a provincial law merely affected (without having
an adverse effect on) he core of the federal subject
 this indicated a stronger preference for the pith and substance doctrine on the basis that,
where possible, the court should favour the ordinary application of statutes enacted by both
levels of government
 and thus applying the interjurisdictional immunity doctrine with restraint
(f) Provincial Subjects (pg. 38.2)
 because the Constitution Act 1867 enumerates exclusive heads of powers vis a vis s. 91 and 92,
the interjurisdictional immunity doctrine should be reciprocal, protecting provincial subjects
from incursion by federal laws as well
 (although the paramountcy doctrine invalidates inconsistencies that provincial statutes have
in relation to federally enacted statutes on the same matter)
9. Interpretation of Constitution (pg. 38.4)
(a) Relevance (pg. 38.4)
 once the pith and substance (matter) of the challenged statute has been identified, it has to be
assigned to one of the classes of subjects (i.e.; heads of legislative powers) as specified by s. 91 or
92 of the Constitution Act 1867
(b) Exclusiveness (pg. 38.4)
 each list of classes of subjects in s. 91 or 92 is exclusive to either the parliament or the legislature
 a particular matter will come within a class of subjects in only one list
 nevertheless, similar (or even identical) laws may be enacted by both levels of government

(c) Ancillary Power (pg. 39)


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 the existence of an ancillary power was rejected as redundant in A.G. Canada v. Nykorak (1962)
 no such power is needed in Canada as the pith and substance doctrine enables a law that is
classified as in relation to a matter within the jurisdiction of the enacting body to have
incidental/ancillary effects on matters outside its jurisdiction
 each head of legislative power authorizes all provisions that have a rational connection to the
exercise of that head of power – as such, there is no practical need for a separate ancillary power
(d) Concurrency (pg. 44)
 although most of the classes of subjects are exclusive to either parliament or legislature, there are
3 provisions that explicitly confer concurrent powers:
 s. 92A(2) confers on the provincial legislatures the power to make laws in relation to the export
of natural resources
 s. 92A(3) is explicit that the power is concurrent with the federal parliament’s trade and
commerce power
 s. 94A confers on the federal parliament the power to make laws in relation to old age pensions
and supplementary benefits – the section acknowledges the existence of a concurrent provincial
power
 s. 95 confers on both levels of government concurrent powers over agriculture and immigration
 in Canada, nevertheless, concurrency is the exception, and exclusivity the rule – however, the
double aspect doctrine, the pith and substance doctrine, also allow for room for concurrency
 in Australia and the US, exclusivity is the exception, and concurrency the rule
 whenever some legislative power is concurrent, and a conflict between a federal and provincial
statute arises, the conflict is resolved by a rule of federal paramountcy
(e) Exhaustiveness (pg. 46)
 the distribution of powers is exhaustive in that the totality of the legislative powers is distributed
between the federal and provincial governments
 s. 92(16): generally all matters of a merely local or private nature in the province
 s. 91 gives to the federal parliament the residuary power to make laws for the peace, order, and
good government of Canada in relation to all matters not coming within the classes of subjects
assigned exclusively to the provincial legislature
 thereby, every conceivable law is competent to one level of government or the other
(f) Progressive Interpretation (pg. 47)
 the doctrine of progressive interpretation stipulates that the general language used to describe
the classes of subjects in the BNA Act 1867 is not to be frozen in the sense in which it would have
been understood when it was originally drafted by the framers in 1867
 the words are to be continuously adapted to new conditions and ideas
 in Same-Sex Marriage Reference (2004), the court denied that it was bound by the original
understanding or frozen concepts reading of the Constitution
 that doesn’t mean, however, that the original meaning is irrelevant; the constitutional provisions
should, in fact, be interpreted in accordance with the historical context of the provisions –
however, that original understanding is not forever binding
(g) Unwritten Constitutional Principles (pg. 51)
 democracy, constitutionalism, rule of law, independence of the judiciary, protection of civil
liberties, federalism, are all unwritten constitutional principles
(h) Legislative History (pg. 56)
 pg. 56
(i) Precedent (pg. 56)
 pg. 56

Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3


Facts:
 Alberta’s Insurance Act required deposit taking situations (including the federally regulated banks) to
obtain a license from the province and comply with provincial consumer protection laws
 the Act didn’t purport to regulate banks in any of their operations per se, but only applied if the banks
promoted the sale of insurance, in which case they would be subject to the statute
 the Federal Bank Act, in 1991, granted the banks the power to promote (not sell) insurance to their
customers, which most banks did do even though it was optional
Issues:
 whether Alberta’s Insurance Act could constitutionally apply to the banks
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Held:
 in Canadian Western Bank v. Alberta (2007), the court held that Interjurisdictional immunity would
apply only if a core competence of parliament, or a vital/essential part of a federal undertaking would be
impaired (involving an adverse consequence) by the judicial law in question
 if the vital part would merely be affected (but not impaired), then no immunity applied
 the vital part of an undertaking should be limited to the functions that are essential, indispensable,
necessary – the promotion of insurance by banks cannot be qualified as such
 as such, the Alberta Insurance Act could validly apply to the banks when they promoted insurance

Quebec (Attorney General) v. Canadian Owners and Pilots Association, [2010] 2 S.C.R. 536
Facts:
 L and G built an aerodrome on their land zoned as agricultural land in Quebec
 s. 26 of the ARPALAA prohibits the use of agricultural land for any purpose other than agriculture
without prior authorization from the commission – which L and G did not obtain
 the commission ordered them to return their land to its original state
 L and G challenged on the basis that aeronautics is within federal jurisdiction
 all the lower courts upheld the commission’s decision
 the court of appeal found that interjurisdictional immunity precluded the commission from ordering the
dismantling of the aerodrome
 appeal brought to the SCC
Held:
 the appeal should be dismissed
 s. 26 ARPALAA is a valid provincial legislation; the purpose and effect, in pith and substance, the
legislation is about land use planning and agriculture
 although s. 26 of the ARPALAA doesn’t sterilize parliament’s power to legislate on aeronautics, it does
seriously affect the manner in which that power can be exercised by removing the total area of the
designated agricultural regions from the territory that parliament may designate for aeronautical uses

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5. PARAMOUNTCY
Hogg. Chapter 16. “Paramountcy”
1. Problem of Inconsistency (pg. 1)
 in unitary states (UK, New Zealand), the doctrine of implied repeal, whereby the issue of inconsistent/
conflicting statutes are resolved by the later statute is deemed to have impliedly repealed the earlier
to the extent of the inconsistency
 in Canada, in the case where the conflicting/inconsistent statutes are enacted by the same legislative
body, the doctrine of implied repeal applies
 however, in the case of the statutes having been enacted by federal and provincial authorities, the
doctrine of implied repeal is of no help because neither provincial legislature nor federal parliament
has the implied or express power to repeal either
 the courts have adopted the doctrine of federal paramountcy whereby the inconsistencies are decided
in favour of the federal provisions
 the doctrine of federal paramountcy applies where there is a federal and a provincial law which are
both valid but inconsistent
 however, each law has to first held to be valid – and validity will depend on the pith and substance
(matter) of the law coming within the classes of subjects (i.e.; heads of power) allocated to the
enacting parliament or legislature
 if the law in question is not valid, then the doctrine of paramountcy need not be resorted to
2. Definition of Inconsistency (pg. 3)
 Canadian courts have followed the course of judicial restraint, whereby the narrow definition
(allowing provincial laws to survive so long as they don’t expressly contradict the federal law) when
defining the inconsistency in a statute in question
3. Express Contradiction (pg. 4)
(a) Impossibility of Dual Compliance (pg. 4)
 laws that directly regulate conduct, an express contradiction would occur when it is impossible
for a person to obey both laws - that is, the same citizens are being told to do contradictory
things, and as such, compliance with one is defiance of the other
 in such cases, provided it was within the matter of its jurisdiction to begin with, the federal
statute would prevail over the provincial decision in that particular case
(b) Frustration of Federal Purpose (pg. 7)
 there is another type of inconsistency, whereby a provincial law would frustrate the purpose of a
federal law – where there are overlapping federal and provincial laws and it is possible to comply
with both, but the effect of the provincial law would be to frustrate the purpose of the federal law
 the courts have to interpret the federal law to determine what the federal purpose is, and then
decide whether the provincial law would have the effect of frustrating the federal purpose
 in Rothmans, Benson & Hedges 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 provide that a retailer may display tobacco products; The Saskatchewan Tobacco
Control Act banned the display of tobacco products where persons under 18 were permitted
 the federal Act granted permission to display tobacco products, but that doesn’t necessarily
mean it entitled the display thereof; a retailer could comply with both laws by either refusing
to let people under 18 into its establishment, or by not displaying the tobacco products

4. Negative Implication (pg. 9)


(a) Covering the Field (pg. 9)
 in cases where one law expressly contradicts another, there is an obvious call for the application
of the paramountcy doctrine – this includes cases where a provincial law would frustrate the
purpose of a federal law
 unlike the US or Australia, Canada has rejected the covering the field or negative implication test
whereby a federal law precludes any provincial laws in that field, even if it is not contradictory of
the federal law
 a number of cases have decided that the negative implication test doesn’t have a place in
Canadian constitutional law – the SCC, therefore, doesn’t infer an inconsistency between federal
and provincial laws based on the idea that the federal law covers the field or carries a negative
implication forbidding supplementary or duplicative laws in the same field

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 however, obviously where the provincial law would frustrate the purpose of the federal law,
inconsistency will be inferred
 therefore, where a provincial law doesn’t contradict a federal law, but adds to it or supplements
it or is duplicative thereof, it is not deemed to be inconsistent with the federal law
(b) Express Extension of Paramountcy (pg. 14)
 for the most part, it has been assumed that when a provincial law in the same field is inconsistent
with the federal law, it would be rendered inoperative by the doctrine of paramountcy
5. Overlap and Duplication (pg. 16)
(a) Constitutional Significance (pg. 16)
 duplication, although it is untidy and wasteful, is not a test of inconsistency (or paramountcy) –
Multiple Access v. McCutcheon (1982)
 sometimes duplicative laws will be found to have differences that point to the competing statutes
having different purposes or aspects, but that only answers the question of whether the law is
valid (i.e.; within the sphere of the enacting body), not whether it is consistent
 whether the laws are inconsistent or not depends on whether they are compatible in
operation, not on their dominant purpose or aspect
(b) Double Criminal Liability (pg. 18)
 the existence of overlapping or duplicative penal provisions raises the possibility of a person
being liable to conviction under both a federal law and a provincial law for the same conduct
 however s. 11(h) of the Charter, making provisions precluding double jeopardy may be
applicable
(c) Double Civil Liability (pg. 19)
 double civil liability is also possible under overlapping or duplicative federal and provincial laws
 however, the objection that a plaintiff should not be allowed to recover double damages, the
court has pointed out that courts would not award damages to a plaintiff who had already
been fully compensated
6. Effect of Inconsistency (pg. 19)
 once it has been determined that a federal law is inconsistent with a provincial law, the doctrine of
federal paramountcy stipulates that the provincial law must yield to the federal law
 the provincial statute is rendered inoperative to the extent of the inconsistencies – however, the
doctrine will not affect the operation of those parts of the provincial law that are not inconsistent
with the federal law unless the inconsistent parts are inseparable from the consistent parts
 if the federal law in question is repealed, the provincial law will automatically revive (i.e.; come back
into operation) in its entirety

Rothmans, Benson & Hedges Inc. v. Saskatchewan , [2005] 1 S.C.R. 188


Facts:
 the federal Tobacco Act prohibited the promotion of tobacco products, except as authorized elsewhere in
the Act – the Act went on to provide that a retailer may display tobacco products
 The Saskatchewan Tobacco Control Act banned the display of tobacco products where persons under 18
were permitted
Held:
 the provincial legislation is not inoperative by virtue of the paramountcy doctrine
 the federal Act granted permission to display tobacco products, but that doesn’t necessarily mean it
entitled the display thereof
 a retailer could comply with both laws by either refusing to let people under 18 into its establishment, or
by not displaying the tobacco products

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6. PROPERTY AND CIVIL RIGHTS


Constitution Act, 1867, s. 92(13)
 confers upon the provincial legislatures the power to make laws in relation to “property and civil rights
in the province”

Hogg. Chapter 21. “Property and Civil Rights”


1. Importance of Property and Civil Rights (pg. 1)
 s. 92(13) of the Constitution Act 1867 confers upon the provincial legislatures the power to make
laws in relation to “property and civil rights in the province”
 most of the major constitutional cases have been based on the competition between one or more of
the federal heads of power on the one hand, and the property and civil rights under the province’s
jurisdiction on the other hand
2. History of Property and Civil Rights (pg. 2)
 generally speaking, historically the phrase “property and civil rights” is a an umbrella of the entire
body of private law which governs the relationship between subject and subject
 as opposed to the law which governs the relationship between the subject and the institutions of
government
 by enumerating the list of the federal heads of power by way of s. 91, the Constitution Act 1867 made
some changes in the historical definition of property and civil rights by including a number of matters
that would otherwise have come within the property and civil rights of the province
 additionally, the opening words of s. 91 whereby the provision is made for “peace, order, and good
government” contemplate that certain matters that would otherwise come under property and civil
rights may be justified under the federal jurisdiction
 nevertheless, most legal relationships between persons in Canada are covered under the province’s
property and civil rights head of power
3. Civil Liberties (pg. 3)
 unlike the US, civil rights in Canada are juristically distinct from civil rights by way of the BNA Act
 civil rights exist when a legal rule stipulates that under the circumstances one person is entitled to
something from another
 civil liberties exist when there is an absence of legal rules
 that means that whatever is not forbidden by law is a civil liberty
4. Local or Private Matters (pg. 4)
 under the wide scope of property and civil rights in the province, the province’s residual power under
s. 92(16) (“all matters of a merely local or private nature in the province”) is a bit redundant
5. Insurance (pg. 5)
(a) Reasons for Regulation (pg. 5)
 because the terms and conditions of insurance policies are stipulated by the insurer and not well
understood by the insured, governments sought to protect the latter by requiring the inclusion of
certain conditions in every policy
 insurance (unlike banking – s. 91(15)) isn’t specifically mentioned in the constitution Act 1867
(b) Provincial Power (pg. 6)
 in the late 1800s, both levels of government began regulating the insurance industry
 in Citizen’s Insurance Co. v. Parsons (1881), the Privy Council upheld an Ontario statute requiring
certain conditions be included in every policy of fire insurance entered into in the province, and
that the matter came under the property and civil rights head of power of the province
(c) Federal Power (pg. 7)
 the Insurance Reference (1916) referred to a federal statute, the Insurance Act 1910, that
prohibited any company from carrying on the business of insurance unless it had a federally
issued licence – it was held to be unconstitutional holding that the particular industry (i.e.;
insurance) came under the property and civil rights in the province and not trade and commerce
head of federal power
 it was followed by a series of cases in which the courts had to decide on a variety of federal
attempts to regain the jurisdiction which had been denied to the Dominion, generally deciding in
favour of the provinces
6. Business in General (pg. 8)

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 although business was ordinarily a matter of property and civil rights in the province, there are a
number of exceptions to the same whereby some industries have been held to fall within the federal
jurisdiction under the peace, order and good government power
 but the gaps in federal power are very important and extensive and are covered by the
provincial power over property and civil rights
 the double aspect doctrine also ensures substantial areas of concurrency even when federal power
exists
 nonetheless, courts have traditionally regarded the regulation of an industry or the more general
regulation of prices or profits or combinations in terms of its immediate impact upon the freedom of
contract and property rights, thereby making the restraints on businesses fall into the category of
property and civil rights in the provinces
7. Professions and Trades (pg. 10)
 regulation of professions and trades typically takes the form of restriction on entry coupled with rules
of conduct
 such regulation is no different for constitutional purposes than that of other industries and so comes
within the property and civil rights in the province
 e.g. Krieger v. Law Society of Alberta (2002) whereby the SCC determined that the Alberta law society
was empowered to regulate the legal profession and had jurisdiction even though the case involved a
crown attorney – the point being that like other lawyers in the province, the crown attorney, too,
came within the jurisdiction of the law society to enforce professional standards of behaviour
8. Labour Relations (pg. 10)
(a) Provincial Power (pg. 10)
 the regulation of labour relations over most of the economy is within provincial competence
under property and civil rights in the province
 even a scheme of unemployment insurance was held to be incompetent to the federal government
in Unemployment Insurance Reference (1937) – but this decision was overcome by an
amendment to the Constitution adding ‘unemployment insurance’ by way of s. 91(2A) as a new
head of federal power
(b) Federal Power (pg. 12)
 despite the power of labour relations being under the province’s jurisdiction, there is a
substantial federal presence in the field
 after the decision in Toronto Electric Commissioners v. Snider (1925), the federal parliament
amended its labour legislation to apply to employment upon or in connection with any work,
undertaking or business that is within the legislative authority of the parliament of Canada and
listed a number of industries which were within federal authority
 a decision in Stevedores Reference (1955) reaffirmed that the federal parliament has the power
to regulate employment in works, undertakings or business within the legislative authority of the
federal parliament
 the point being that the required connection with the federal undertaking is a functional or
operational one
 in the end, however, provincial competence over labour relations is the rule, and federal
competence is the exception – federal jurisdiction has to be found on the basis of the legislative
authority over the operation and not over the person of the employer
 labour relations in federally regulated industries is the exclusive preserve of federal law
(Commission du Salaire Minimum v. Bell Telephone Co. (1966) and Bell Canada v. Quebec (1988))
 federal jurisdiction over labour relations will extend outside the federal sectors of economy,
however, during times of national emergency (Anti-Inflation Reference (1976))
 during these emergencies, the provincial power is concurrent and operative unless and to the
extent that inconsistent federal laws have been enacted
9. Marketing (pg. 16)
(a) Reasons for Regulation (pg. 16)
 it is beneficial for both producers (improve bargaining power, uniform standards of quality, pool
proceeds, equalization of returns) and consumers (uniformity of standards of quality, enforced
inspections and labelling, elimination of deceptive marketing practices and dangerous or
unhealthy goods) to regulate the markets
(b) Federal Power (pg. 16)

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 the Privy Council started with a strong presumption that interference with contracts was a
matter within property and civil rights of the province making the federal enactment of an
effective marketing scheme impossible
 since the abolition of the privy council, the courts have interpreted the trade and commerce
powers more liberally
 allowing the federal parliament to regulate the marketing of products that flow across provincial
borders helped expand federal power
(c) Provincial Power (pg. 17)
 contracts of sale and purchase are prima facie matters within the property and civil rights in the
province and therefore under provincial jurisdiction
 provinces have the power to regulate intraprovincial trade, of course, however they lack the
power to regulate interprovincial trade
 however, Shannon v. Lower Mainland dairy Products Board (1938), Home Oil Distributors v.
A.G. B.C. (1940), and Carnation Co. v. Quebec Agricultural Marketing Board (1968) suggest a
very extensive power to regulate marketing within a province, notwithstanding the burden
incidentally placed on the residents of other provinces
 still, as Central Canada Potash v. Government of Saskatchewan (1978) points out, where
intraprovincial, or even international, marketing of a product is concerned, the federal
government can usurp the provincial powers
10. Securities Regulations (pg. 23)
(a) Provincial Power (pg. 23)
 the provinces have the power to regulate the trade in corporate securities as it is a matter within
property and civil rights in the province
 however, in the case of federally incorporated companies, the province has no power to confer
upon a provincial agency discretionary power over the issues of securities by such a federally
incorporated company because the capacity to raise capital is an essential attribute of corporate
status and such a provincial law would, therefore, impair the core of the federal enterprise
 except for the limited immunity of federally incorporated companies, the provincial power has
been given a broad scope by the courts
(b) Federal Power (pg. 25)
 the federal incorporation power authorizes the regulation of the issue of securities by federally
incorporated companies, and authorizes some degree of regulation of trading in those securities
11. Property (pg. 25)
(a) General (pg. 25)
 the creation of property rights (i.e.; their transfer and their general characteristics) are within
property and civil rights in the province
(b) Foreign Ownership (pg. 26)
 citizenship is a federal head of power by way of s. 91(25) whereby ‘naturalization and aliens’ is a
federal head of legislative power
 in Morgan v. A.G. P.E.I. (1975) the issue was based on the qualification of residence, not
citizenship, insofar as being able to acquire holdings of real property in P.E.I. so it was upheld
(c) Heritage Property (pg. 27)
 the SCC held that protection of heritage or cultural property was within the provincial
jurisdiction under s. 92(13) (Kitkatla Band v. British Columbia (2002))
12. Debt Adjustment (pg. 27)
 the law of contract, including the annulment or reformation of harsh/unconscionable contracts is
under the property and civil rights head of provincial power
 and although s. 92(13) stipulates “in the province” (and s. 91(19) gives the allocation of “interest”
and s. 91(21) of “bankruptcy and insolvency” to the federal government), the provinces have not
been deterred from regulating debtor-creditor relationships
 mostly with the purpose of protecting local debtors from the enforcement efforts of out-of-
province creditors
13. Consumer Protection (pg. 28)
 the phrase consumer protection is too broad and vague to serve as matter for the purpose of the
distribution of power

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 it has to be broken down into smaller, more distinct concepts before it can be placed in its correct
constitutional slot – and the results of this breaking down will help to determine whether the
consumer protection law is within the federal or provincial jurisdiction
14. Extraterritorial Competence (pg. 28)
 the words “in the province” in s. 92(13) make it clear that there is a territorial limitation on the
provincial power

Syllabus Cases:

1. Citizen’s Insurance Co. v. Parsons, (1881) 7 A.C. 96 (P.C.)


Facts:
 Parsons was the owner of a hardware store that was covered by an insurance policy provided by Citizen
Insurance Co. of Canada – when a fire burnt down the store Parsons tried to collect on the insurance but
he was denied on account of an exemption clause found in the contract
 Parsons sued the Insurance Company for not conforming to the Ontario Fire Insurance Policy Act
 the Insurance Company argued that the Act was ultra vires of the province, and only the federal
government could regulate matters in relation to the trade and commerce power
Held:
 the case largely turned on the issue of the law overlapping two heads of power
 it was noted that, as a general proposition, that the British North America Act, 1867 must be interpreted
as an ordinary statute
 the Privy Council upheld an Ontario statute requiring certain conditions be included in every policy of fire
insurance entered into in the province, and that the matter came under the property and civil rights head
of power of the province
 The Council interpreted the property and civil rights clause of s. 92(13) in the Constitution Act, 1867 to
be read expansively to include contracts related to insurance to be within the power of the provincial
governments, while the countervailing Trade and Commerce clause of s. 91(2) was to be read narrowly

2. Reference re Securities Act, 2011 …. covered in next chapter “Trade and Commerce”

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7. TRADE AND COMMERCE


Constitution Act, 1867, s. 91(2), s. 92(13), s. 92A
 s. 91(2) confers upon the federal parliament the power to make laws in relation to the “regulation of
trade and commerce”
 s. 92(13) of the Constitution Act 1867 confers upon the provincial legislatures the power to make laws in
relation to “property and civil rights in the province”
 most of the major constitutional cases have been based on the competition between one or more of the
federal heads of power on the one hand, and the property and civil rights under the province’s
jurisdiction on the other hand
 s. 92A provides the provinces with jurisdiction over non-renewable natural resources, forestry resources,
and electrical energy

Hogg. Chapter 20. “Trade and Commerce”


1. Relationship to Property and Civil Rights (pg. 1)
 s. 91(2) confers upon the federal parliament the power to make laws in relation to the “regulation of
trade and commerce”
 s. 92(13) of the Constitution Act 1867 confers upon the provincial legislatures the power to make
laws in relation to “property and civil rights in the province”
 most of the major constitutional cases have been based on the competition between one or more of
the federal heads of power on the one hand, and the property and civil rights under the province’s
jurisdiction on the other hand
 the two powers seem to overlap since trade and commerce is carried on by way of contracts, which
gives rise to civil rights over property
 however, the courts have narrowed the two classes so as to eliminate the overlapping and make
each power exclusive (the leading case being Citizen’s Insurance Co. v. Parsons (1881))
 since the case, it has generally be accepted that intraprovincial trade and commerce is a
matter within provincial power
 and federal trade and commerce is confined to interprovincial or international trade and
commerce and general trade and commerce
2. Interprovincial or International Trade and Commerce (pg. 3)
(a) In the Privy Council (pg. 3)
 the Citizen’s Insurance Co. v. Parsons didn’t define when trade and commerce became sufficiently
interprovincial so as to come within the federal power
 the Haldane period did so
 The Insurance Reference (1916) set the pattern, followed by several other cases – the Privy
Council’s last consideration of the trade and commerce power was in the Margarine Reference
(1951)
(b) In the Supreme Court of Canada (pg. 5)
 since the abolition of the privy council, there has been a resurgence of the trade and commerce
power – starting with Ontario Farm Products Marketing Reference (1957) whereby four judges
implied that federal power would extend to some transactions which were completed within a
province
 R v. Klassen was a departure from the Privy Council decisions, and was confirmed in Caloil v. A.G.
Canada (1971) where the SCC unanimously upheld a federal prohibition on the transportation or
sale of imported oil west of the Ottawa valley
 in Re Agricultural Products Marketing Act (1978) a federal marketing plan was upheld; the same
model of interlocking federal and provincial legislation was used to create a national chicken
marketing plan in Federation des producteurs v. Pelland (2005)
3. General Trade and Commerce (pg. 11)
 the Citizen’s Insurance Co. v. Parsons case suggested two categories of trade and commerce:
 interprovincial or international trade and commerce;
 and general regulations of trade affecting the whole dominion (the general category of trade and
commerce)
 the latter had generally been rejected as a support for federal policies of economic regulations –
until General Motors v. City National Leasing (1989)
 the only use of the general trade and commerce power until the General Motors case was the Canada
Standard Trade Mark case (1937) in which a federal statute establishing a national mark called the
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Canada Standard was upheld – the use of the mark was voluntary, but if it was used, then the federal
standards as to the quality of the product marked as such had to be complied with
 the case seemed to decide that the general trade and commerce would authorize federal standards of
production or manufacture for products traded locally
 goods and services move across provincial borders, as do consumers who take their opinions about
products and manufacturers with them – the uniform, national protection of trademarks is closely
connected with the mobility of goods and services and individuals, and is part of the regulation of
competition
 General Motors was a challenge to the validity of the civil remedy that had been introduced into the
legislation in 1975; the SCC unanimously held that the Competition Act was a valid exercise of the
general trade and commerce power
 the test applied consisted of 3 elements from previous cases, and 2 new elements:
 the presence of a general regulatory scheme;
 the oversight of a regulatory agency;
 a concern with trade as a whole rather than with a particular industry;
 the legislation should be of a nature that the provinces jointly or severally would be
constitutionally incapable of enacting;
 and the failure to include one or more provinces or localities in a legislative scheme would
jeopardize the successful operation of the scheme in other parts of the country
 the general branch of the trade and commerce power authorizes the regulation of intraprovincial
trade
4. Specific Topics (pg. 18)
 when attention is directed to specific topics (e.g.; regulation of businesses, of professions and trades,
labour relations, etc.), it is found that trade and commerce is not the dominant source of power
 under property and civil rights in the province, legislative power is, for the most part -provincial

1. General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641
Facts:
 the allegations that gave rise to the litigation concerned price discrimination in the financing of the
purchase of vehicles by companies that lease fleets of automobiles and trucks – these purchases, and the
associated financing arrangements, were transactions that, individually, took place within a single
province
 CNL leased cars and trucks nationwide and was in competition with other national fleet leasing
companies – it purchased the majority of its vehicles from franchised GM dealers (not GM itself)
 CNL alleged that GM had been giving preferential interest rate support to its competitors, and the
exclusion of CNL from the preferential interest rate support was price discrimination contrary to s. 34(1)
(a) of the Combines Investigation Act (now the Competitions Act)
 CNL said that the monies saved by its competitors was equivalent to lost profits for CNL
 the case was a challenge to the validity of the civil remedy that had been introduced into the legislation in
1975
Issues:
 should the federal legislation be read down to exclude such intraprovincial activity which could be left to
provincial law?
Held:
 parliament, as well as the legislature, has the constitutional power to regulate intraprovincial aspects of
competition
 prior to this case, the general category of trade and commerce had generally been rejected as a support
for federal policies of economic regulations
 the SCC unanimously held that the Combines Investigation Act was a valid exercise of the general trade
and commerce power
 the test applied consisted of 3 elements previously introduced through prior cases and 2 new elements:
 1. the presence of a general regulatory scheme;
 2. the oversight of a regulatory agency;
 3. a concern with trade as a whole rather than with a particular industry;
 4. the legislation should be of a nature that the provinces jointly or severally would be
constitutionally incapable of enacting;
 5. and the failure to include one or more provinces or localities in a legislative scheme would
jeopardize the successful operation of the scheme in other parts of the country

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 in this case: Dickson C. J. applied the vapor test (with added elements 4 and 5 )
 1. there was a regulatory scheme;
 2. it operated under the oversight of a regulatory agency;
 3. it was concerned with trade in general, not with a particular place or industry
 4&5. only national regulation of competition could possibly be effective because of the ability of
factors of production to move freely from one province to another
 the court held that competition cannot be successfully regulated by federal legislation which is restricted
to interprovincial trade. The conclusion was that Parliament (as well as Provinces) has the constitutional
power to regulate intraprovincial aspects of competition.

2. Reference re Securities Act (Canada), 2011 ABCA 77


Facts:
 securities (along with insurance and trust companies) has been regulated by the provinces under the
jurisdiction of property and civil rights in the province (s. 92(13))
 banking falls under federal jurisdiction under s. 91(15)
 the involvement of the federal government in the securities industry has historically been minimal
 the primary focus of the various provincial statutes is on selling of securities – there are only a few
provisions that regulate the buying of securities
 the federal government now proposes to enact comprehensive legislation regulating the securities
industry at the national level – the proposed legislation mirrors the existing provincial securities
 s. 250 provides that the legislation will only become effective in a given province provided that province
consents to be included, agreeing to suspend its jurisdiction over securities
 small portions of the proposed legislation, taken in isolation, are a valid exercise of the federal criminal
power
Issues:
 does the parliament of Canada have the legislative authority under the Constitution Act 1867 to pass:
 1-a. s. 295, 296, and 297 of the Budget Implementation Act;
 1-b. legislation that is coextensive in substance with the Alberta Securities Act; and
 1-c. legislation that is the same or similar to the proposed Canadian securities Act
 does the parliament of Canada have the legislative authority under the Constitution Act 1867 to pass
legislation that would exclude the application of the Alberta Securities Act:
 2-a. to market participants who elect to be regulated under the federal regime only;
 2-b. to market participants who have a substantial connection to a jurisdiction other than Alberta; or
 2-c. by an express paramountcy clause or similar unilateral action
Held:
 just because the federal government believes it would be advantageous to concentrate economic power
nationally does not alter the terms of the Constitution Act
 similarly, regardless of what the court may deem to be ‘better’ (i.e.; national or provincial system of
securities regulation), there are limits to how far the court should go in reallocating the distribution of
constitutional powers despite the fact that the constitution should be interpreted having regard to
changing social, technological, and market standards
 as such, the constitutional division of powers, whether inconvenient or not, has to be answered in
accordance with the principles of constitutional statutory interpretation and not the court’s assessment
of the ideal allocation of jurisdiction
 the proposed federal legislation, therefore, intrudes into a provincial head of power and would, if enacted,
be unconstitutional
 the government obviously feels that national regulation of the securities industry would be in the
national interest, nevertheless, the division of powers should not lightly be disrupted by any one level of
government or the courts
 question 1-c should be answered in the negative, and in light thereof, questions 1-a and 1-b need not be
answered
 question 2 is inappropriate to be answered

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8. PEACE, ORDER, AND GOOD GOVERNMENT


Constitution Act, 1867, s. 91 (opening words)
 the opening words of s. 91 of the Constitution Act 1867 confer on the federal parliament the power to
make laws for the peace, order, and good government of Canada (p.o.g.g)
 the pogg power is residuary in its relationship to the provincial heads of power because it is expressly
confined to matters not coming within the classes of subjects assigned exclusively to the legislatures of
the provinces

Hogg. Chapter 17. “Peace, Order, and Good Government”


1. Residuary Nature of Power (pg. 1)
 the opening words of s. 91 of the Constitution Act 1867 confer on the federal parliament the power to
make laws for the peace, order, and good government of Canada (pogg)
 the pogg power is residuary in its relationship to the provincial heads of power because it is expressly
confined to matters not coming within the classes of subjects assigned exclusively to the legislatures
of the provinces
 thereby any matter which doesn’t come within the provincial head of power must be within the
power of the federal parliament
 and so, the residuary nature of the federal power ensures that every possible subject of legislation
belongs to one or other of the federal parliament or the provincial legislature
 s. 92(13), property and civil rights in the province is apt to include most of the private law of
property, contracts and torts
 in the hands of the privy council, it became a kind of a residuary power itself
 s. 92(16), “generally all matters of a merely local or private nature in the province” is also
potentially a sweeping head of provincial power
 from the pogg power the three branches of legislative power have grown:
 the gap branch;
 the national concern branch; and
 the emergency branch
2. The “Gap” Branch (pg. 5)
 one purpose of the pogg power is to fill the gaps in the scheme of distribution of powers (albeit there
are very few such gaps)
 with the advent of technology and societal changes, it is always possible to classify a law by labelling
its matter/pith and substance with a name which doesn’t seem to come within any of the enumerated
heads of power, one of which may be the pogg power
 for example, in most cases a ‘new’ or unrecognized kind of law doesn’t have any necessary or
logical claim to come within pogg – which head of power it comes under depends on the nature of
the new matter, and the scope of one of which is the pogg power
 the pogg language completes the incomplete assignment of power by covering the limited and
unusual cases where the application of the pogg power is almost logically required
3. The “National Concern” Branch (pg. 8)
(a) History of National Concern (pg. 8)
 the history of the national concern branch of pogg starts with Russell v. The Queen (1882) and
was further elaborated in the Local Prohibitions case (1896) – but it took its name from Canada
Temperance Federation case (1946)
 the core of the national concern branch of pogg is that some matters of legislation, even when
their origin is local and provincial, could acquire national dimensions/concern and thereby come
within the federal parliament’s pogg power
 although some matters can fall under the double aspect doctrine, whereby both levels of
government are permitted to enact laws, there are still some matters that are of general concern
to the Dominion, upon which uniformity of legislation is desirable
 this was later confronted with the view that the pogg power was only an emergency power – but
this was again countered with the idea that even outside the times of emergency, there are
matters that are the concern of the Dominion as a whole
 the test of national concern branch of pogg is whether the matter of the legislation goes beyond
local or provincial concern or interests and must, due to its nature, be the concern of the
Dominion as a whole

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 the national concern branch of pogg has been recognized in many cases since 1946, and has been
the sole basis of reasoning in three leading SCC cases:
 Johannesson v. West St. Paul (1952),
 Munro v. National capital Commission (1966) , and
 R. v. Crown Zellerbach (1988) – the court held that marine pollution satisfied the national
concern test and so the federal Ocean Dumping Control Act was upheld in its application to
marine waters within the boundaries of British Columbia
 although the national concern branch of pogg wasn’t the sole ground of the decision therein,
another case that could be added to the list is Ontario Hydro v. Ontario (1993)
(b) Definition of National Concern (pg. 13)
 a matter of national concern must be of importance or significance to all parts of Canada
 although uniformity may be desirable with respect to many topics, since there is no constitutional
requirement of uniformity, uniformity is not, in and of itself, the defining factor of a matter
coming within the national concern branch of the pogg power
 however, where uniformity of law throughout the country is not merely desirable, but actually
essential (in that the issue is beyond the power of the provinces to deal with it – e.g.; when the
failure of one province to act would injure the residents of another province)then the matter
would fall into the category of the national concern branch of the pogg power
 e.g.; in the case of marine pollution (Crown Zellerbach), the failure of one province to protect
its waters would probably lead to the pollution of the waters of other provinces as well as the
(federal) territorial sea and high sea
 a need for one national law which cannot realistically be satisfied by cooperative provincial
action because the failure of one province to cooperate would carry with it adverse consequences
for the residents of the other provinces, is justification for invoking the pogg power
(c) Distinctness (pg. 15)
 in the Anti-Inflation Reference (1976), the SCC upheld federal wage and price controls under the
emergency branch of the pogg power, with the minority leaving open the possibility that the
same could also have been supported under the national concern branch was argued against by
the majority stating that to qualify as a matter coming within the national concern branch of the
pogg power, it must be distinct (having a degree of unity that makes it indivisible, making it
distinct from provincial matters and a sufficient consistence to retain the bounds of form
 the requirement of distinctness was also articulated in Crown Zellerbach in that the requirement
of distinctness is an essential safeguard, in that otherwise, the national concern branch of pogg
would tend to absorb the entire catalogue of provincial powers if subjects were too broadly
interpreted
 a distinct matter would also have to satisfy the provincial inability test in order to be admitted to
the national concern branch of pogg
(d) Newness (pg. 16)
 conceptually new subject matters that are not clearly covered by an enumerated head and had
not previously been considered by the courts, that the courts have yet to allocate to either a
provincial or federal head of power (and are also, thereby, historically new) might help to
determine the distinctness of a matter
4. The “Emergency” Branch (pg. 19)
(a) The Non-Emergency Cases (pg. 19)
 during the period when Lord Haldane sat on the Privy Council (1911 to 1928) the national
dimensions dictum was ignored, and the notion that only an emergency would serve to enable the
federal parliament to exercise its pogg power was consistently applied
 although the word emergency wasn’t specifically used, the emergency test first emerged in the
Boards of Commerce case (1922) in which the court said that high exceptional or abnormal
circumstances would be required to justify the invocation of the pogg power – they gave war or
famine as examples
 a period of evil so great and general that it was, at least for the period, a menace to the national
life of Canada, and so pressing that the national parliament was called on to intervene to protect
the nation from disaster
 it was argued that pogg, like trade and commerce, could not be used to regulate a particular
industry merely because the industry is nation-wide and important to the national economy
(b) War (pg. 23)

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 during WWI, the federal parliament enacted the War Measures Act empowering the federal
government to make regulations on almost any conceivable subject
 it was also brought into effect during WWII
 in the Ford Frances Case (1923), the privy council held that in a sufficiently great emergency such
as that arising out of war, the pogg power would authorize laws which in normal times would be
competent only to the provinces
 the emergency branch of pogg should be confined to the temporary and extraordinary role
required for national regulation in time of actual war (or other emergency)
(c) Apprehended Insurrection (pg. 24)
 besides the two world wars, the War Measures Act was also proclaimed during the October Crisis
in 1970 (during which a violent Quebec separatist group had kidnapped a British diplomat and a
Quebec cabinet minister)
 the federal government proclaimed that apprehended insurrection exists and thereby the
War Measures Act was brought into force
(d) Inflation (pg. 25)
 the most recent application of the emergency doctrine can be found in the Anti-Inflation
Reference (1976) in which the federal Anti-Inflation Act was upheld as an emergency measure
and the regulations made under it controlled increases in wages, fees, prices, profits, and
dividends
 SCC held that the Act was valid as an exercise of the federal government’s emergency power
(e) Temporary Character of Law (pg. 27)
 one important limitation on the federal emergency power is that it will support only temporary
measures – although this is generally regarded as an obvious proposition considering that an
emergency is a temporary phenomenon
 there is, however, the exception that an emergency, although itself temporary, may be caused by
structural defects that need to be corrected not only to cure the emergency, but also the prevent
the occurrence of future emergencies – and such preventative legislations would surely have to be
permanent
 no temporary measure has been upheld under the emergency power
5. Relationship Between National Concern and Emergency (pg. 29)
 the gap branch of pogg stands on its own and requires no reconciliation with the national concern
and emergency branches
 it has been declared that the privy council was wrong in asserting that only an emergency would
justify the invocation of the pogg power
 however, there are a class of case for which only an emergency will suffice to found federal power
 with matters that fall into categories that are sweeping or pervasive, they cannot be categorically
said to fall under the federal subject matters simply on the basis of national concern, because
otherwise, there would be no limit to the reach of federal legislative powers – in normal times, such
categories must be broken down to fall into either the federal or the provincial heads of power and
only in an emergency would the federal parliament assume power over the whole of a sweeping
category
 it is said that the pogg power performs two separate functions in the constitution:
 it gives the federal parliament permanent jurisdiction over distinct subject matters which do not
fall within any of the enumerated heads of provincial power under s. 92 and which are, by the
virtue of their nature, of national concern
 it gives federal parliament temporary jurisdiction over all subject matters needed to deal with an
emergency whereby the emergency doctrine operates as a partial and temporary alteration of
the distribution of power between parliament and the provincial legislature
 the leading national concern cases involve legislation over a more distinct and specific subject matter
where no emergency is (or needs to be) necessarily called for

Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373


Facts:
 there had been a period of about 20 months of double-digit inflation accompanied by high rate of
unemployment
 the majority of the court held that this situation could be characterized by the government and
parliament as an emergency

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Issues:
 1. is the Anti-Inflation Act ultra vires the Parliament of Canada in whole or in part, and if so, in what way
and to what extent
 2. if the Anti-Inflation Act is intra vires the Parliament of Canada, is the Agreement between the
government of Canada and the government of Ontario effective under the Act to render the Act binding
on the provincial public sector
Held:
 1. the Act is not ultra vires in whole or in part
 2. the agreement is not effective or application to the provincial public sector
 the majority of the court held that this situation could be characterized by the government and
parliament as an emergency
 the SCC upheld federal wage and price controls under the emergency branch of the pogg power
 the minority left open the possibility that the same could also have been supported under the national
concern branch – which was argued against by the majority stating that to qualify as a matter
coming within the national concern branch of the pogg power, it must be distinct (having a degree of
unity that makes it indivisible, making it distinct from provincial matters and a sufficient consistence
to retain the bounds of form
 in order for a matter to qualify as one of national concern falling within the federal pogg power it must
have ascertainable and reasonable limits, insofar as its impact on provincial jurisdiction is concerned
(Reference re Anti-Inflation Act)

R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401


Facts:
 during its logging operations, the respondent dumped waste into the waters of an area within the
province of British Columbia and was charged against s. 4(1) of the (federal) Oceans Dumping Control
Act
 the legislation prohibits the dumping of any substance at sea except in accordance with the terms of a
permit
 the respondent had a permit, but it didn’t cover this site
 trial and appeal courts held s. 4(1) to be ultra vires the parliament
Issues:
 is s. 4(1) constitutional in its application to the dumping of waste in waters within a province – i.e.; is it
constitutional as a federal enactment
Held:
 the appeal should be allowed
 the jurisdiction under s. 91(12) – seacoast and inland fisheries – isn’t sufficient by itself to support the
constitutionality of s. 4(1)
 a basis for federal legislative jurisdiction to control marine pollution generally in provincial waters can’t
be found in any of the heads under s. 91
 however, s. 4(1) is constitutionally valid as enacted in relation to a matter falling within the national
concern doctrine of the pogg power of the parliament of Canada
 the national concern doctrine (which is separate from the emergency doctrine) applies to both new
matters and to matter which, although originally matters of a local or private nature in a province, have
become matters of national concern
 the matter, to qualify as a matter of national concern, must have a singleness, distinctiveness and
indivisibility that distinguishes it from matters of 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 regulation of the intraprovincial aspects of the matter – and the
control of marine pollution meets the test
 in order for a matter to qualify as one of national concern falling within the federal pogg power it must
have ascertainable and reasonable limits, insofar as its impact on provincial jurisdiction is concerned
(Reference re Anti-Inflation Act)
 marine pollution satisfies the national concern test because of its predominantly extra-provincial as well
as international character and implications
 relying on the provincial inability test as a reason for finding that marine pollution is a matter of
national concern – because the interrelatedness of the intraprovincial and extra-provincial aspects of the
matter that it requires a single or uniform legislative treatment

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 therefore, a need for one national law which cannot realistically be satisfied by cooperative
provincial action because the failure of one province to cooperate would carry with it adverse
consequences for the residents of the other provinces, is justification for invoking the pogg power
 the requirement of distinctness is an essential safeguard, in that otherwise, the national concern branch
of pogg would tend to absorb the entire catalogue of provincial powers if subjects were too broadly
interpreted

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9. CRIMINAL LAW
Constitution Act, 1867, s. 91(27), s. 92(15)
 s. 91(27) confers on the federal parliament the power to enact provisions for the criminal law including
the procedure in criminal matters, but excluding the constitution of courts of criminal jurisdiction
 under this section, the criminal law is a federal responsibility – unlike the US and Australia where it is a
state responsibility – and has been codified in one federally-enacted Criminal Code since 1892
 criminal trials take place in provincial courts, but the rules of procedure and evidence are federal as per
s. 91(27)
 because the Criminal Code is enforced by the provinces, and the decision to investigate, charge, and
prosecute offences are matters of provincial policy, the criminal law isn’t as centralized as other fields of
federal legislative competence
 s. 92(15) confers on the provincial legislatures the power to enact provisions for the imposition of
punishment by fine, penalty, or imprisonment for the enforcing of any law of the province made in
relation to any matter coming within the classes of subjects given to the provinces

Hogg. Chapter 18. “Criminal Law”


1. Distribution of Powers (pg. 1)
 under s. 91(27), the criminal law is a federal responsibility – unlike the US and Australia where, so
that criminal law reflects local conditions and sentiments, it is a state responsibility – and has been
codified in one federally-enacted Criminal Code since 1892
 the provincial role in criminal justice derives from s. 92(14) that authorizes provincial policing and
prosecution of offences under the Criminal Code
 the establishment of courts of criminal jurisdiction is expressly included in the provincial power by s.
92(14) and expressly excluded from federal power by s. 91(27)
 criminal trials take place in provincial courts, but the rules of procedure and evidence are federal as
per s. 91(27)
 therefore, because the Criminal Code is enforced by the provinces, and the decision to investigate,
charge, and prosecute offences are matters of provincial policy, the criminal law isn’t as centralized
as other fields of federal legislative competence
 jurisdiction over correctional institutions is divided between the two levels:
 s. 91(28) gives parliament jurisdiction over penitentiaries that hold offenders serving two years
or more;
 s. 92(6) gives the provinces jurisdiction over prisons that hold offenders sentenced to less than
two years
 s. 92(15) authorizes the provinces to enact penal sanctions for the enforcement of provincial laws,
thereby implying a substantial degree of concurrent power to enact penal laws that are
indistinguishable from federal criminal laws
2. Definition of Criminal Law (pg. 3)
 before the P.A.T.A. case, in the Board of Commerce case (1922), the power to enact criminal law was
held to be applicable only where the subject matter was one which, by the virtue of its nature,
belonged to the domain of criminal jurisprudence – however, this definition was too narrow
 in the P.A.T.A. case, it was made clear that the federal power was not confined to what was criminal
by the law of England or of any province in 1867, and that the power may extend to legislation to
make new crimes
 but this definition is too wide as it would enable the federal parliament to expand its jurisdiction
indefinitely making it so that any federal law which employs a prohibition and penalty as its
primary mode of operation was to be upheld – i.e.; if the only characteristic of the criminal law
are the formal ones (i.e.; prohibition and penalty), then there is no principled basis for denying
the criminal classification to a law with those characteristics
 the Margarine Reference (1951) provided the next ingredient in the definition of criminal law: a
typically criminal public purpose – the court said that a prohibition was not criminal unless it served
a public purpose which can support it as being in relation to the criminal law
 a purpose that qualifies a law as criminal doesn’t necessarily involve the prevention of harm to other
human beings (e.g.; protection of the environment, prevention of cruelty to animals qualify as
criminal laws)
 in R v. Malmo-Levine (2003), the SCC made it clear that the presence of harm to others is not a
requirement of a valid criminal law
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3. Food and Drugs (pg. 8)


(a) Food and Drug Standards (pg. 8)
 food and drug legislation making illegal the manufacture or sale of dangerous products,
adulterated products, or misbranded products is within the criminal law power
 in the Margarine Reference, the prohibition on the manufacture or sale of margarine was struck
down on the basis that the purpose of the legislation was the economic one of protecting the
dairy industry – if the basis that margarine was injurious to health (as had been stated in the
preamble to the legislation when it was originally enacted) had been continued, then it would
have satisfied the requirement of a typically criminal public purpose, but this was no longer true,
and as such, the legislation no longer served a valid criminal law purpose
 the federal government, in light of medical facts, conceded that margarine was not injurious
to health, thereby destroying what was originally a secure criminal law foundation for the
legislation
 in Labatt Breweries v. A.G. Canada (1979), the court acknowledged that the criminal law power
could be used to enact laws for the protection of health, however, the alcoholic requirement for
light beer is not related to health
 similarly, that the criminal law power could be used to enact laws for the prevention of
deception, but that the specification of the compositional standards of light beer could not be
supported on this ground either
(b) Illicit Drugs (pg. 10)
 the non-medical use of drugs is covered under the Narcotic Control Act, which prohibits the
production, importation, sale, and possession of a variety of illicit drugs
 in Schneider v. The Queen (1982), it was argued that BC’s Heroin Treatment Act, which provided
for the compulsory apprehension, assessment, and treatment of drug addicts, was really a
criminal law since it authorized the deprivation of liberty
 however, since the Act was designed to treat and cure drug addicts and not actually deter or
punish them, the court held that the medical treatment of drug addiction came within the
provincial authority over public health as a local or private matter within s. 92(16)
(c) Tobacco (pg. 11)
 in RJR-MacDonald v. Canada (1995), the validity of the federal Tobacco Products Control Act,
which prohibited the advertising of cigarettes and other tobacco products, and required the
placement of health warnings on packages, was under review
 in the case of the warnings, the court held that the protection of public health was sufficient
to support the exercise of criminal-law power
 insofar as prohibiting the advertising of cigarettes (especially in light of the fact that the
manufacture, sale, and possession of tobacco remained lawful), the court found that
advertising itself was not a dangerous act, and the advertising of consumer goods was
normally within the legislative jurisdiction of the provinces under their power over property
and civil rights, but nonetheless that restrictions on tobacco advertising are a valid exercise
of parliament’s criminal law power because the ban on advertising of tobacco products still
pursued the public purpose of protecting the public from a dangerous product
4. Health (pg. 12)
 health is not a single matter assigned by the constitution to one or the other level of government
 like inflation and the environment, health is an amorphous topic distributed between the federal
parliament and the provincial legislature, depending on the purpose and effect of the particular
health measure in question
5. Environmental Protection (pg. 12.1)
 the protection of the environment was held to be of a public purpose that would support a federal law
under the criminal law power held in R. v. Hydro-Quebec (1997)
6. Abortion (pg. 13)
 Canada’s Criminal Code used to prohibit abortions – unless it was certified that the continuation of
the pregnancy would endanger the mother’s life or health
 it was argued in Morgentaler v. The Queen (1975) that the prohibition on abortions as a protection
for the health of the pregnant woman was inappropriate because with the advent of modern
techniques, thereby the prohibition not being authorized by the criminal law power
 the court, however, held that the principal objective of the prohibition was to protect the state
interest in the foetus, making the prohibition a valid exercise of the criminal law power

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 in the Morgentaler case (1988), after the enactment of the Charter of Rights, the law was struck down
as contrary to s. 7 of the Charter, and as such the Criminal Code no longer prohibits abortion
7. Competition Law (pg. 14)
 it has been argued that because a competitive market is the best means of promoting the efficient use
of labour, capital, and natural resources, governmental regulation of the industry is less necessary;
however, since economic activity ignores provincial boundaries, it is difficult to regulate anti-
competitive practices at the provincial level
 as such, it is generally agreed that such regulation has to be federal if it is to be effective
 in 1975, the Combines Investigation Act was expanded to apply to the service industry
 the Restrictive Trade Practice Commission was given the power to make orders compelling the
cessation of certain anti-competitive practices, and a new civil remedy was added
 in 1986, the name of the Combines Investigation Act was changed to the Competition Act and
the Restrictive Trade Practice Commission replaced by the Competition Tribunal
 the SCC, in ruling on General Motors v. City National Leasing (1989), upheld the constitutionality
of the civil remedy, saying that the Act was a valid law under the trade and commerce power and
so there was no reason that its enforcement should be limited to criminal sanctions
8. Sunday Observance Law (pg. 17)
(a) Federal Power (pg. 17)
 before 1903, laws regarding Sunday observance were competent to the provinces due to the fact
that limitations on work and play were regarded as in relation to civil rights or local matters in
the province
 cases like Hamilton Street Railways (1903), Henry Birks (1955), established that limitations
imposed on work and play that are done so for religious reasons are criminal law within the
competence of the federal Parliament
 the Parliament enacted the Lord’s Day Act in 1906 prohibiting work and commercial activities on
the Lord’s Day (i.e.; Sunday)
 in R v. Big M Drug Mart (1985), the SCC confirmed that the Lord’s Day Act was a valid
exercise of criminal law power because it pursued the religious purpose of preserving the
sanctity of the Christian Sabbath
 however, the court further held that the Act offended the Charter guarantee of freedom of
religion because it compelled the observance of the Christian Sabbath on non-Christians,
and as such, it pursued a purpose that was contradictory to Charter values, thereby
making the Act unconstitutional
(b) Provincial Power (pg. 19)
 as a matter of property and civil rights or local matters in the province, provinces have the
authority to regulate the conduct of most business or recreation in the province, along with
labour relations
 this includes the limits on hours of work for labour, as well as the imposition of limits on the
business hours of commercial establishments
 unlike the Big M Drug Mart case, in R v. Edwards Books and Art (1986), the SCC said that the
Ontario law prohibiting retail stores from opening on Sundays had the requisite secular purpose
of allowing for a common pause day for retail workers
 in this case, because the law was phrased in such a way that the language was secular, the
province retained the power over the law (which was lost in Hamilton Street Railways due to
the religious overtones of the law)
9. Gun Control (pg. 20)
 the Firearms Act, in 1995, required all guns to be registered and all gun owners to be licensed
 the SCC in Re Firearms Act (2000) held that the act was a valid exercise of criminal law power as its
purpose was to restrict access to an inherently dangerous thing
 the Act’s requirements were all aimed at public safety
 although true that guns were property, the Act’s focus on public safety distinguished it from
provincial property powers – the effect on property was incidental to the main purpose of the act,
which was public safety
10. Prevention of Crime (pg. 21)
(a) Prevention in General (pg. 21)
 a law may be validly enacted in relation to criminal law, even though the law itself does not have
the characteristics of a criminal law
 e.g.; a law which simply repealed a criminal law
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 its most important application, however, is in support of laws aimed at the prevention of crimes
 e.g.; controlling the possession of guns
 although they depart from the traditional format of criminal law, laws of this kind are valid
(b) Young Offenders (pg. 22)
 for similar reasons, the federal Juvenile Delinquents Act (which was replaced by the Young
Offenders Act in 1984, which was then replaced by the Youth Criminal Justice Act in 2003, was
upheld under the criminal law power
11. Criminal Law and Civil Remedy (pg. 23)
(a) Federal Power Generally to Create Civil Remedies (pg. 23)
 the federal Parliament has no independent power to create civil remedies akin to its power over
criminal law
 therefore, if the pith and substance of a federal law is the creation of a new civil cause of
action, then the law will be invalid since it will come within the provincial head of power
under s. 92(13) (property and civil rights in the province)
 where the pith and substance of a federal law is not the creation of a civil remedy, but some other
matter within federal power, then the remedy is valid as incidental to the main purpose of the
law
(b) Criminal Law Power to Create Civil Remedies (pg. 25)
 criminal law power differs from other heads of federal power in that the criminal law power, by
its very nature, contemplates public, rather than private enforcement
 however, a civil remedy cannot be the only sanction for the breach of a criminal statute; the
presence of traditional criminal sanctions as the primary mode of enforcement would be essential
to the classification of the statute as a criminal law
 laws are classified in accordance with their pith and substance, and a law that is accordingly
valid (i.e.; under the pith and substance test) may incidentally affect matters which ordinarily
lie outside the power of the enacting body
12. Criminal Law and Regulatory Authority (pg. 27)
 prohibition coupled with a penalty are essential characteristics to any law which could be classified
as criminal
 as such, criminal law power will not sustain a regulatory scheme in which an administrative agency
or official exercises discretionary authority
 however, measures that would indirectly advance the legislative purpose, (such as the advertising
ban in the RJR-MacDonald v. Canada tobacco case, or the licensing and registration requirements
of the gun control legislation in Re Firearms Act (2000)) are authorized by the criminal law
power
13. Provincial Power to Enact Penal Laws (pg. 31)
 obviously, provinces need the power to use penalties for enforcement of their legislations – s. 92(15)
of the Constitution Act, 1867 allows the provincial Legislatures the power to impose punishment by
fine, penalty or imprisonment for the purpose of enforcing otherwise valid provincial laws
 provincial laws where penalties are imposed in respect of matters over which the provinces ordinarily
have legislative jurisdiction (such as property, streets, parks, business activities, or corporate
securities) have been upheld as valid
 if the provincial offence cannot be rooted in property and civil rights (or some other head of
provincial power), then the law will be invalid (Westendorp v. The Queen (1983))
 in Chatterjee v. Ontario (2009), it was held that the forfeiture measures under the Civil Remedies Act,
2001 (the stated purposes of which were to prevent persons from profiting from unlawful activity, to
return property obtained by unlawful activity to its rightful owner, and to provide funds to
compensate victims of unlawful activity) were independent of the sentencing process (unlike the
forfeiture and compensation measures in the Criminal Code which were part of the sentencing
process), and as such were within provincial competence

Margarine Reference (Reference re Validity of Section 5 (a) Dairy Industry Act), [1949] S.C.R. 1
Facts:
 the law in question prohibited the manufacture, importation, or sale of margarine
 in light of medical facts, it was conceded by the federal government that margarine was not injurious to
health, thereby, making the purpose of the law to protect the dairy industry

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Held:
 although the law fit the criminal format (prohibition coupled with penalty), the economic object of
protecting an industry from its competitors was the actual pith and substance of the law
 and that specific pith and substance (i.e.; the protection of the dairy industry) was in relation to the
property and civil rights in the province
 the prohibition on the manufacture or sale of margarine was struck down on the basis that the purpose
of the legislation was the economic one of protecting the dairy industry
 if the basis that margarine was injurious to health (as had been stated in the preamble to the
legislation when it was originally enacted) had been continued, then it would have satisfied the
requirement of a typically criminal public purpose
 however, in light of medical facts, the premise that it was injurious to health could no longer be
held up, and as such, the legislation no longer served a valid criminal law purpose

Reference re Assisted Human Reproduction Act, 2010 SCC 61


Facts:
 the Baird Commission – established to study assisted human reproduction – expressed concern about
certain practices in the field
 the federal government consulted with the provinces and independent groups and passed the Assisted
Human Reproduction Act in 2004
 the Act contained prohibitions as well as provisions designed to administer and enforce those
prohibitions
 the Attorney General of Quebec accepted that some of the provisions were valid criminal law, but
challenged the constitutionality of the remainder of the Act since they were purported to be under the
provincial power
Issues:
 the Quebec Court of Appeal held that these provisions were ultra vires the federal government as their
pith and substance was the regulation of medical practice and research in relation to assisted
reproduction
Held:
 ss. 8, 9, 12, 19, and 60 are constitutional
 ss. 40(1), (6) and (7), 41 – 43, 44(1) and (4), 45 – 53, 61, and 68 are constitutional to the extent that
they relate to constitutionally valid provisions
 ss. 10, 11, 13, 14 – 18, 40(2), (3), (3.1), (4) and (5) and 44(2), and (3) exceeded the legislative
authority of the Parliament of Canada under the Constitution Act, 1867
 while some of the Acts effects impact on provincial matters, it is neither its dominant purpose or effect to
set up a regime that regulates and promotes the benefits of artificial reproduction
 the dominant purpose and effect of the scheme is to prohibit practices that would undercut moral
values, produce public health evils, and threaten the security of donors, donees, and persons
conceived by assisted reproduction – as such, viewed as a whole, it is a valid exercise of the federal
power over criminal law

*** Wolf of the plains


by Iggulden, Conn.
(First of the best-selling conqueror series)

III. HUMAN RIGHTS AND FREEDOMS

10. LANGUAGE RIGHTS


Constitution Act, 1867, s. 133
 either English or French may be used in the debates of the Houses of Parliament of Canada and of the
Houses of the Legislature of Quebec
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 either English or French may be used in any pleadings or processes in or issuing from any Court of
Canada or any of the Courts of Quebec
 both English and French shall be used with respect to any records and journals of the Houses mentioned
as well as the Acts of the Parliament of Canada and of the Legislature of Quebec

Manitoba Act, 1870, s. 23 (quoted in Hogg, chapter 56, note 40)


 either English or French may be used in the debates of the Houses of the Legislature
 either English or French may be used in any Pleading or process in or issuing from any Court of Canada
or any of the Courts of the Province
 both English and French shall be used in the respective records and journals of the Houses mentioned as
well as the Acts of the Legislature

Constitution Act, 1982, ss. 16-23


 s. 16(1) says that English and French are the official languages of Canada and have equal rights and
privileges to their use in all institutions of the Parliament and government of Canada
 s. 17(1) allows everyone the right to use English or French in any debates or proceedings of Parliament
 s. 18(1) states that the statutes, records and journals of Parliament shall be printed in both languages
and that both versions are equally authoritative
 s. 19(1) calls for either English or French to be used in any pleading or process issuing from any court
established by Parliament
 s. 20(1) gives any member of the public the right to communicate with any central office of an institution
of the Parliament or government of Canada in English or French
 s. 23(1) says that citizens of Canada whose first language (of English or French) learned and still
understood is of the minority population of the province in which they reside, have the right to have their
children receive primary and secondary school instruction in that language in that province
 or citizens who have received their primary school instruction in Canada in the language (of English
or French) and reside in a province where that language is of the minority population, have the right
to have their children receive primary and secondary school instruction in that language in that
province

Hogg. Chapter 56. “Languages”


1. Language in Canada (pg. 2)
 English speakers constitute a majority in the country as a whole; French speakers constitute a
majority in the province of Quebec
 English and French, as the languages of the European founders, have been given special
constitutional recognition
 this leaves open questions about the rights of the aboriginal peoples who were here long before
the European “founders”
 as well as for the immigrant groups that have arrived since confederation and have continued to
use their language of origin

2. Distribution of Powers Over Language (pg. 2)


 language is not one of the classes of subjects (or heads of legislative power) that the Constitution Act,
1867 distributes to the two levels of government
 however, language could still be held to be a ‘matter’ coming within one of the classes of subjects
that are enumerated therein
 the most likely head could be “property and civil rights in the province” (as per s. 92(13))
 or, if it is held to be outside of any of the enumerated classes of subjects, then it could come
under the peace, order, and good government power under s. 91 (opening words) – meaning
that the federal Parliament would have the legislative power
 it is clear from the decided cases that there is no single plenary power to enact laws in relation to
language
 instead, the power is divided between the two levels of government by reference to criteria other
than the impact of the law upon language – i.e.; as a law in relation to the institutions or
activities that the law covers
 e.g.; in Jones v. A.G. of New Brunswick (1974), the Official Languages Act under which English
and French are the official languages of Canada, and wherein provisions recognizing both

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languages in federal courts were was upheld under s. 91(27) of the Constitution Act, 1867
(federal power over criminal procedure)
 in the same case, the court upheld a section of the New Brunswick Official Languages Act
providing for the use of both languages in the courts of New Brunswick under s. 92(14)
of the Constitution Act, 1867 (provincial power over the administration of justice in the
province)
 in Devine v. Quebec (1988), it was held that for constitutional purposes, language is ancillary
to the purpose for which it is used
 division of legislative power over language, by denying to either level of government full power
over language, constitutes an indirect protection of minority language rights
3. Language of Constitution (pg. 5)
 the Constitution Act, 1867, like all other constitutional instruments emanating from the UK before
1982, was enacted in English only
 the French version is unofficial (it is found in the Appendix to the Revised Statutes of Canada)
 although a French text has been drafted and tabled in parliament, it has never been
introduced into the amendment process; as such, so long as the French version remains
unofficial, any discrepancies would have to be resolved by taking recourse to the English
version as it is the only authoritative one
 the Canada Act, 1982, and the Constitution Act, 1982 were enacted by the UK Parliament in both
languages
 s. 57 of the Constitution Act, 1982 provides that both versions are equally authoritative
 s. 133 of the Constitution Act, 1867 required that federal statutes be enacted in both languages
 courts have held that both the English and the French versions are equally authoritative
 in the case where one language version is ambiguous and the other is clear, then the ambiguity is
resolved by reference to the clear version
 generally, that meaning should be selected that is compatible with both versions, however it
should be reasonable in the context of the statute
 if one language version gives better effect to the purpose of the statute, then it should be selected,
even if a narrower meaning would be common to both versions
4. Language of Statutes (pg. 7)
(a) Constitutional Requirements (pg. 7)
 the only explicit guarantee of language rights in the Constitution Act, 1867 is s. 133
 s. 133 applies only the legislative bodies and courts of the federal government and of Quebec
 it permits either language to be used in debates in the Houses of the federal Parliament
and the Quebec Legislature
 it requires both languages to be used in the records and journals of those Houses
 it requires the statutes of those Houses to be printed and published in both languages
 the Charter of Rights includes a variety of language provisions in ss. 16 to 23
(b) Quebec’s Charter of the French Language (pg. 8)
 s. 133’s requirement that statutes be printed and published in both languages should be
interpreted as a requirement of enactment in both languages, thereby making both versions
official and equally authoritative
 therefore, statutes that were enacted in accordance with Quebec’s Charter of the French
Language in 1977 (whereby bills were to be drafted and enacted in French only, and that
French version was to be official, albeit an unofficial English translation was to be printed
and published) were in violation of s. 133 (A.G. Quebec v. Blaikie (1979))
(c) Manitoba’s Official Language Act (pg. 9)
 s. 23 of the Manitoba Act, 1870 provides for the use of English and French in the Legislature and
courts of Manitoba
 it is similar to s. 133 of the Constitution Act, 1867
 s. 23 was brought about to guarantee the rights of the French speaking minority in Manitoba
 the Official Language Act was enacted in 1890, pretty much repealing s. 23 of the Manitoba Act;
it was quasi-successfully challenged several times
 however, in A.G. Manitoba v. Forest (1979), the court held that s. 23 of the Manitoba Act
could not be amended by the unilateral action of the Manitoba Legislature, thereby making
Manitoba’s Official Language Act unconstitutional
 in Re Manitoba Language Rights (1985), the SCC confirmed that the failure to comply with s.
23 resulted in the invalidity of the statutes in question – but since many statutes had been
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enacted in English only from 1890, in order to save the province from a vacuum of law due to
the above finding, the Court declared that the province’s statutes were to have temporary
force and effect for the period necessary for their translation, re-enactment, printing and
publication
 all future laws had to comply with s. 23’s requirement of bilingual enactment (they could
not benefit from the period of temporary validity)
 simultaneity in the use of both English and French is required throughout the process of enacting
bills into law – therefore, any two-step process (by way of which a bill would be enacted in
English and then later prepared in French) is unconstitutional
 and where, in the case of conflict, the English enactment prevails over the French, is invalid
because s. 23 requires that both language versions be equally authoritative
(d) Incorporation by Reference (pg. 12)
 if a statute makes reference to another document so as to incorporate/adopt it as part of the
statute in question, then if the statute in question is constitutionally required it be in both
languages, then that requirement applies to the incorporated document as well
 where a statute refers to another document that is not essential to the operation of the statute
(i.e.; so that it is not an integral part of the statute, and thus not truly incorporated into the
statute in question), then the constitutional language requirement does not necessarily apply
(e) Delegated Legislation (pg. 13)
 s. 133’s requirement that Acts be printed and published in both languages applies to delegated
legislation as well as to statutes (A.G. Quebec v. Blaikie (1979))
 however, only regulations made by the government are subject thereto (A.G. Quebec v. Blaikie
(1981))
 this means not only the Lieutenant Governor, the Executive Council and Ministers, but also
the regulations made by officials or bodies outside the government that are subject to the
approval of the government
 regulations that are neither made by the government, nor subject to the government’s
approval are not subject to s. 133
5. Language of Courts (pg. 16)
(a) Constitutional Requirements (pg. 16)
 s. 133 of the Constitution Act, 1867 requires that either French or English may be used in any
pleading or process in or issuing from any court of Canada or from any of the courts of Quebec
 s. 23 of the Manitoba Act, 1870 imposes a similar requirement on the courts of Manitoba
 s. 19(2) of the Charter of Rights imposes a similar requirement on the courts of New Brunswick
 the courts of the other provinces are under no similar constitutional obligation
(b) Definition of Courts (pg. 16)
 in A.G. Quebec v. Blaikie (1979) it was held that courts include courts with federally appointed
judges, inferior courts with provincially appointed judges, administrative tribunals established by
statute that exercise adjudicative functions
(c) Language of Process (pg. 17)
 s. 133 states that either of the two languages may be used in any process issuing from any court
of Canada or of Quebec, thereby allowing the issuing court the choice of either of the two
languages
 the court process, therefore, need not be bilingual
 nor is it to be governed by the wishes of the recipient of the process
(d) Language of Proceedings (pg. 18)
 in Societe des Acadiens v. Association of Parents (1986), the court held that s. 19(2) of the
Charter of Rights did not confer on a litigant the right to be heard by a judge who understood the
language of the litigant’s choice
 the litigant had the constitutional right to use either language, but that neither s. 19(2) nor
s. 133 conferred any guarantee that the litigant would be heard or understood in that
language of his choice. Later cases emphatically rejected above ruling by Beetz J. that
language rights must receive a more restrictive interpretation that other constitutional
rights. Solski . Que [2005]… “language rights must be interpreted in a broad and purposive
manner”.
(e) Right to Interpreter (pg. 19)
 s. 14 of the Charter of Rights confers upon a party or witness the right to an interpreter

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 there is also a common law right to an interpreter whereby anyone who cannot speak or
understand the language of the proceedings where that person’s rights may be affected,
needs to be provided interpretation99
 there is also a statutory right to an interpreter whereby an accused person in a criminal trial,
because he is required to be present in court during the whole of his trial as per the Criminal
Code, and he cannot be said to be present if he cannot understand what is going on 99. (*99 refers
to footnote # in Hogg book)
6. Language of Government (pg. 21)
(a) Section 16 of the Charter (pg. 21)
 s. 133 and s. 23 say nothing about government services
 s. 16 of the Charter makes English and French the official languages of Canada and new
Brunswick with equality of status and equal rights and privileges as to their use in all institutions
of the Parliament and government of Canada (s. 16(1)) and in all institutions of the legislature
and government of New Brunswick (s. 16(2))
 s. 16 is probably not addressed to communication between government and public
 instead, it confers on public servants in these institutions the right to use either language as
the language of work
 s. 16(3) provides that nothing in the charter limits the authority of parliament or a legislature to
advance the equality of status or use of English or French
 in other words, the constitutional language rights are a minimum, not a maximum
 i.e. they can be complemented by federal and/or provincial legislation
(b) Section 20 of the Charter (pg. 23)
 s. 20 of the Charter of Rights imposes an obligation on government to provide bilingual services
to the public
 this section isn’t just about accommodating the minority language speakers; services of equal
quality in both official languages must be provided
7. Language of Commerce (pg. 24.1)
 none of the language rights in the Constitution of Canada protects the use of the English or French
language in commercial or private settings
8. Language Education (pg. 25)
(a) Section 93 of the Constitution Act, 1867 (pg. 25)
 s. 93 confers upon the provincial legislature the power to make laws in relation to education – as
such, the provincial Legislatures have the power to prescribe the language of instruction in the
schools
 however, it prohibits the Legislatures from prejudicially affecting rights or privileges with
respect to denominational (or separate) schools existing by law at the time of confederation
 as such, if, therefore, a particular language of instruction was a right or privilege of a
denominational school in a particular province at the time of confederation, then the
province would be disallowed from compelling that denominational school to instruct in a
different language
(b) Mackell case (pg. 26)
 generally, the question of whether language rights are guaranteed to the denominational schools
of a particular province will depend on the analysis of the legal position of that school in the
province at the time of confederation
 in Ontario, the determination was made in Ottawa Roman Catholic separate School Trustees v.
Mackel (1916) – the case also has implications in other provinces
 the privy council held that the province had the power to require that English be the
language of instruction in the (what were to that point) French-speaking Roman Catholic
separate schools in the province
 because the law governing the separate schools in Ontario at the time of confederation did
not confer upon the separate schools the legal right to use French as the language of
instruction, it followed that no such right was thusly preserved by s. 93
 had the law at confederation conferred any such rights, then s. 93 would have preserved
(and entrenched) it
(c) Section 23 of the Charter (pg. 27)
 minority language educational rights have been provided for in s. 23 of the Charter

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 s. 23 confers upon citizens of Canada, who are members of the English speaking minority in
Quebec, or the French speaking minority in the other provinces, the right to have their children
receive primary and secondary school instruction in that minority language in that province
 this right applies to both denominational as well as non-denominational schools
 parents possessing this right have to fit into one of three categories as established by s. 23
 the mother tongue of the parent (s. 23(1)(a))
 the language of primary school instruction in Canada of the parent (s. 23(1)(b))
 the language of instruction in Canada of one child of the parent (s. 23(2))
(d) Mother Tongue of Parents (pg. 28)
 the first category of parent entitled to minority language educational rights is defined by the
mother tongue of the parent
 under s. 23(1)(a), citizens whose first language learned and still understood is that of the
English or French minority population of the province in which they reside
 however, although it is drafted to apply to the English-speakers in Quebec, s. 23 does not apply in
Quebec until the legislative assembly or government of Quebec decides to adopt it
 as such, English speaking parents in Quebec have no right to send their children to English
speaking schools unless they fit into the second or third category under s. 23
(e) Language of Instruction of Parent in Canada (pg. 29)
 the second category of parent entitled to minority language educational rights is defined by the
language of primary school instruction in Canada of the parent
 s. 23(1)(b) applies to citizens who have received their primary school instruction in Canada in
the minority language of the province in which they now reside
 citizens of Canada who move from one province to another retain the right to have their
children educated in the same language as that in which they were educated anywhere in
Canada
(f) Language of Instruction of Child in Canada (pg. 30)
 the third category of parent entitled to minority language educational rights is defined by the
language of instruction in Canada of one child in the family
 citizens who have a child who has received primary or secondary school instruction in English or
French in Canada have the right to have all their children receive their schooling in the same
language under s. 23(2)
(g) Where Numbers Warrant (pg. 31)
 the rights described above (i.e.; s. 23(1)(a), s. 23(1)(b), and s. 23(2)) are not absolute
 s. 23(3)(a) says that the right to instruction is limited to wherever in the province the number of
children of citizens who have such a right is sufficient to warrant the provisions to them out of
public funds for minority language instruction
 under s. 23(3)(b), the right includes, where the number of those children so warrants, the right
to have them receive that instruction in minority language educational facilities provided out of
public funds
(h) Denominational Schools (pg. 34)
 pg. 34
(i) Supervision of Remedial Orders (pg. 34)
 pg. 34

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11. ABORIGINAL AND TREATY RIGHTS


Constitution Act, 1867, s. 91(24)
 s. 91(24) gives the Parliament power to make laws in relation to Indians, and Lands reserved for the
Indians

Constitution Act, 1982, s. 25, s. 35


 s. 25 says that the guarantee in this charter of certain rights and freedoms shall not be construed so as to
abrogate or derogate from any aboriginal treaty or other rights or freedoms that pertain to the
aboriginal peoples of Canada
 s. 35(1) states that the existing aboriginal and treaty rights of the aboriginal peoples of Canada are
hereby recognized and affirmed

Hogg. Chapter 28. “Aboriginal Peoples”


1. Federal Legislative Power (pg. 2)
(a) Section 91(24) (pg. 2)
 s. 91(24) gives the parliament power over Indians, and lands reserved for the Indians
 the main reason for this section was to protect the aboriginals from local settlers whose interests
lay in the lack of restrictions on the expansion of their settlement
 the federal government, being the more distant level of government, would be more likely to be
removed from the interests of the local settlers, and as such, to generally protect the Indians’
interests better
 the federal government would also be able to maintain a more uniform national policy
 the power over Indians may be exercised in respect of Indians (and only Indians), whether or not
they reside on or have connection with the lands reserved for Indians
 the power over lands reserved for Indians may be exercised in respect of Indians and non-Indians
so long as the law is related to lands reserved for Indians
(b) Indians (pg. 3)
 in Canada, the word Indian has been used to mean the aboriginal peoples who had been living
there long before European contact
 the definition for the sake of the federal Indian Act traces Indian status from particular bands
whose charter members were normally determined at the time of the establishment of reserve or
the making of a treaty
 the status then devolves from these charter members to their descendants
 persons within the statutory definition of the Indian Act are known as status Indians, and they
alone enjoy the right to live on Indian reserves and various other Indian Act privileges
 status Indians are “Indians” within the meaning of s. 91(24) of the Constitution Act, 1867;
however, many persons of Indian blood/culture who are outside the statutory definition (i.e.; non-
status Indians), although “Indians” within the meaning of s. 91(24) are not governed by the
Indian Act
 e.g.; Métis people (the result of intermarriage between French Canadians and Indian women),
Inuit or Eskimo people, and other non-status Indians are not governed by the Indian Act
 the federal Parliament may legislate for Indians on matters that, otherwise, fall outside its
legislative competence, and on which it could not otherwise (i.e.; for non-Indians) legislate
 if parliament could make laws for Indians which it could for non-Indians, then s. 91(24) would
be redundant and unnecessary
 therefore, courts would uphold laws which could be rationally related to intelligible Indian
policies, even if the laws would normally be outside federal competence
(c) Lands Reserved for the Indians (pg. 5)
 lands reserved for Indians in s. 91(24) includes the lands set aside as Indian reserves before and
after confederation, as well as the huge area of land recognized by the Royal Proclamation of
1763 as reserved for Indians (i.e.; all land that was in the possession of the Indians and had not
been ceded to the Crown), and all lands held pursuant to aboriginal title (Delgamuukw v. British
Columbia (1997))
 as such, only the federal Parliament has the power to extinguish aboriginal title
(d) Canadian Bill of Rights (pg. 7)
 the Canadian Bill of Rights applies to federal laws and guarantees equality before the law, and
specifically forbids discrimination by reason of race under s. 1(b)
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 nonetheless, special laws for Indians and Indian reserves employ a racial classification
(e) Charter of Rights (pg. 8)
 s. 15 of the Charter of Rights contains an equality guarantee
 as such, the Indian Act, like any other statute, is vulnerable to attack if it offends s. 15 for any
reason other than its use of the Indian classification
(f) Treaties (pg. 9)
 so far as treaties with other countries are concerned, the general rule is that they have no effect
on the internal law of Canada unless they are implemented by legislation
 s. 35 of the Constitution Act, 1982 gives constitutional protection to rights created by treaties
entered into with Indian tribes/bands and operates as a limitation on the powers of the federal
Parliament as well as the provincial Legislature
2. Provincial Legislative Power (pg. 10)
(a) Application of Provincial Taxes (pg. 10)
 the general rule is that provincial laws apply to Indians and lands reserved for Indians so long as
the law is in relation to a matter coming within a provincial head of power
 therefore, they have to pay provincial taxes, obey provincial traffic laws, health and safety
requirements, social and economic regulations, and the myriad of other provincial laws
which apply to them in common with other similarly-situated residents of the province
 there are five exceptions to the general rule that provincial laws apply to Indians and lands
reserved for Indians:
 singling out
 Indianness
 paramountcy
 natural resources agreements
 s. 35
(b) First Exception: Singling Out (pg. 11)
 a provincial law that singles out Indians or Indian reserves would be classified as a law in
relation to Indians or Indian reserves, and as such, would be invalid
(c) Second Exception: Indianness (pg. 11)
 a provincial law that affects an integral part of primary federal jurisdiction over Indians and
lands reserved for Indians will be inapplicable to Indians and lands reserved for Indians even
though the law is one of general application and is otherwise within provincial competence
 i.e.; laws that would impair the status or capacity of Indians or that affect Indianness
 as such, provincial laws cannot affect aboriginal rights or treaty rights or Indian status
 provincial laws using the definition of the Indian Act to prescribe their scope do not impair the
status or capacity of non-status Indians, do not impair any aboriginal or treaty right, and so do
not affect Indianness
 provinces cannot legislate to extinguish or alter aboriginal rights and cannot confer on an
administrative tribunal the power to extinguish or alter aboriginal rights, however they can
empower administrative tribunals to perform adjudicative roles so long as there is no
unconstitutional effect on Indianness (Paul v. British Columbia (2003))
 provincial laws that do affect Indianness cannot apply to Indians of their own force, however
some such laws could become applicable to Indians through s. 88 of the Indian Act, which
incorporates by reference provincial laws of general application
(d) Third Exception: Paramountcy (pg. 14)
 a provincial law that is inconsistent with a provision of the Indian Act (or any other federal law)
is rendered inoperative by the doctrine of federal paramountcy
(e) Fourth Exception: Natural Resources Agreements (pg. 15)
 the right of Indians to take game and fish for food cannot be deprived by provincial laws
(f) Fifth Exception: Section 35 (pg. 15)
 aboriginal and treaty rights have, since 1982, been protected by s. 35 of the Constitution Act,
1982 which gives constitutional status to aboriginal and treaty rights
 s. 35 applies to federal laws as well as provincial laws
 s. 88 of the Indian Act expressly provided that provincial laws of general application must yield
to the terms of any treaty
3. Section 88 of the Indian Act (pg. 15)
(a) Text of s. 88 (pg. 15)

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 s. 88 makes clear that provincial laws of general application apply to Indians as well
 the section makes no reference to lands reserved for Indians, and as such, it extends not only to
Indians not on a reserve, but to Indians on a reserve as well
(b) Laws of General Application (pg. 16)
 laws that single out Indians for special treatment are not covered under s. 88’s provisions that
provincial laws of general application apply to Indians as well
 similarly, s. 88 does not make provincial laws affecting Indianness applicable to Indians
 those provincial laws that can be applied to Indians without touching heir Indianness, like traffic
legislation, apply to Indians of their own force
 s. 88 is not needed to make those laws applicable to Indians, and so s. 88 should be
interpreted as not extending to those laws
 provincial laws affecting Indianness, which do not apply to Indians of their own force, are made
applicable by s. 88
 provincial laws of general applications, therefore, can infringe on aboriginal rights
 however, s. 88 doesn’t go so far as to enable provincial laws of general application to
extinguish aboriginal rights
(c) Paramountcy Exception (pg. 17)
 any conflict between federal statutes and provincial laws of general application has to be
resolved in favour of the federal statute
 by the closing words of s. 88, a provincial law of general application which makes provisions for
any matter for which provisions are made by/under the Indian Act must yield to the provision of
the Indian Act
(d) Treaty Exception (pg. 18)
 s. 88, by its opening words, is subject to the terms of any treaty
 as such, any conflict between a treaty made with Indians and a provincial law of general
application has to be resolved in favour of the treaty provision
 therefore, provincial laws cannot impair Indian treaty rights
 as such, s. 88 shields Indian treaties from all provincial laws
4. Natural Resources Agreements (pg. 19)
 provincial competence to make laws applicable to Indians is further limited by the Natural Resources
Agreements that were entered into between Canada and the three prairie provinces, and which were
given constitutional status by an amendment to the Constitution Act in 1930
 as such, in Alberta, Saskatchewan, and Manitoba, the Indians are guaranteed the right to take game
and fish for food at all seasons of the year – provincial laws to the contrary are inapplicable to the
Indians
5. Aboriginal Rights (pg. 20)
(a) Recognition of Aboriginal Rights (pg. 20)
 s. 35 of the Constitution Act, 1982 gives constitutional protection to the existing aboriginal and
treaty rights of the aboriginal peoples of Canada
 aboriginal title has been described as a legal right derived from the Indians’ historic occupation
and possession of their tribal lands
 R v. Sparrow (1990), expanding on Guerin v. The Queen (1984), found that in all dealings with
aboriginal peoples (including legislation since the enactment of s. 35), the government has the
responsibility to act in a fiduciary capacity
(b) Definition of Aboriginal Rights (pg. 22)
 aboriginal rights are rights held by aboriginal peoples, not by virtue of Crown grant, legislation
or treaty, but by reason of the fact that aboriginal peoples were once independent, self-governing
entities in possession of most of the lands now making up Canada
 when the Europeans arrived in North America, aboriginal peoples were already here, and had
been for centuries – this fact distinguishes aboriginal peoples from all other minority groups in
Canada
 this is why aboriginal rights have special legal and constitutional status
 in R. v. Van der Peet, the court found that the legal test to be used to identify an existing
aboriginal right within the meaning of s. 35 of the Constitution Act, 1982 is that 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

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 in order to be integral, the practice must be of central significance to the aboriginal society, it
must be a defining characteristic of that society, being one of the things that makes the
culture of the society distinctive
 the practice must have developed before contact (i.e.; before the arrival of the Europeans
in North America) – although not necessarily in that same stagnant form, in that it could
have evolved over the years as a result of contact (because otherwise, it would limit the
practice to be frozen in its pre-contact form (R. v. Sappier (2006)) – but it has to be able
to trace its origins back to the pre-contact period
 practices that developed solely as a response to European influences do not qualify
(c) Aboriginal Self-Government (pg. 25)
 aboriginal people were living in self-governing communities before the arrival of the Europeans
 according to R. v. Pamajewon (1996), the aboriginal right to self-government extends only to
those activities that were an integral part of the aboriginal society before contact
 as per Delgamuukw v. British Columbia (1997), with regards to aboriginal title as it has
relevance to self-government rights:
 because land held under aboriginal title is held communally and aboriginal title encompasses
the right to choose what uses the land can be put, there is a necessary role for aboriginal laws
and customs as to how the land is to be shared by the members of the community, how it is to
be managed, and how it is to be developed
 since decisions with respect to aboriginal lands must be made communally, there must be some
internal structure for communal decision making, and as such, there is a need for the right of
aboriginal self-government
(d) Aboriginal Title (pg. 28)
 aboriginal title is the right to the exclusive occupation of land, which permits the aboriginal
owners to use the land for a variety of purposes (e.g.; to hunt, fish, and harvest on their land)
 that is not to say that rights to such activities may not also exist on land to which the
aboriginal people do not have title
 they do have to show, however, that the practice (in that location) had arisen before
contact and was integral to their distinctive culture
 aboriginal title has its source in the occupation of land by aboriginal people before the Crown
assumed sovereignty over the land and not from a Crown grant
 aboriginal title is proved, not by showing a chain of title, but by showing that an aboriginal
people occupied the land prior to sovereignty (not prior to contact)
 if present occupation is relied upon, then it is necessary to show a continuity between present and
pre-sovereignty occupation (albeit that continuity may have been disrupted for a period, but so
long as there was a substantial maintenance of the continuity/connection)
 in R. v. Van der Peet (1996), the court said that proof of pre-sovereignty occupation does not have
to adhere to the strict rules of evidence as aboriginal societies did not keep written records and
their accounts of the past would typically be contained in oral histories
 as such, although oral histories would violate the hearsay rule, in the case of aboriginal
societies, the rules of evidence have to be adapted
 there are five important differences between aboriginal title and non-aboriginal title:
 the first relates to the source of aboriginal title which derives from pre-sovereignty
occupation rather than a post sovereignty grant from the crown
 the second relates to the range of uses to which an aboriginal title land may be put:
aboriginal title confers the right to exclusive use and occupation of the land which are not
limited to those that have been traditionally carried on or were an integral part of the
distinctive culture
 however, the range is limited so that the uses must not be irreconcilable with the nature
of the attachment to the land which forms the basis of that particular aboriginal group’s
aboriginal title
 the third is that aboriginal title is inalienable, except to the crown (meaning that the crown
has to act as an intermediary between the aboriginal owners and third parties)
 in order to pass title to a third party, the aboriginal owners must first surrender the land
to the crown, and the crown then comes under a fiduciary duty to deal with the land in
accordance with the best interests of the surrendering aboriginal peoples

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 the fourth is that aboriginal title can only be held communally and not by individual
aboriginal persons; it is a collective right to land held by all members of that aboriginal
nation (R. v. Van der Peet (1996))
 the fifth is that aboriginal title is constitutionally protected
 before 1982, aboriginal title could be extinguished by federal legislation (though not
provincial because provincial extinguishment would conflict with the federal power over
Indians and lands reserved for the Indians in s. 91(24)), but only if the legislation
showed a clear and plain intention to extinguish that aboriginal title
 as of 1982, s. 35 of the Constitution Act, 1982, confers constitutional protection on any
aboriginal title that was existing (unextinguished) in 1982
 however, the constitutional protection isn’t absolute
(e) Extinguishment of Aboriginal Rights (pg. 33)
 aboriginal rights (including aboriginal title) can be extinguished by:
 surrender
 surrender must be voluntary, and must be to the crown
 surrenders have occurred in treaties between an aboriginal nation and the crown
whereby the treaty confers treaty rights on the aboriginal people in substitution for the
surrender aboriginal rights
 constitutional amendment
 in the past, constitutional amendments affecting aboriginal or treaty rights have been
enacted without the consent of the affected aboriginal people; now, however, it would be
a breach of the crown’s fiduciary duty to proceed without the active participation of the
affected aboriginal people
 in 1982, the power to extinguish by legislation was removed by s. 35 of the Constitution Act,
1982
 extinguishment will not be inferred from unclear language; only clear and plain intention to
extinguish is accepted by the courts as having that effect (R. v. Sparrow (1990))
6. Treaty Rights (pg. 34)
(a) Introduction (pg. 34)
 before 1982, Indian treaty rights were explicitly protected from derogation by provincial law by
s. 88 of the Indian Act (but not federal law)
 since 1982, they have been protected by s. 35 of the Constitution Act, 1982 from derogation by
either federal or provincial law
(b) History (pg. 34)
 during the early stages of French and English settlement, treaties of peace and friendship were
entered into with the Indian nations – conferring hunting and fishing rights in return for peace,
and typically did not involve the cession by the Indians of their lands
 modern treaties reserve large areas of land to the aboriginal signatories as well as considerable
sums of money in return for the surrender of aboriginal rights over non-settlement land
 as well, there are specific provisions made for the development, planning, management,
harvesting, forestry and mining of the land that assures a continuing role of the aboriginal
people in the management of the resources of the region covered by the agreement and not
just their own settlement land
(c) Definition of Treaty (pg. 35)
 Indian treaties are not treaties at international law and are not subject to the rules thereof; nor
are they contracts or subject to the rules of contract law
 through R. v. Sioui (1990) and Simon v. The Queen (1985), Indian treaties are an agreement
between the crown and an aboriginal nation whereby:
 parties: the parties can only be the crown and an aboriginal nation
 agency: the signatories to the treaty must have the authority to bind the said parties
 intention to create legal relations: the parties must intend to do create legally binding
obligations
 consideration: the agreement must be a bargain
 formality: there must be a certain measure of solemnity to the treaty

(d) Interpretation of Treaty Rights (pg. 37)


 treaties and statutes relating to Indians should be liberally construed and doubtful expressions
resolved in favour of the Indians
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 one reason for this is the unequal bargaining power of the crown and the aboriginal people
(e) Extinguishment of Treaty Rights (pg. 40)
 treaty rights may be extinguished by:
 voluntary surrender to the crown
 constitutional amendment
 treaty right being extinguished by federal (but not provincial) legislation ended with the
enactment of s. 35 of the Constitution Act, 1982
 extinguishment can only be established if there is a clear and plain intention to extinguish
7. The Need for Constitutional Protection (pg. 41)
 aboriginal and treaty rights suffered from serious infirmities:
 the uncertainty as to the precise legal status of the rights
 the doctrine of parliamentary sovereignty meant that aboriginal rights were vulnerable to
change or abolition by the action of the competent legislative body
 the liberal idea of equality created a political climate unsympathetic to the recognition of special
rights peculiar to a group define by race, suggesting that special status might actually be
unconstitutional
 aboriginal treaty rights could be modified or extinguished by constitutional amendment
 the constitution act, 1982 has taken steps to eliminate these four infirmities
 three provisions reinforce s. 91(24) in their recognition of special status for aboriginal people:
 s. 35 of the Constitution Act, 1982 gives constitutional recognition, though without defining,
aboriginal and treaty rights and protects them from legislative attack
 s. 25 of the constitution Act, 1982 provides that the Charter of Rights is not to be construed
as derogating from aboriginal, treaty, or other rights or freedoms that pertain to the
aboriginal peoples of Canada
 s. 35.1 declares that constitutional amendments to the native rights provisions of the
Constitution Acts 1867 and 1982 that directly apply to aboriginal peoples will not be made
without prior constitutional conference involving participation by representatives of the
aboriginal peoples to be affected
8. Section 35 (pg. 42)
(a) Text of s. 35 (pg. 42)
 pg. 42
(b) Outside the Charter of Rights (pg. 42)
 s. 35 of the Constitution Act, 1982 is actually outside the Charter of Rights (which occupies s. 1 to
34 thereof)
 as such, s. 35 is not qualified by s. 1, and thusly not subject to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic society
 s. 35 is also not subject to legislative override under s. 33 of the Charter
 nor are the rights effective only against governmental action as stipulated by s. 32
 on the other hand, the rights are not enforceable under s. 24 which permits enforcement only
of Charter rights
(c) “Aboriginal Peoples of Canada” (pg. 43)
 the rights in s. 35 are possessed by the aboriginal peoples of Canada which is defined in s. 35(2)
as including the Indian, Inuit and Métis peoples of Canada
 it is obvious that the phrase includes not only status Indians, but also non-status Indians, as
well as the Inuit (or Eskimo) and Métis peoples
 the phrase “aboriginal peoples of Canada’ is also used in ss. 25, 37, and 37.1
(d) “Aboriginal and Treaty Rights” (pg. 44)
 the rights referred to in s. 35 are aboriginal and treaty rights
(e) “Existing” (pg. 44)
 s. 35 protects existing aboriginal and treaty rights (making reference to April 17, 1982, which is
when the Constitution Act, 1982 was proclaimed into force)
 this does not exclude rights that come into existence after 1982
 the word existing in s. 35 meant unextinguished (R. v. Sparrow (1990))
 a right that had been validly extinguished before 1982 was not protected by s. 35
 s. 35 did not retroactively annul previously extinguished rights so as to restore the same
 in R. v. Sparrow (1990), the court held that an aboriginal right, provided it had not been
extinguished before 1982 by clear and plain language, should be treated as existing in its
unregulated form
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 according to R. v. Sparrow, the effect of the word existing in s. 35 is to exclude from


constitutional protection those rights that had been validly extinguished before 1982
(f) “Recognized and Affirmed” (pg. 45)
 s. 35 provides that existing aboriginal and treaty rights are recognized and affirmed
 the phrase recognized and affirmed should be interpreted according to the principle that
treaties and statutes relating to Indians should be liberally construed and doubtful
expressions resolved in favour of the Indians (R. v. Sparrow (1990))
 s. 35 is not part of the Charter of Rights, and as such, isn’t subject to s. 1 thereof
 however, the rights protected by s. 35 aren’t absolute either as they are subject to regulation by
federal laws, provided those laws meet a standard of justification not unlike those of s. 1 (which
reads that rights are not absolute but are subject to such reasonable limits as prescribed by law
as can be demonstrably justified in a free and democratic society)
 a justified impairment would have to pursue an objective that is compelling and substantial
(g) Application to Treaty Rights (pg. 48)
 because s. 35 applies to treaty rights as well as aboriginal rights, the doctrine laid down in R. v.
Sparrow (1990) applies to treaty rights as well as aboriginal rights (R. v. Badger (1996))
 R. v. Cote (1996) repealed that the Sparrow doctrine applied to treaty as well as aboriginal
rights, meaning that treaty rights have to yield to any law that can satisfy the Sparrow
standard of justification
 R. v. Marshall (1999) affirmed the ruling that a treaty right could be regulated, provided the
Sparrow test of justification was satisfied
(h) Application to Extinguishment (pg. 50)
 before 1982, provided clear and plain words to do so were used, aboriginal and treaty rights
could be extinguished by federal legislation
 s. 35 now protects aboriginal and treaty rights from extinguishment by federal legislation
 the Sparrow justificatory test would save a federal law that purported to regulate an
aboriginal or treaty right, but not one that purported to extinguish it
 the effect of s. 35 is that aboriginal and treaty rights can only be extinguished by surrender or by
constitutional amendment
(i) Application to Provincial Law (pg. 50)
 s. 35 affords aboriginal people constitutional protection against provincial legislative power (R.
v. Sparrow (1990))
 even apart from s. 35, provincial legislative power does not extend to laws that would impair
aboriginal or treaty rights because such laws affect Indianness
 however, by virtue of s. 88 of the Indian Act, provincial laws of general application that affect
Indianness may become applicable to Indians – treaty rights, however, are expressly immune
from provincial laws that are incorporated by s. 88
 the effect of s. 35 would be to require any provincial law that is adopted by s. 88 to pass the
Sparrow test of justification before it could impair aboriginal rights
 however, such a provincial law could not extinguish aboriginal rights
(j) Duty to Consult Aboriginal People (pg. 52)
 the ability of a First Nation to negotiate a treaty will depend on persuading government that
there is credible claim to the aboriginal title
 s. 35 not only guarantees existing aboriginal and treaty rights, it also imposes on government the
duty to engage in various processes even before an aboriginal or treaty right is established
 s. 35 gives constitutional protection to a special relationship between the crown and aboriginal
peoples under which the honour of the crown must govern all dealings
 as such, while aboriginal claims are unresolved, the honour of the crown entails a duty to
consult the aboriginal people before authorizing action that could diminish the value of the
land or resources that they claim (i.e.; that are under “negotiation”)
 the duty to consult and accommodate was established in Haida Nation v. British Columbia
(2004) whereby the court found that s. 35 obliges the crown to consult with the aboriginal
peoples, and if necessary, to accommodate their concerns
 the extent of consultation and accommodation is proportionate to a preliminary
assessment of the strength of the case supporting the existence of the right or title and to
the seriousness of the potentially adverse effect upon the right or title claimed
 the duty of consultation and accommodation does not include a duty to agree with the
aboriginal people
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 meaningful consultation does not require agreement


 and accommodation requires only a reasonable balance between the aboriginal
concerns and the competing considerations
9. Section 25 (pg. 56)
 s. 25 of the Constitution Act, 1982 is part of the Charter of Rights
 it does not create any new rights, it is an interpretative provision to make clear that the Charter is
not to be construed as derogating from any aboriginal, treaty or other rights or freedoms that
pertain to the aboriginal peoples of Canada
10. Section 35.1 (pg. 57)
 s. 91(24) of the Constitution Act, 1867, and s. 25 and 35 of the Constitution Act, 1982 can be
repealed or amended by way of constitutional amendment
 the appropriate procedure being the general (seven-fifty) amending procedure of s. 38
 in fact, s. 25 and 35 have already been amended once before – however, it was done in ways that
were agreed to by representatives of the aboriginal peoples
 the aboriginal peoples are concerned that their constitutional protections are vulnerable and could
be impaired by a process in which their organizations play no formal role
 s. 35.1 was added to the Constitution Act, 1982 and declares that the federal and provincial
governments are committed to the principle that before any amendments are made to s. 91(24), or
to s. 25 or 35, a constitutional conference will have to be held including representatives of the
aboriginal peoples of Canada participating in discussions of the proposed amendments

11. Charlottetown Accord (pg. 58)


 the Charlottetown Accord of 1992 proposed a set of new constitutional provisions with regards to
aboriginal peoples
 a new s. 35.1 would recognize that the aboriginal peoples of Canada have the inherent right of self-
government within Canada
 it was defeated, however it had some lasting effects on the status of aboriginal peoples:
 by virtue of their involvement, the leaders of the four national aboriginal organizations were full
parties to the discussions that led up the accord, and the participation was not confined to the
aboriginal provisions of the Accord, but extended to all its provisions thereby treating aboriginal
organizations as if they were a third order of government (as was contemplated by the Accord)
 all first ministers and territorial leaders agreed that the aboriginal peoples have an inherent
right of self-government, thereby (despite the failure to ratify the express declaration to that
effect in the Accord) there was informal recognition that the right exists

R. v. Van der Peet, [1996], 2 S.C.R. 507 (pg. 120)


Facts:
 the defendant was convicted of selling fish that she had caught under the authority of an Indian food-fish
license that had been issued under the federal Fisheries Act and restricted the holder to fishing for food –
the sale thereof was prohibited
Issues:
 did the defendant have an aboriginal right to sell fish for money or other goods
Held:
 when the Europeans arrived in North America, aboriginal peoples were already here, and had been for
centuries – this fact distinguishes aboriginal peoples from all other minority groups in Canada
 this is why aboriginal rights have special legal and constitutional status
 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 to be integral, the practice must be of central significance to the aboriginal society, it must be a
defining characteristic of that society, being one of the things that makes the culture of the society
distinctive
 the practice must have developed before contact (i.e.; before the arrival of the Europeans in North
America) – although not necessarily in that same stagnant form, in that it could have evolved over
the years as a result of contact – but it has to be able to trace its origins back to the pre-contact
period
 practices that developed solely as a response to European influences do not qualify

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 the exchange of fish did occur in the society of the Sto:lo people before contact, but it was incidental to
the practice of fishing for food – the practice of selling fish was not an integral part of the culture
 it was only after contact that the Sto:lo people had begun fishing to supply a market created by
European demand for the fish
 as such, an aboriginal right to sell fish cannot be established

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (pg. 143)


Facts:
 in presenting their case regarding their claim to certain land in British Columbia, the aboriginal peoples
offered into evidence their oral histories
 the trial judge did not accept their evidence of oral history of attachment to the land
 the appeal was dismissed by a majority of the court of appeal
Issues:
 whether the pleadings precluded the court from entertaining claims for aboriginal title and self-
government
 what was the ability of the court to interfere with the factual findings made by the trial judge
 what is the content of aboriginal title, how is it protected by s. 35.1 and what its required for its proof
 whether the appellants made out a claim to self-government
 whether the province had the power to extinguish aboriginal rights after 1871, either under its own
jurisdiction or through the operation of s. 88 of the Indian Act
Held:
 lands reserved for Indians in s. 91(24) includes the lands set aside as Indian reserves before and after
confederation, as well as the huge area of land recognized by the Royal Proclamation of 1763 as reserved
for Indians (i.e.; all land that was in the possession of the Indians and had not been ceded to the Crown),
and all lands held pursuant to aboriginal title
 with regards to aboriginal title as it has relevance to self-government rights, because land held under
aboriginal title is held communally and aboriginal title encompasses the right to choose what uses the
land can be put, there is a necessary role for aboriginal laws and customs as to how the land is to be
shared by the members of the community, how it is to be managed, and how it is to be developed
 the crown’s fiduciary duty would normally involve a duty of consultation with aboriginal people before
decisions were taken with respect to their lands

Haida Nation v. British Columbia (Minister of Forests) [2004] 3 S.C.R. 511 (pg. 148)
Facts:
 the government of British Columbia had issues a licence to the Weyerhaeuser Company authorizing the
cutting of trees on provincial crown land in the Queen Charlotte Islands which were the traditional
homeland of the Haida people and were the subject of land claim by the Haida Nation which had been
accepted for negotiation but had not been resolved at the time of the issuance of the license to
Weyerhaeuser
Issues:
 the cutting of the trees on the claimed land would have the effect of depriving the Haida people of some of
the benefit of their land if and when their title was established
Held:
 s. 35 obliged the crown to consult with the Haida people, and if necessary, to accommodate their
concerns
 the logging contemplated by the company’s licence would have an adverse effect on the claimed right
 since the province was aware of the Haida claim it was under a duty to consult with the Haida before
issuing the licence, and not having done so, was in breach of s. 35
 therefore, the licence was invalid

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12. INTERPRETING THE CHARTER OF RIGHTS AND FREEDOMS


Hogg. Chapter 36. “Charter of Rights”
1. History of the Charter (pg. 2)
 the Canadian Bill of Rights was enacted in 1960
 it was merely a statutory instrument and did not apply to the provinces
 its application even to the federal government had been given little effect
 Pierre Trudeau, in 1981, was able to get nine of ten provinces (with Quebec dissenting) to agree to
the enactment of the Constitution Act, 1982 – of which, Part I is the Canadian Charter of Rights and
Freedoms
 whereas the Canadian Bill of Rights is merely a statute that only applies to the federal level of
government, the Charter is part of the Constitution of Canada and can only be altered by
constitutional amendment, applies to both the federal and the provincial level of government, and
expressly overrides inconsistent statutes
2. Protection of Civil Liberties (pg. 3)
 the Charter of Rights guarantees a set of civil liberties that are regarded as so important that they
should receive immunity/special protection from state action
 after the adoption of the charter, all jurisdictions (except Quebec which protested the adoption of
the Charter) engaged in a review of their statutes and enacted amendments to correct perceived
violations of the Charter rights
 if the Charter’s effect depended exclusively on the voluntary acts of government, then there would
obviously be no guarantee of compliance – as such, the Charter is enforced by sanction of nullification
administered by the courts of laws found to by a court to violate the civil liberties guaranteed by the
Charter
 the independence of the judiciary guarantees civil liberties are protected from the actions of
Parliament, Legislatures, government agencies and officials
3. Enhancement of National Unity (pg. 4)
 the Charter of Rights doesn’t confer any additional powers on the federal Parliament
 instead, it limits the powers of the federal Parliament as well as the provincial Legislatures
 it applies a set of uniform national standards for the protection of civil liberties
 the Charter’s conferral of a right to invoke national standards and a national court for the
protection of civil liberties adds a dimension of allegiance to Canada as a whole (that did not
exist before 1982), and thus the Charter, to that extent, is a unifying instrument
4. Expansion of Judicial Review (pg. 5)
(a) New Grounds of Review (pg. 5)
 the major effect of the Charter has been an expansion of judicial review
 before the adoption of the Charter in 1982, judicial review in Canada was confined to federalism
grounds
 since 1982, judicial review can also be based on Charter grounds
 judicial review under the Charter involved a higher degree of policy than any other line of
judicial work
(b) Vagueness of Concepts (pg. 6)
 while some of the Charter rights are fairly specific, most are not; they depend upon vague words
or phrases and the meaning thereof has to be determined by the courts
 in doing so, the judges will inevitably be influenced by their own biases (social, economic, and
political values)
 in the USA, the differences between the decisions of the Lochner era and the Warren
Court show that judicial activism can take any political direction depending in large
measure on the political predilections of the judges
 the Charter has ushered in a period of extraordinarily active judicial review as the SCC has
willingly embraced the new powers conferred on it by the vague language thereof
 this period of judicial activism since 1982 has been described as the Charter revolution
 nonetheless, judicial review in Canada is weaker than judicial review in the US
 judicial review based on Charter grounds rarely defeats the desired legislate objective – after a
law is struck down by the Court, the mechanisms of s. 1 and 33 typically leave room for the law
to be replaced with another version that still carries out the legislative objective
(c) Role of s. 1 (pg. 10)

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 civil liberties guaranteed by the Charter sometimes come into conflict with each other, and
frequently come into conflict with other values that are respected in Canadian society
 s. 1 of the Charter implicitly authorizes the courts to balance the guaranteed rights against
competing societal values by making it clear that a law limiting a Charter right is valid if the law
is a reasonable one that can be demonstrably justified in a free and democratic society
 initially, decisions to this effect will be made by the government that introduces a bill in
derogation of a Charter right, and by the legislative body that enacts the bill into law
 if such a law is enacted and is challenged in the courts, then the reviewing court will reach its
own determination on the question of whether s. 1 of the Charter is satisfied
 the first step is to determine whether the challenged law derogates from a Charter right
 if it does not, then the review comes to an end and the law is upheld
 the second step, if it does derogate from a Charter right, is to determine whether the law is
justified under s. 1 as a reasonable limited prescribed by law that can be demonstrably
justified in a free and democratic society
 the reviewing court must decide whether the law should be upheld despite the fact that it
limits the Charter right
 in making such judgments, courts revive little guidance from the vague references in s. 1 to
reasonable limits and demonstrable justification
(d) Role of s. 33 (pg. 11)
 in the US, decisions of the supreme court can only be overcome by difficult and time consuming
process of constitutional amendment
 in Canada, s. 33 of the Charter allows for an override power that enables the Parliament or
Legislature to enact a law that will override the guarantees in s. 2 (expression), 7 to 14 (legal
rights), and 15 (equality) of the Charter – the override power does not extend to s. 3 to 5
(democratic rights), 6 (mobility), 16 to 23 (language rights) or 28 (sexual equality)
 all that is necessary is the express declaration that the law is to operate notwithstanding the
relevant provision of the Charter
 once such a declaration has been enacted, the law that it protects will not be touched by the
overridden provision of the Charter
 any judicial decision invalidating laws that are found to be contrary to the provisions that can be
overridden by the re-enactment of the invalid statute coupled with a declaration of the override
 the override power of s. 33 means that most decisions striking down statutes on Charter
grounds can be reversed by the competent legislative body
5. Dialogue with Legislative Branch (pg. 12)
(a) The Idea of Dialogue (pg. 12)
 the override power of s. 33 means that most decisions striking down statutes on Charter grounds
can be reversed by the competent legislative body
 s. 1, although less obvious, has the same effect
 when a law is struck down on Charter grounds, it has failed the requirements of justification
as per s. 1
 however, a different law that still pursues the same objective (but does so through less drastic
encroachment on the Charter rights) would be a reasonable limit that can be demonstrably
justified in a free and democratic society
 decisions of the Court usually leave room for a legislative response – which they usually get
 so, if the democratic will is there, the legislative objective can usually be accomplished –
however, this is usually done with some new safeguards to protect the individual rights that
were being challenged to begin with
 accordingly, the court’s charter decisions, then, can be said to start a dialogue with the legislative
branch as to how to best reconcile individualistic values of the Charter with the accomplishment
of social and economic policies for the benefit of the community as a whole
(b) Second Look Cases (pg. 13)
 the idea of dialogue indicates that when Parliament (or Legislature) has revised and re-enacted a
law that the courts have found unconstitutional, the court is likely to uphold the second attempt
 this is because the new law was only enacted because of the court’s earlier decision and after
taking into account the court’s reasons in the earlier decision
 the second statute would have been drafted with close attention to the reasons given by
the court in the earlier case for holding that the requirements of s. 1 justification were
not satisfied
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 suggestions made by the court in the earlier case as to how the constitutional infirmities
could have been corrected will also have been noted by the drafters of the second statute
 as such, the second statute is likely to be upheld – indeed, in most cases, the validity of the second
statute is generally so clear that it is never even challenged
(c) Remedial Discretion (pg. 18)
 a court’s declaration of invalidity temporarily leaves in force a law that is unconstitutional
 in Schachter v. Canada (1992), the court said it would only grant a temporary period of validity
to an unconstitutional law if, where the immediate striking down of the law would:
 (danger) pose a danger to the public
 (disorder) threaten the rule of law
 (deprivation) result in the deprivation of benefits from deserving persons
 after Schachter, the court has frequently ordered the suspension of declaration of invalidity
because a dialogue rational has supplanted the emergency rational and the court would prefer
the legislature to design the appropriate remedy in many cases where the court has found a law
to be unconstitutional
 judicial respect for the authority of the other branches of government also argues for
restraints in crafting orders to compel the executive branch to rectify Charter breaches
 obviously, however, when governments refuse to obey the constitution, there comes a point when
dialogue must be replaced with coercion
(d) Dialogue Within Government (pg, 19)
 the process of legislative reaction to SCC decisions is described as dialogue, however, the Court
and the legislative bodies never actually talk to each other, the Court simply issues its judgments
and governments take whatever action they believe to be possible and appropriate in order to
salvage their policies without infringing the Charter
 most laws have at least some impact on Charter rights –yet, are rarely struck down
 this is because governments, at all levels, want to comply with the Charter and so have the
legislative proposals being considered examined for risks of constitutional challenges
 if a risk is identified, the policy staff in the relevant department examines various options
with a view to finding a way to accomplish the government’s objectives in a way that is likely
to be upheld by the courts
6. Political Questions (pg. 20.1)
 all constitutional interpretations have political consequences
 a constitutional challenge to government policy can only succeed if the challenger can persuade a
court that the policy is contrary to the Constitution
 although they undoubtedly influence judicial choices, judges cannot decide cases in accordance
with their personal preferences, ideological predilections, or political astuteness
 the issue is determined on the basis of the language of the Constitution – which, of course, may be
somewhat ambiguous or vague, and so some exercise of choice is involved
 judges decide cases by the application of standards of legality that are derived from the Constitution,
the statutes, and the decided cases
 by denying government the power to do something it wants to do, or by affirming the existence of the
power to do so, the courts play an important part in political controversies
 however, there is no doctrine of political questions in Canadian constitutional law – if a question as to
whether the executive or legislative action violated the Constitution is raised, then it has to be
answered by the Court, regardless of the political character of the controversy
7. Characterization of Laws (pg. 21)
(a) Comparison with Federalism Review (pg. 21)
 the (two stage) process of judicial review of legislation under the Charter of rights is to first
determine whether the challenged law abridges a charter right, and if it does, then to determine
whether it can be justified under s. 1
 for the characterization of laws for the purpose of federalism review, the court ascertains the
matter (pith or substance) of a challenged law, and then decides whether that matter comes
within one of the classes of subjects (head of power) conferred upon the enacting body
(b) Purpose or Effect (pg. 23)
 a law will offend the Charter if either its purpose or its effect is to abridge a Charter right (as was
established by the Sunday-closing cases:

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 in R. v. Big M Drug Mart (1985), the SCC held that the federal Lord’s Day Act, by prohibiting
commercial activity on a Sunday, abridged the guarantee of freedom of religion in s. 2(a) as
its purpose was the religious one of compelling the observance of the Christian Sabbath
 it was not necessary to consider whether the effect was to do so because effects cannot be
relied upon to save legislation with an invalid purpose
 in R. v. Edwards Books and Art (1986), the Sunday closing law enacted by the province was
established with a secular purpose of prescribing a uniform pause day for retail workers and
so it passed the purpose test
 however, since the effect was to impose a burden on those retailers whose religious beliefs
required them to abstain from work on a day other than Sunday, the effect was an
abridgement of freedom of religion
 while either purpose or effect can invalidate legislation, Canadian legislative bodies rarely enact
laws that have the propose of abridging a Charter right – the purpose of the law is usually benign,
and the breach of the Charter is an incidental effect of the pursuit thereof
 where this is the case, the law may satisfy the justificatory standard of s. 1 and be upheld as a
reasonable limit that is demonstrably justified in a free and democratic society
(c) Trivial Effects (pg. 24)
 in R. v. Jones, the court held that where the effect of a law on a Charter right was trivial or
insubstantial, there was no breach of the Charter
(d) Severance (pg. 25)
 generally, where there has been a holding of unconstitutionality, and only one or a few of the
provisions of the challenged statutes contributed to that unconstitutionality, those provisions
were severed from the rest of the statutes enabling the rest of the statute to survive
 the only exception to this was R. v. Big M Mart (1985) where the entire Lord’s day Act was
held to be unconstitutional because of its inadmissible religious purpose
(e) Reading Down (pg. 25)
 where the language of the statute will bear two interpretations, one of which would abridge a
Charter right, and one of which would not, the Charter can be applied simply by choosing the
interpretation that does not abridge the Charter right
8. Interpretation of the Charter (pg. 25)
(a) Progressive Interpretation (pg. 25)
 because a constitution is expressed in language sufficiently broad to accommodate a wide and
unpredictable range of facts, is difficult to amend, and is likely to remain in force for a long time,
it has to be interpreted flexibly so that it can be adapted over time to changing conditions – this is
the source of the doctrine of progressive interpretation
 this requirement of flexibility (or progressive interpretation) also applies to the Charter
 progressive interpretation allows the constitution to adapt to facts that did not exist and could
not have been foreseen at the time it was drafted
(b) Generous Interpretation (pg. 27)
 the Charter of Rights does not confer power on the Parliament or Legislature – it actually denies
power to the Parliament and Legislatures
 the justification for a generous interpretation of the charter is that it will give full effect to the
civil liberties that are guaranteed by the Charter
 when judges speak of a generous or board interpretation of the charter, they are referring to
the scope of the guaranteed rights
 however, there is a relationship between the scope of the rights guaranteed by the charter
and the standard of justification under s. 1
 most judges, to stem wasteful litigation, to limit the occasions when they have to review the policy
choices of legislative bodies, and to introduce meaningful rules to the process of Charter review,
will restrict the scope of the Charter rights when interpreting the Charter
(c) Purposive Interpretation (pg. 30)
 the scope of Charter rights can be restricted without abandoning or undermining the civil
libertarian values that the Charter protects by means of a purposive interpretation of the Charter
rights
 this involves an attempt to ascertain the purpose of each right, and then to interpret the right so
as to include activity that comes within the purpose and exclude activity which does not
 although the actual purpose of a right is unknown, as the body of case law develops on the
meaning of a particular right, the core of the definition tends to become settled
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 the purposive approach and the generous approach are, if not one in the same thing, not
inconsistent
 the generous approach should be made subordinate to the purposive approach
 this is because the widest reading of a right (generous interpretation) will overshoot the
purpose of the right by including behaviour that is outside the purpose and unworthy of
constitutional protection
 the effect of a purposive approach is normally going to be to narrow the scope of the right
(d) Process as Purpose (pg. 31)
 in the US, it has been argued that the purpose of the Bill of Rights is to protect the process of
decision making – in principle, this could be adapted to apply to fit the Charter, too
 this process based theory of judicial review supplies a helpful context for interpreting particular
guarantees and offers a solution to the problem of the legitimacy of judicial review
 under this theory, all that judges are concerned with is the fairness of the process by which
legislative bodies or other agencies or officials reach their decisions – it is the integrity of the
process itself that is the proper subject of judicial review
 the theory provides a means of limiting the scope of some of the broader charter guarantees and
thereby reduces the political element of judicial decision-making
 however, many of the broader Charter guarantees are substantive and only a few are truly
supportive of the democratic political process, and the legal guarantees, although procedural in
form, are ultimately directed to the substantive goal of respect for individual liberty and as such
cannot be subsumed under a single process rubric
(e) Hierarchy of Rights (pg. 33)
 the Charter of Rights, by s. 33, creates two tiers of rights: the common rights that are subject to
override, and the privileged rights that are not
 there seems to be no rational basis for the Charter’s distinction between these rights
(f) Conflict Between Rights (pg. 34)
 the hierarchy of rights does not imply that the privileged rights must take priority over the
common rights when they come into conflict
 the scope of each right should be defined without regard for the existence of other rights
 when other rights are invoked in support of a challenged law, the conflict should be resolved
by application of the justificatory principles of s. 1
 in that way, the court does not assign priorities to rights except in the context of a specific
law in a particular case, preferring ad hoc balancing to definitional balancing when resolving
conflicts between rights
 although the court employs the language of s. 1, the effect of the decision is to narrow the
scope of one charter right to accommodate the exercise of another
(g) English-French Discrepancies (pg. 36)
 pg. 36
9. Sources of Interpretation (pg. 37)
(a) Pre-Charter Cases (pg. 37)
 in interpreting the charter, the doctrine of precedent applies in the same way as it applies to the
interpretation of other constitutional provisions
 however, there will be instances of cases decided before the adoption of the Charter in 1982 that
will be relevant
 the closest being those interpreting the Canadian Bill of Rights
 but because the Charter does not have constitutional status and contains internal indications
that it affords stronger protection for the guaranteed rights than the Bill of Rights did, the
court has consistently departed from that periods decisions interpreting language in the Bill
which is similar to language in the Charter
 the cases interpreting the Constitution Act, 1867 will usually be irrelevant to the interpretation of
the charter as they will rarely have any bearing on the question whether that law or a similar law
abridges a Charter right (since they will have addressed whether a law is in relation to a matter
coming within a class of subjects allocated to the enacting legislative body)
(b) American Cases (pg. 38)
 the American Bill of Rights was an important source of inspiration for the Charter
 obviously, the decisions of the Supreme Court of the United States interpreting language that is
similar to the Charter are useful precedents for Canadian courts

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 nevertheless, despite their usefulness, the results of American cases haven’t always been
followed in Canada
 where the Canadian court has departed from American precedents (so as to not too readily
draw parallels between constitutions born to different countries in different times and
different circumstances), it has usually been to give a broader interpretation to the rights in
the Charter
(c) International Sources (pg. 39)
 Canada is bound by a number of treaties dealing with human rights
 as treaties, these instruments are only binding at international law and are not incorporated into
Canada’s domestic law, meaning they are not enforceable in Canadian courts
 the International Covenant on Civil and Political rights includes an optional protocol, to which
Canada is a party and its terms 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 decisions of the Human Rights Committee of the United Nations are relevant to the
interpretation of the Charter
 Canada is a member of the Organization of American States, and the American Declaration of the
Rights and Duties of Man, 1948 is applicable to members thereof
 the European Conventions on Human Rights is another source of international jurisprudence that
has persuasive value for Canadian courts interpreting the Charter
 even customary (non-treaty) international law can occasionally serve as an aid to interpretation
of the Charter
(d) Legislative History (pg. 43)
 the legislative history of the Charter is admissible as an aid to its interpretation
 earlier versions of the charter, testimony given before the parliamentary committee which
examined an earlier version, debates in the senate and house of commons are all relevant and
admissible
10. Priority Between Federal and Charter Grounds (pg. 43)
 when a law is challenged on both federal and charter grounds, the federal ground is more
fundamental and should take priority over the charter ground
11. Commencement of the Charter (pg. 43)
 s. 58 of the Constitution Act, 1982 provides that the Act is to come into force on a day to be fixed by
proclamation – which was April 17, 1982
 the Charter of rights, being part of the Construction Act, 1982, accordingly came into force on the
same day – it operates only prospectively from that day onward
 any statute enacted before April 17, 1982 which is inconsistent with the Charter will be rendered of
no force or effect by the supremacy clause of the Constitution – but only as of April 17, 1982
12. Undeclared Rights (pg. 46)
 s. 26 makes clear that the Charter is not to be construed as taking away any existing undeclared
rights or freedoms – as such, rights or freedoms protected by the common law or by statute will
continue to exist notwithstanding the Charter
 s. 26 doesn’t incorporate these undeclared rights into the Charter, or constitutionalize them – they
continue to exist independently of the charter and receive no extra protection therefrom
 as such, being creatures of common law or statute, the undeclared rights can be altered or
abolished by the action of the competent legislative body
 also, the remedy under s. 24 is not available for their enforcement

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13. APPLICATION OF THE CHARTER OF RIGHTS AND FREEDOMS


Constitution Act, 1982, s. 32
 s. 32(1)(a) states that this Charter applies to the Parliament and government of Canada
 s. 32(1)(b) states that this Charter applies to the legislatures and governments of each province

Hogg. Chapter 37. “Application of Charter”


1. Benefit of Rights (pg. 1)
(a) The Issue (pg. 1)
 pg. 1
(b) Everyone, anyone, any person (pg. 1)
 the terms “everyone” (s. 2, 7 to 10, 12, and 17), “any person” (s. 11 and 19), “any member of the
public” (s. 20), and “anyone” (s. 24) are likely synonymous and likely include corporations as
well as individuals
 those rights that do not apply to corporations cannot be invoked by a corporation to obtain a
remedy under s. 24
 however, it is wrong to assume that a corporation can never invoke a right that does not
apply to a corporation
 in R. v. Big M Drug Mart (1985), whereby the court held that a corporation could invoke
the right to freedom of religion (s. 2(a)) as a defence to a criminal charge shows that
rights that do not apply to corporations by their own terms may, nevertheless, operate to
the benefit of the corporation
 a fetus is not a legal person at common law or civil law
 s. 32 requires that there must be action by a Canadian legislative body/government for the
Charter to apply – as such, it imposes a connection with Canada for a person to be the holder of
Charter rights
 it should be noted, however, that there is no independent requirement of a connection with
Canada in order to receive the benefit of Charter rights
 in Singh v. Minster of Employment and Immigration (1985) it was held that anyone who
entered Canada, even if illegally, was instantly entitled to assert rights
(c) Individual (pg. 4)
 s. 15 confers equality rights on “every individual”
 this term is more specific than “everyone” “any person” or “anyone” and probably does not
include corporations
 still, even if s. 15 doesn’t extend to corporations, corporations will still be able to rely on s. 15
a defence to a criminal charge laid under a law that is invalid by virtue of constitutional
discrimination against individual (this is the principle established by Big M Drug Mart)
 s. 15 rights die with the individual (Canada v. Hislop (2007)), and so the word individual does not
include the estate of a deceased individual
 it also does not include a foetus
(d) Citizen (pg. 5)
 generally speaking, a person need not be a Canadian citizen in order to invoke charter rights
 “everyone” in s. 7 includes every human being who is physically present in Canada
 even persons who have entered Canada illegally are entitled to most of the charter rights
simply by virtue of their presence on Canadian soil
 the same will apply to “anyone”, “any person”, and “individual” in other sections
 however, citizenship is a required qualification for some rights

(e) Permanent Resident (pg. 7)


 “permanent resident” is defined in the federal Immigration and Refugee Protection Act as:
 “a person who has acquired permanent resident status”
 it is a technical term in immigration law meaning a person who has been officially admitted to
Canada as a permanent resident, but who has not taken on Canadian citizenship
 the mobility rights of s. 6(2) (but not s. 6(1)) apply to every citizen as well as to every person
who has the status of a permanent resident of Canada
2. Burden of Rights (pg. 8)
(a) Both Levels of Government (pg. 8)
 s. 32(1) governs who is bound by the charter
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 it applies to the Parliament and government of Canada and to the legislatures and government of
each province
 as such, both levels of government are bound by the Charter
 the Canadian Bill of Rights, on the other hand, only applied (and still only applies) to the
federal level of government
(b) Parliament or Legislature (pg. 9)
 the reference in s. 32 to the “Parliament” an a “legislature” make clear that the Charter operates
as a limitation on the powers of those legislative bodies
 the word “parliament” means the federal legislative body
 the word “legislature” means the provincial legislative body
 any statute enacted by either body which is inconsistent with the Charter will be ultra vires (i.e.;
outside the power) of that enacting body, thereby it will be invalid
 s. 91 and 92 of the Constitution of Canada confer all of the legislative powers of the federal
Parliament and the provincial Legislatures – the Charter of Rights applies to these powers
 that is not to say that a legislative assembly may never act in derogation of a guaranteed
right; it is only to say that a rule adopted by a legislative assembly in derogation of a Charter
right would have to be justified as a reasonable limit under s. 1
(c) Statutory Authority (pg. 13)
 action taken under statutory authority is valid only if it is within the scope of that authority
 because s. 32 makes the charter of rights applicable to the federal parliament and the provincial
legislatures, both bodies have lost the power to enact laws that are inconsistent with thereof
 since neither Parliament nor Legislature can pass a law in breach of the Charter, it follows, then,
that neither body can authorize action which would be in breach of the Charter either –
therefore, anybody exercising statutory authority is also bound by the charter
 the charter applies to the exercise of statutory authority regardless of whether the actor is part of
the government or is controlled by the government – it is the exertion of power of compulsion
granted by statute that causes the charter to apply
 although some bodies (e.g.; universities, hospitals, corporations) are established and
empowered by statute, they do not possess the coercive power of compulsion/governance to
which the Charter applies (in other words, they do not possess powers any larger than those
of a natural person) and as such, do not count as statutory authorities
 in Stoffman v. Vancouver General Hospital (1990) the SCC held that although it was
established and empowered by statute, and although it was performing a public service,
the hospital did not exercise any power of compulsion in providing medical services, and
it was not controlled by the government, therefore it was not bound by the Charter
 although, it should be noted that in Eldridge v. British Columbia (1997), it was held
that the Charter was applicable despite the absence of any power of compulsion
 and in two other cases, (Bhindi and Lavigne), it was held that the Charter was
inapplicable despite the presence of a power of compulsion
 the charter also applies to the action of the federal and provincial governments, including all
bodies and persons controlled by a government, even if the governmental action isn’t based on
statutory authority
 but, outside the sphere of government, the charter will apply only to persons or bodies
exercising statutory authority
(d) Amending Procedures (pg. 18)
 amending procedures that require the concurrence of several legislative houses (under s. 38, 41,
43) are not constrained by the Charter
 limited powers of amendment that are possessed by the federal Parliament alone (s. 44) or by
each provincial Legislature alone (s. 45) are constrained by the Charter
(e) Government (pg. 18)
 government, (besides in the sense of legislative bodies acting under statutory authority), also acts
under prerogative powers (i.e.; common law powers possessed only by government), and under
common law powers that are possessed by everyone
 s. 32 makes the Charter applicable to governmental action taken under both kinds of common
law powers
 because, to permit government to pursue policies violating charter rights by means of
contracts or agreements with other persons or bodies cannot be tolerated
(Douglas/Kwantlen Faculty Assn. v. Douglas College (1990))
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 also included are those crown corporations and public agencies that are outside the formal
departmental structure, but which, by the virtue of a substantial degree of ministerial control, are
deemed to be “agents” of the crown
 the charter will apply to any body relying on a statutory power, regardless of whether or not the
body is within the term “government” or not
(f) Courts (pg. 20)
 the answer of whether the charter applies to the courts is not settled
 the no answer came in Retail, Wholesale and Department Store Union v. Dolphin Delivery (1986)
 the yes answer came in R. v. Rahey (1987) wherein it was stated that courts, as custodians of the
principles enshrined in the charter, must themselves be subject to charter scrutiny in the
administration of their duties
 also, many of the charter rights contemplate that the courts are bound by the charter
 the reference in s. 32 to “Parliament” and “Legislature” could also be regarded as catching court
action, because courts are established (or continued) by statute, and their powers to grant
injunctions and make other orders are granted (or continued) by statutes
 since other statutory tribunals have to comply with the charter, the courts should have to do
so, too
(g) Common Law (pg. 23)
 since common law is “made” by the courts, whether the charter applies to the common law is
closely related to whether the charter applies to the courts
 in Retail, Wholesale and Department Store Union v. Dolphin Delivery (1986), the court excluded
from Charter review the rules of common law that regulate relationships between private parties
 nonetheless, the court also said that the judiciary ought to apply and develop the principles of
the common law in a manner that is consistent with the fundamental values enshrined in the
Constitution
 as such, if the applicable law is a rule of the common law, the charter does not apply
 if, however, the law is a rule of statute law, the charter does apply (the statute supplies the
needed element of governmental action)
 in Grant v. Torstar Corp (2009), following the decision in Hill v. Church of Scientology (1995), it
was held that the common law, though not directly subject to charter scrutiny where disputes
between private parties are concerned, may be modified to bring it into harmony with the
charter
 the exclusion of the common law from charter review isn’t that significant; although the charter
doesn’t apply directly to the common law, it does apply indirectly
(h) Private Action (pg. 29)
 the charter, because of s. 32, applies only where there has been some governmental action
 the rights guaranteed by the Charter take effect only as restrictions on the power of government
over the persons entitled to the rights
 the charter regulates the relations between government and private persons, but it does not
regulate the relations between private persons and private persons
 private action is excluded from the application of the charter
 a constitution establishes and regulates the institutions of government, and it leaves to those
institutions the task of ordering the private affairs of the people
 the word “private” (when saying that the charter does not apply to private action) denotes a
residual category from which it is necessary to subtract those cases where the existence of as
statute or the presence of government does make the charter applicable
 if the charter were extended to private activity, then the charter and the judicial review that
accompanies its prescriptions would be intolerably pervasive, applying to even the most intimate
relationships
 the effect of the governmental action restriction is that there is a private realm in which
people are not obliged to subscribe to state values, and into which constitutional norms do
not intrude
(i) Extraterritorial Application (pg. 33)
 s. 32 confines the application of the charter to the legislative bodies and governments of Canada
and the provinces
 foreign governments are not bound by the charter, and their actions cannot be breaches of the
charter

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 Canada has entered into extradition treaties with other states under which Canada agrees to
surrender to the other state a person who has been charged with or convinced of an offence in the
other state but who has fled to Canada

Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624


Facts:
 each of the appellants was born deaf, and their preferred means of communication is sing language
 the appellants contend that the absence of interpreters impairs their ability to communicate with their
doctors and other health care providers, and thus increases the risk of misdiagnosis and ineffective
treatment
 the hospital did not provide sign-language interpretation for deaf persons seeking medical services, an
omission that would be a breach of s. 15 (equality guarantee) if it were made by an entity that was
bound by the Charter
Issues:
 is a hospital bound by the Charter – that is, whether, and in what manner, the charter applies to the
decision not to provide sign language interpreters for the deaf as part of the publically funded scheme for
the provision of medical care and, if a charter violation were to be found ,what the appropriate remedy
would be
Held:
 in the case of Stoffman v. Vancouver General Hospital (1990) the SCC held that although it was
established and empowered by statute, and although it was performing a public service, the hospital did
not exercise any power of compulsion in providing medical services, and it was not controlled by the
government, therefore it was not bound by the Charter
 in this case, however, the hospital was implementing a specific government policy or program as per
British Columbia’s Hospital Services Act, which funded the provision of hospital services
 the mere fact that an entity performs a public function, or the fact that a particular activity may be
described as public in nature, will not be sufficient to bring it within the purview of government for
the purposes of s. 32
 in order for the charter to apply to a private entity, it must be found to be implementing a specific
governmental policy or program – hospitals, in providing medically necessary services, carry out a
specific governmental objective
 as deaf persons, the appellants belong to an enumerated group under s. 15(1), namely the physically
disabled – the question is whether they have been afforded equal benefit of the law without
discrimination within the meaning of s. 15(1) of the charter
 s. 15(1) makes no distinction between laws that impose unequal burdens and those that deny equal
benefits – any law in violation of s. 15(1), unless it can be saved by s. 1 is unconstitutional
 the failure to provide sign language interpretation where it is necessary for effective communication
constitutes a prima facie violation of the s. 15(1) rights of a deaf person as it denies them the equal
benefit of the law and discriminates them in comparison with hearing persons

Greater Vancouver Transportation Authority v. Canadian Federation of Students, [2009] 2 S.C.R.


295
Facts:
 the appellant transit authorities (BC Transit and TransLink) operate public transportation systems in
British Columbia
 they refused to post the respondent’s advertisements on their buses on the basis that their policies permit
commercial but not political advertising on public transit vehicles
 the respondents claim that the policy violated their right to freedom of expression as per s. 2(b) of the
charter
 the trial judge dismissed the action, saying the right to freedom of expression had not been infringed
 the court of appeal reversed the trial judgment, and declared the advertising policies to be of no force or
effect on the basis of s. 52(1) of the constitution Act, 1982 or s. 24(1) of the charter
 appeal filed to the SCC
Held:
 the appeal should be dismissed
 the appellant transit authorities are ‘government’ within the meaning of s. 32 of the charter – and the
charter applies not only to parliament, the legislatures and the government themselves, but also to all
matters within the authority of those entities

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 since the transit authorities are government entities, the charter applies to all their activities
 BC Transit is a statutory body designated by legislation as an agent of the government and cannot
operate autonomously from the provincial government
 TransLink is not an agent of the government, but it is substantially controlled by a local government
entity and is therefore itself a government entity
 the respondents are not requesting that the government support or enable their expressive activity, they
seek the freedom to express themselves by means of an existing platform that they are entitle to use
 the limits resulting from the policies of the transit authorities are not justified under s. 1 pursuant to such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society
 having chosen to make the sides of buses available for expression on such a wide variety of matters,
the transit authorities cannot, without infringing s. 2(b) of the charter, arbitrarily exclude a
particular kind or category of expression that is otherwise permitted by law

14. OVERRIDE OF RIGHTS


Constitution Act, 1982, s. 33 (pg. 173)
 s. 33 states that the federal parliament or a provincial legislature may expressly declare in an Act that
the Act as a whole, or a provision thereof, shall operate notwithstanding s. 2, or 7 to 15 of the Charter

Hogg. Chapter 39. “Override of Rights”


1. Section 33 (pg. 1)
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 s. 33 enables the Parliament or a Legislature to “override” s. 2 or 7 to 15 of the Charter


 as per s. 33(2) if a statute contains an express declaration that it is to operate notwithstanding the
provisions of s. 2 or 7 to 15, then that statute will operate free from the invalidating effect of the
Charter provisions of the section(s) referred to in its declaration
 through the use of this override power, the parliament or legislature is enabled to enact a statute
limiting (or abolishing) one or more of the rights or freedoms guaranteed by those sections without
the need to show reasonableness or demonstrable justification thereof
 if the override power did not exist, or it wasn’t exercised, then such a statute would be valid only if
it could be saved under s. 1 of the charter – that it came within such reasonable limits prescribed
by law as can be demonstrably justified in a free and democratic society
2. History of s. 33 (pg. 2)
 s. 33 wasn’t part of any earlier versions of the charter
 earlier, the provinces had been opposed to the charter because it limited their sovereignty – s. 33
preserved that sovereignty (provided that the legislature satisfies the requirements of the section)
 on November 5, 1981, the consent of the provinces (other than Quebec) was secured
 outside of Quebec, the power of override has only been used three times
 seven of the ten provinces, and two of the three territories have never used the power of override
– and neither has the federal parliament
3. Rights That May Be Overridden (pg. 5)
 not all charter rights can be overridden by using s. 33
 s. 33 only applies to s. 2 (fundamental freedoms), s. 7 to 14 (legal rights), and s. 15 (equality
rights)
 it does not apply to s. 3 to 5 (democratic rights), s. 6 (mobility rights), s. 16 to 23 (language
rights), s. 24 (enforcement provision), or s. 28 (sexual equality)
 in order to be effective under s. 33(2), the declaration must refer specifically to the charter provision
that is to be overridden (or provisions, as the case may be)
 a declaration that does not specify the particular provision(s) to be overridden would not be
effective
4. Five-Year Limit (pg. 5)
 s. 33(3) subjects the override power to a temporal restriction whereby an express declaration will
automatically expire at the end of five years
 s. 33(4) permits the declaration to be re-enacted
 but under s. 33(5) the re-enacted declaration also expires at the end of five years
 this forces the enacting body to reconsider the override ever five years
5. Specificity of Declaration (pg. 5)
 the exercise of the override power must be express – it cannot be inferred or implied
 the express declaration must also be contained in the statute itself
 the express declaration must be specific as to which of the charter right(s) able to be overridden
is(are) to be overridden

6. Retroactive Effect (pg. 7)


 in Ford v. Quebec (1988), it was held that the presumption against retroactivity should be applied to
s. 33, and the section should be construed as permitting prospective derogation only
 this is because a person should be aware of his or her constitutional rights at the time of taking
action, and not be vulnerable to retroactive change
 in other words, rights should not be able to be taken away retroactively
7. Judicial Review (pg. 8)
 a declaration under s. 33, if it does not confine to the requirements thereof, will be held to be invalid
by the courts
 it must be confined to the rights specified in s. 33
 it must be specific as to the statute that is exempted from the charter and as to the rights that are
overridden
 it must not be given a retroactive effect
 although s. 33 doesn’t expressly state that s. 1 of the charter can be overridden, it is implied that
there is no need to show reasonableness or justification under s. 1 in order for the declaration to be
valid
8. Evaluation of s. 33 (pg. 9)

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 under s. 1, the decision whether a law can survive conflict with a guaranteed right is made by a court
upon showing that it is a reasonable limit that can be demonstrably justified in a free and democratic
society
 under s. 33, the parliament or legislature makes the decision for whatever reasons seem good to it
 with the exception of Quebec, there are very few uses of the power of override – it is clear that
governments are reluctant to use s. 33
 this reluctance is probably partly from a principled commitment to the charter
 furthermore, the inclusion of such a declaration in a bill performs a signalling function alerting
critics to the fact that the legislation being proposed is inconsistent with the charter
 therefore, it seems clear that s. 33 will be used infrequently and only when the legislating body is
persuaded that there are powerful reasons of public policy to justify its use
 by virtue of s. 33, a judicial decision to strike down a law in breach of s. 2, or 7 to 15 of the charter is
not final; it is open to legislative review in that the competent legislative body can still re-enact the
law by including the notwithstanding clause/declaration contemplated by s. 33

Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 (pg. 174)


Facts:
 respondent sought a declaration from the SCC that the following sections of the Charter of the French
Language in Quebec were inoperative and of no force of effect:
 s. 58: requiring public signs and posters and commercial advertising to be solely in French
 s. 69: that only the French version of a firm name to be used in Quebec
Issues:
 whether ss. 58 and 69 infringe the freedom of expression guaranteed by s. 2(b) of the Canadian charter
of rights and freedoms and s. 3 of the Quebec charter of human rights and freedoms
 whether ss. 58 and 69 infringe the guarantee against discrimination based on language in s. 10 of the
Quebec charter
Held:
 the law banning the use of languages other than French in commercial signs was an infringement of the
charter right to freedom of expression
 s. 58 of the charter of French language is protected from the application of s. 2(b) of the Canadian
charter because of its valid override provision enacted pursuant to s. 33
 s. 69 of the charter of the French language is not protected from the application of s. 2(b) since it was
not affected by an act to amend the charter of the French language as it ceased to have effect five years
after the enacting act came into force

15. LIMITATION OF RIGHTS


R v Oakes, [1986]
Alberta v Hutterian Brethren of Wilson Colony, 2009
Constitution Act, 1982, s. 1
 s. 1 says that the Canadian charter of rights and freedoms guarantees the rights and freedoms set out in
it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and
democratic society

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Hogg. Chapter 38. “Limitation of Rights”


1. Introduction to s. 1 (pg. 2)
 s. 1 guarantees the rights and freedoms set out in the charter, but makes clear that they are not
absolute – they are subject to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society
 s. 1, therefore, contemplates that judicial review of legislation under the charter should proceed
in two stages:
 the court must first decide whether the challenged law has the effect of limiting one of the
guaranteed rights;
 and if it does, then the court must decide whether the limit is a reasonable one that can be
demonstrably justified in a free and democratic society
 s. 1 has been interpreted as imposing stringent requirements of justification which are more difficult
to discharge than the requirements that would have been imposed by the courts in the absence of a
limitation clause
 under s. 33 it is possible to enact a law that overrides a charter right by including in the law a
notwithstanding clause
 as such, a law that cannot satisfy the standard of justification required by s. 1 may still be
competent to the parliament or legislature under s. 33
2. Rationale of s. 1 (pg. 4)
 it should not be possible to take away alright just because, on the balance of things, the benefits to
others will outweigh the costs to the right holder
 in R. v. Oakes (1986), the SCC pointed out that the words free and democratic society in s. 1 set out
the standard of justification of limits under s. 1
 and since the guaranteed rights are themselves derived from the values of a free and democratic
society, the underlying values of a free and democratic society are thus responsible for both
guaranteeing the rights in the charter, and in the appropriate circumstances, justifying the
limitations upon those rights
3. Relationship Between s. 1 and Rights (pg. 6)
 although there is a close relationship between the standard of justification required under s. 1 and
the scope of the guaranteed rights, in R. v. Oakes (1986), the SCC decided to prescribe a single
standard of justification for all rights, and to make that standard a high one, and to cast the burden
of satisfying it on the government
 however, it should be noted that courts will find a way of upholding legislation in the face of charter
claims that are regarded by the judges as weak
4. Burden of Proof (pg. 7)
 at the first stage of a charter review, the court must decide whether a charter right has been
infringed – at this stage, the burden of proving all elements of the breach of a charter right rests on
the person asserting such a breach
 the second stage is reached only if a charter infringement has been found via the first stage
 the second stage of a charter review is the inquiry into justification under s. 1 – at this stage, the
burden of persuasion shifts to the government (or other party) seeking to support the challenged law
 it is for the other party to persuade the court that the challenged law is a reasonable limit and
can be demonstrably justified in a free and democratic society
 in R v. Oakes (1986), the standard of proof, the court held, was the civil standard, namely proof by a
preponderance of probability which must be applied rigorously
 in order to prove the justification under s. 1 evidence would generally be required, although
there may be cases where certain elements of s. 1 analysis are obvious or self evident
5. Presumption of Constitutionality (pg. 9)
 when a statute is attached on federal grounds, there is (or ought to be) a presumption of
constitutionality – this presumption carries three legal consequences (doctrines of judicial restraint
designed to minimize intrusion by the judicial branch in the affairs of the legislative branch):
 the court should exercise restraint in judicial review, striking down the law only if it clearly
offends constitutional restrictions on the power of the enacting parliament or legislature
 where the validity of a law turns on a finding of fact (e.g.; existence of emergency), that finding of
fact need not be proved strictly by the government, it is sufficient that there be a rational basis for
the finding

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 where a law is open to two interpretations, under one of which it would be unconstitutional, and
under the other of which it would be constitutional, the latter interpretation is the one that
should be selected (i.e.; reading down)
 in charter cases, there is no presumption of constitutionality (except in the case of reading down);
there is no derogation of individual rights if the individual wins through a reading down of the
statute as opposed to a holding of invalidity
6. Limits (pg. 10)
 even severe restrictions on charter rights will count as limits, and will therefore be susceptible to s. 1
justification
 the severity of the contravention would not be irrelevant because it would be harder to establish that
a severe contravention was reasonable and demonstrably justified
7. Prescribed by Law (pg. 11)
(a) Definition of Prescribed by Law (pg. 11)
 s. 1 provides that the charter rights are subject to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society
 prescribed by law means that an act that is not legally authorized cannot be justified under s. 1,
no matter how reasonable or demonstrably justified it may appear to be
 this ensures that in order to preclude arbitrary and discriminatory action by government
officials, all official action in derogation of rights must be authorized by law
 this also ensures that citizens have a reasonable opportunity to know what is prohibited so that
they can act accordingly
 therefore, the law must be adequately accessible to the public, and it must be formulated with
sufficient precision to enable people to regulate their conduct by it and to provide guidance to
those who apply the law
 in Greater Vancouver Transportation Authority v. Canadian Federation of Students (2009), the
SCC held that the phrase prescribed by law in s. 1 entails accessibility (i.e.; laid out in such a way
that it is accessible to/by the public – e.g.; statutes, policies, regulations, by-laws, etc.) and
precision
(b) Discretion (pg. 14)
 a law that confers a discretion on a board or official to act in derogation of a charter right will
satisfy the prescribed-by-law requirement if the discretion is constrained by legal standards

(c) Vagueness (pg. 16)


 it is a principle of fundamental justice in Canada that a statute is void for vagueness if its
prohibitions are not clearly defined
 a vague law offends the values of constitutionalism as it does not provide sufficiently clear
standards to avoid arbitrary and discriminatory applications, nor does it provide reasonable
notice of what is prohibited so that citizens can govern themselves safely
 this is in line with the rule that precision is one of the ingredients of the prescribed by law
requirement of s. 1
 although it is not practicable to seek absolute precision in a statute
 what is required is an intelligible standard whereby citizens are given fair notice of what is
prohibited and there are provisions for checks on the enforcement of discretion
8. Reasonable and Demonstrably Justified (pg. 17)
(a) Introduction (pg. 17)
 both the requirements of reasonableness and demonstrably justified are necessary
 they are cumulative, not alternative
 both reasonableness and demonstrably justified must be satisfied, meaning that there is a single
standard to be applied to all laws limiting charter rights
(b) Oakes Test (pg. 17)
 R. v. Oakes (1986) laid down the criteria that must be satisfied to establish that a limit is
reasonable and demonstrably justified in a free and democratic society
 there are four criteria to be thusly satisfied:
 1. (9) sufficiently important objective – the law must pursue an objective that is sufficiently
important to justify limiting a charter right
 2. (10) rational connection – the law must be rationally connected to the objective
 3. (11) least drastic means – the law must impair the right no more than is necessary to
accomplish the objective
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 4. (12) proportionate effect – the law must not have a disproportionately severe effect on the
persons to whom it applies
 nearly all s. 1 cases have turned on the answer to the inquiry of whether the law has impaired the
charter right no more than is necessary to accomplish the objective (#3)
9. Sufficiently Important Objective (pg. 19) (8(b)1)
(a) Identification of Objective (pg. 19)
 practically speaking, the objective of the legislators enacting the challenged law may be unknown
 the courts will look into the legislative history, but that too can be silent or unclear
 nonetheless, courts usually assume that the statute itself reveals its objective even if there is no
supporting evidence
 the statement of objective can be expressed at various levels of generality
 and the higher the level of generality at which a legislative objective is expressed, the more
obviously desirable the objective will seem to be
 this will move the s. 1 inquiry into the proportionality of the means that the law employs
to accomplish the objective (i.e.; 2, 3, and 4 of the Oakes analysis)
 however, when step 3 is reached, the high level of generality will become a serious
problem for the justification of the law
 if the objective is stated at a high level of generality, it will be easy to think of other
ways in which the objective could be accomplished with less interference with the
charter rights
 the only reason for specifying the legislative objective is to determine whether there is
sufficient justification for an infringement of the charter
 as such, the statement of the objective should be related to the infringement of the
charter
(b) Importance of Objective (pg. 22)
 according to R v. Oakes (1986), the only kind of law that can serve as a justified limit on a charter
right is one that pursues an objective that is sufficiently important to justify overriding a charter
right
 the legislative objective must meet the standard implied in the words free and democratic society
in s. 1 – only objectives that are consistent with the values thereof will qualify
 the objective must relate to concerns that are pressing and substantial, rather than just trivial
 the objectives must be directed to the realization of collective goals of fundamental importance
 in Quebec School Board case (1984), the court held that a denial of a charter right could not
be justified under s. 1 – a denial thereof goes further beyond a limitation than allowed by s. 1
 similarly, in Attorney General of Quebec v. Ford (1988) it was held that although an objective
may be legitimate, there must not be a disproportionate limitation of rights
(c) Quebec’s Distinct Society (pg. 23)
 Quebec’s distinct society provides the motivation for laws with regards to language, education
and culture that have no counterparts in the other provinces
 the Meech Lake Accord of 1987 would have amended the constitution by adding a clause
recognizing that Quebec constitutes a distinct society however it attracted opposition on account
of its vagueness and possible effect on charter rights, and its suggestion of special status for the
province of Quebec
(d) Inadmissible Objectives (pg. 25)
 in R. v. Oakes (1986), it was made clear that a legislative objective would not count as
justification if it was not sufficiently important to override a charter right – that the objective:
 would have to be consistent with the values of a free and democratic society as per s. 1
 would have to relate to concerns that were pressing and substantial
 three rules emerged from the R. v. Big M Drug Mart (1985) case:
 an objective cannot provide the basis for a s. 1 justification if the objective is incompatible
with the values entrenched by the charter of rights
 in this case, the religious objective of compelling the observance of a Christian Sabbath
was incompatible with the guarantee of freedom of religion
 compare that with the objective of providing a common day of rest in R. v. Edwards Books
and Art (1986)
 an objective cannot provide the basis for s. 1 justification if the objective is ultra vires the
enacting legislative body on federal distribution of powers grounds

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 therefore, the provision of a common day or rest could not be accepted as the objective of
the federal law in R. v. Big M Drug Mart (1985), although it could be accepted as the
objective of the provincial law in R. v. Edwards Books an Art (1986)
 an objective cannot provide the basis for s. 1 justification if that objective did not, in fact,
cause the enactment of the law – i.e.; the rule against shifting objectives
 in R. v. Big M Drug Mart (1985), the court rejected the notion that the purpose of a law
might change over time with changing social conditions as that would create uncertainty
and invite the relitigation of charter issues previously settled
 the purpose of a function is the intent of those who drafted and enacted the legislation at
the time, and not of any shifting variable

(e) Shifting Objectives (pg. 26)


 an objective cannot provide the basis for s. 1 justification if that objective did not, in fact, cause
the enactment of the law – i.e.; the rule against shifting objectives
 in R. v. Big M Drug Mart (1985), the court rejected the notion that the purpose of a law might
change over time with changing social conditions as that would create uncertainty and invite the
re-litigation of charter issues previously settled
 the purpose of a function is the intent of those who drafted and enacted the legislation at the
time, and not of any shifting variable
(f) Cost (pg. 28)
 in Singh v. Minister of Employment and Immigration (1984) the court said that the guarantees of
the charter would be illusory if they could be ignored because it was administratively convenient
(i.e.; that considerable time and money can be saved by adopting administrative procedures
which ignore the principles of fundamental justice) to do so
 it has been postulated that where the cost of complying with the charter is high, but not
prohibitive, it would be a reasonable limit on the right for government to be permitted to achieve
compliance over a period of time (on the basis of a plan that would spread the cost over the
compliance period)
 the SCC has only in one case accepted that the saving of government money is a sufficiently
important objective to justify a limit on a charter right – Newfoundland v. N.A.P.E. (2004)
 the government of the province singed a pay-equity agreement with female workers in the
hospital sector providing for a series of pay increases over five years to bring their pay up to
that of comparable male workers
 before the payments started, the Public Sector Restraint Act was enacted and among other
cutbacks, it deferred the payments to a date three years later than the agreed upon date
 although the implementation of pay equity was delayed (and not cancelled), no provisions
were made for retroactive pay for the period of the delay, and so the government was able to
save about $24 million
 the workers sued for the pay equity adjustments, arguing that the Act was unconstitutional
 the SCC agreed that it was in breach of s. 15 (discrimination on the basis of sex) but that it
was saved by s. 1 as the province’s financial crisis (it was in shortfall of $200 million)
supplied a sufficiently important objective to justify the limit on the female worker’s equality
rights
 although it should be noted that a financial consideration would not normally suffice as
the objective of a limit on a charter right, but that the government in this case was
managing a financial crisis, and the Act had made cuts to many other programs in
addition to the pay-equity
10. Rational Connection (pg. 32) (8(b)2)
(a) Definition (pg. 32)
 after the first step has been proved/found, the second step of the Oakes test of justification of a
law that limits a charter right is to determine whether the law is rationally connected to the
objective of the law
 the requirement of rational connection calls that the law should not be arbitrary, unfair, or based
on irrational considerations
 in Banner v. Canada (1997) where the SCC held that it was a breach of equality rights to impose
more stringent requirements for Canadian citizenship on a person born outside Canada before
1977 to a Canadian mother than the same born to a Canadian father, the court held that there
was no rational connection between the objective and the discrimination
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 that is, the children of Canadian mothers could not rationally be regarded as more dangerous
than the children of Canadian fathers, and therefore the legislation failed the requirement of
rational connection
(b) Causation (pg. 35)
 the essence of rational connection is a causal relationship between the objective of the law and
the measures enacted thereby
11. Least Drastic Means (pg. 36) (8(b)3)
(a) Minimum Impairment (pg. 36)
 the requirement of least drastic means (the third step in the Oakes test of justification of a law
that limits a charter rights) requires that the law should impair as little as possible the right or
freedom in question – this is also known as the minimum impairment test
 that the law should impair the right no more than is necessary to accomplish the desired
objective – in other words, that it should pursue the objective by the least drastic means
 this requirement turns out to be the basis of s. 1 justification – and as such, of the four steps in the
Oakes tests of justification of a law that limits a charter right, it is this step where the majority of
cases are relevant, and a number of laws have failed this requirement
(b) Margin of Appreciation (pg. 38)
 in most cases, judges can come up with something a little less drastic or restrictive insofar as the
limits a law places on charter rights
 however, uniformity of provincial laws that would be entailed by a stringent requirement of least
drastic means is in conflict with the federal values of distinctiveness, diversity and
experimentation in Canada
 and if s. 1 is to permit some accommodation of these federal values, judges have to allow
provincial legislatures a margin of appreciation whereby some discretion within which
different legislative choices in derogation of charter rights can be tolerated
 the SCC recognizes that some margin of appreciation has to mitigate the least-drastic-means
requirement
 in R. v. Edwards Books and Art (1986), the court held that a legislature must be given
reasonable room to manoeuvre – in effect, it recognized a margin of appreciation
 cases since Edwards Books have applied the requirement in a flexible fashion, looking for a
reasonable legislative effort to minimize the infringement of the charter rights, rather than
insisting that only the least possible infringement could survive
 in several cases, it was that a law could have been devised that would have been less intrusive of
the applicable charter right than the law that was enacted, however, the court was willing to
defer to the legislative choice on the basis that it was within a margin of appreciation (a zone of
discretion in which reasonable legislators could disagree while still respecting the charter right)
 R. v. Whyte (1988); Canadian Newspapers Co. v. Attorney General of Canada (1988); British
Columbia Government Employees’ Union v. Attorney General of British Columbia (1988);
United States v. Cotroni (1989); Prostitution Reference (1990); Harvey v. New Brunswick
(1996)
 among the considerations that are invoked by the court in support of a degree of deference to a
legislative choice are where the law:
 is designed to protect a vulnerable group (e.g.; children)
 is premised on complex social-science evidence (e.g.; effects of advertising)
 deals with complex social issues (e.g.; smoking)
 reconciles the interest of competing groups (e.g.; mandatory retirement)
 allocates scarce resources
12. Proportionate Effect (pg. 43) (8(b)4)
 the requirement of proportionate effect is the fourth and last step in the Oakes tests of justification
 in R. v. Oakes (1986), it was said to require a proportionality between the effects of the measures
which are responsible for limiting the charter right or freedom, and the objective which has been
identified of sufficient importance
 in R. v. Edwards Books and Arts (1986), it was said that the effects of the limiting measures must
not so severely trench on individual or group rights that the legislative objective, albeit
important, is nevertheless outweighed by the abridgement of rights
 it should also take into account the proportionality between the deleterious and the salutary
effects of the measures (Dagenais v. CBC (1994))

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 this fourth step is reached only after the means have already been judged to be rationally connected
to the objective (second step), and to be the least drastic of all the means of accomplishing the
objective (third step)
 the requirement of proportionate effect requires balancing of the objective sought by the law against
the infringement of the charter – i.e.; it asks whether the charter infringement is too high a price to
pay for the benefit of the law
 it should be noted, however, that this step is perhaps redundant
 if the objective of a law is sufficiently important to justify overriding a charter right (first step),
and if the law is rationally connected to the objective (second step), and if the law impairs the
charter right no more than is necessary to accomplish the objective (third step), then how can its
effects be judged to be too severe (fourth step)
 however, in Alberta v. Hutterian Brethren of Wilson Colony (2009), the SCC said that the first
three stages of Oakes are anchored in an assessment of the law’s purpose, whereas the fourth step
takes full account of the severity of the deleterious effects of a measure on individuals or groups
 that is to say that although a legislative objective may, in principle, be sufficiently important to
justify limiting the claimant’s rights (step 1), but the least drastic means of accomplishing the
objective may still have too drastic an effect on the claimant’s rights for the law to be considered
a reasonable limit under s. 1 (step 4)
13. Application to Equality Rights (pg. 44.2)
 although the Oakes test has been offered as a universal rule applicable to all charter infringements, in
Andrews v. Law Society of British Columbia (1989), it was suggested that the Oakes test was too
stringent for application in all cases
 what was said in that case, in essence, was that in making innumerable distinctions between groups
and individuals in the pursuit of desirable social goals, it was not reasonable to demand the standard
of perfection from the legislative bodies (as was contemplated, in a sense, by Oakes)
14. Application to Qualified Rights (pg. 45)
(a) Scope of s. 1 (pg. 45)
 s. 1 has a role to play in justifying infringements of charter rights that are by their own terms
qualified by notions of reasonableness or regularity
(b) Section 7 (pg. 46)
 s. 7 guarantees the right not to be deprived of life, liberty, and security of the person except in
accordance with the principles of fundamental justice
 it is clear that the right to life, liberty, and security of the person can be limited by a law that
conforms to the principles of fundamental justice
 in most cases, the court has usually applied s. 1 before holding that a breach of s. 7 invalidated
the law
(c) Section 8 (pg. 47)
 s. 8 guarantees the right to be secure against unreasonable search and seizure
 after a law has been found to be in violation of s. 8 (i.e.; that the search/seizure was
unreasonable), s. 1 must then become operative to allow the crown to lead evidence of
reasonableness and demonstrable justification to support the search and seizure despite its
unreasonableness under s. 8
(d) Section 9 (pg. 47)
 s. 9 guarantees the right not to be arbitrarily detained or imprisoned
 in R. v. Hufsky (1988), it was held that the objective of preventing highway accidents was
sufficiently important to justify arbitrary detentions, and nothing less than a random stopping
procedure would be as effective in detecting and deterring the commission of traffic offences
(e) Section 11 (pg. 48)
 several of the rights of accused persons in s. 11 are qualified by requirements of reasonableness
 it is possible, in principle, for a law to fail a requirement of reasonableness in s. 11 and still pass
the more generous requirement of reasonableness in the different context of s. 1
(f) Section 12 (pg. 49)
 s. 12 guarantees the right not to be subjected to cruel and unusual treatment or punishment
 it may be an absolute right – perhaps the only one – as it is inconceivable that there would be any
situations in which it could be justifiably limited
15. Application to Common Law (pg. 49)
 the Oakes test applies to common law limits on rights
 it is well established that a rule of common law may be a limit prescribed by law under s. 1
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 R. v. Swain (1991) showed that while a rule of statute law that violated the charter would have to be
struck down, a rule of the common law could be amended by the court itself
 R v. Swain (1991), R. v. Daviault (1994), and R. v. Stone (1999) were criminal cases in which the
charter of rights applied by virtue of the presence of the crown as a party to the proceedings
 the charter does not apply in its application to private parties (i.e.; where no governmental actor
is involved)
 however, the court has held that the charter applies indirectly to the common law because the
court will examine whether the common law is consistent with charter values, and if it is not, then
the court will modify the common law to make it consistent therewith
16. Emergency Measures (pg. 51)
 the charter of rights makes no explicit provisions for the enactment of emergency measures
 the War Measures Act was proclaimed in force during WWI, WWII, and the October Crisis of 1970 –
civil liberties were severely restricted by regulations made under the Act at these times
 the War Measures Act was repealed in 1988 and replaced by the Emergencies Act, which also
authorizes restrictions on civil liberties
 it is for the courts to decide, in a situation of emergency, whether such restrictions are reasonable
and demonstrably justified in a free and democratic society

R. v. Oakes, [1986] 1 S.C.R. 103 (pg. 182)


Facts:
 respondent was charged with unlawful possession of a narcotic for the purpose of trafficking, but was
convicted only of unlawful possession
 the respondent then brought a motion challenging the constitutional validity of s. 8 of the Narcotic
Control Act whereby if a court finds an accused in possession of a narcotic, the accused is presumed to be
in possession thereof for the purposes of trafficking, unless the accused can establish otherwise
 the Ontario court of appeal found that this constituted a reverse onus and held it to be unconstitutional
as it violated the presumption of innocence (s. 11(d) of the charter)
 the crown appealed to the SCC
Issues:
 does s. 8 of the Narcotic Control Act violate s. 11(d) of the charter, making it of no force and effect
 if it is found to violate s. 11(d) of the charter, is s. 8 of the Narcotic Control Act a reasonable limit
prescribed by law and demonstrably justified in a free and democratic society for the purposes of s. 1 of
the Charter
Held:
 the crown’s appeal should be dismissed and the constitutional question answered in the affirmative
 the presumption of innocence lies at the heart of the criminal law and is protected by s. 11(d) and
(through inference) by s. 7 right to life, liberty and security of the person
 in light of this, the right to be presumed innocent until proven guilty requires that: an individual be
proven guilty beyond a reasonable doubt; the state bear the burden of proof; and criminal
prosecutions be carried out in accordance with lawful procedures and fairness
 the rational connection test does not apply to the interpretation of s. 11(d) – a basic fact may rationally
tend to prove a presumed fact, but still not prove its existence beyond a reasonable doubt
 the appropriate stage for invoking the rational connection test is under s. 1 of the charter
 s. 1 has two functions: it guarantees the rights and freedoms set out in the charter; and it states
explicitly the exclusion justificatory criteria against which limitations on those rights and freedoms
may be measured
 the onus of proving that a limitation on a charter right is reasonable and demonstrably justified in a
free and democratic society rests upon the party seeking to uphold the limitation
 two criteria must be satisfied in order to do so:
 the objective to be served by the measures limiting a charter right must be sufficiently important
to warrant overriding a constitutionally protected right or freedom – at a minimum, the objective
must relate to societal concerns which are pressing and substantial in a free and democratic
society
 the party invoking s. 1 must show the means to be reasonable and demonstrably justified – this
means the measures must be fair and not arbitrary, carefully designed to achieve the objectives in
question and rationally connected to that objective; additionally, the means should impair the
right in question as little as possible; and there must be a proportionality between the effects of

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the limiting measure and the objective (the more severe the deleterious effects of a measure, the
more important the objective must be)

Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. (pg. 187)


Facts:
 Alberta requires all persons who drive motor vehicles on highways to hold a driver’s licence, and since
1974 each licence has borne a photo of the licence holder (subject to exceptions for people who objected
to having their photographs taken on religious grounds)
 in 2003, the province adopted a new regulation that made the photo requirement universal
 of those who had previously been exempt from the photograph requirement, about 56% of which were
members of the Hutterian Brethren colonies, and they sincerely believe that the Bible prohibits them from
having their photographs taken on religious grounds
 the province suggested two alternatives, but both involving photographs be taken – the brethren
suggested a non-photograph license not to be used for identification purposes
 unable to reach an agreement, the brethren challenged the constitutionality of the regulation based on
unjustifiable breach of their religious freedom as per s. 2(a) of the charter
 both the chambers judge and the court of appeal held that the infringement of freedom of religion was
not justified under s. 1 of the charter
Held:
 the appeal by the crown should be allowed as the regulation is justified under s. 1 of the charter
 regulations are measures prescribed by law under s. 1 and the objective of the impugned regulation
of maintaining the integrity of the driver’s licensing system in a way that minimizes the risk of
identity theft is clearly a goal of pressing and substantial importance, capable of justifying limits on
rights
 the universal photo requirement permits the system to ensure that each licence in the system is
connected to a single individual, and that no individual has more than one licence
 the province is entitled to pass regulations dealing not only with the primary matter of highway
safety, but also with collateral problems associated with the licensing system
 as such, the regulation satisfies the proportionality test
 the universal photo requirement is rationally connected to the objective
 the universal photo requirement for all licensed drivers minimally impairs the s. 2(a) right
 the negative impact on the freedom of religion of colony members who wish to obtain licences
does not outweigh the benefits associated with the universal photo requirement
 the court held that the law limited the religious freedom of the Hutterian Brethren because they believed
the Bible forbade them from having their photographs taken
 and although the law passed the first three steps of the Oakes test, the fourth step also had to be
satisfied
 in this case, the fourth step was held to be satisfied because the salutary effects of the universal photo
requirement outweighed the deleterious effects on the claimant’s religious rights

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Thursday, November 22, 2012


16. FREEDOM OF CONSCIENCE AND RELIGION
Constitution Act, 1982, s. 2(a) (pg. 204)
 s. 2(a) says that “everyone has the fundamental freedom of conscience and religion”

Hogg. Chapter 42. “Religion”


1. Distribution of Powers (pg. 1)
 since the adoption of the charter of rights in 1982, any law that affects freedom of religion will be
vulnerable to challenge under s. 2(a) of the charter
 although there have been a long line of cases wherein laws with issues of a religious nature took the
classical criminal law form of a prohibition coupled with a penalty, they need not be interpreted as
holding that all laws with a religious purpose are within federal jurisdiction
 there are, however, other cases where it has been held or assumed that any law restricting
freedom of religion is within the exclusive federal competence
 on the other hand, s. 92(12) expressly allocates to the provincial legislatures the power over
solemnization of marriages, a subject with important religious dimensions
 s. 93(3) makes clear that the provincial legislature’s power over education extends to the
establishment of denominational schools
 in R. v. Edwards Books and Art (1986), the court held that it was open to a provincial legislature
to attempt to neutralize or minimize the adverse effects of otherwise valid provincial legislation
on human rights such as freedom of religion
 in Edwards Books, Dickson J. concluded the constitution does not contemplate religion as a discrete
constitutional matter falling exclusively within either a federal or provincial class of subjects;
legislation concerning religion could, therefore, be competent to either the federal or the provincial
legislature depending on the other characteristics of the law
 in other words, in classifying a law for the purpose of the federal distribution of powers, the law’s
impact on religion would not necessarily be the critical factor
 the power to make laws respecting religion is, thereby, like the power to make laws respecting other
civil liberties, which is also, for the most part, divided between the two levels of governments and is
not the exclusive preserve of either one
2. Section 2(a) of the Charter (pg. 3)
 s. 2(a) says that everyone has the fundamental freedom of conscience and religion, and is, like other
charter rights, subject to s. 1 (the limitation clause)
 a law that limits the freedom of conscience and religion will be valid under s. 1 if it comes within
such reasonable limits prescribed by law as can be demonstrably justified in a free and
democratic society
3. Freedom of Conscience (pg. 3)
 the reference to conscience in s. 2(a) would protect systems of belief that are not theocentric (i.e.;
centered on a deity), and which, as such, may not be characterized as religions for that (or some
other) reason.
In R. v. Morgentaler (1988), the court struck down abortion provisions of the Criminal Code, Wilson J.
in separate concurring judgment held that the regulation of abortion was denial of freedom of
conscience, which she defined as “personal morality which is not founded in religion” and as
“conscientious beliefs are not religiously motivated”. The decision to terminate pregnancy was a
“matter of conscience”, which was accordingly protected. None of the other judges made reference to
freedom of conscience.
4. Freedom of Religion (pg. 4)
 in R. v. Big M Drug Mart (1985), the SCC struck down the Lord’s day Act, a federal statute that
prohibited commercial activity on Sunday
 the court found that the purpose of the Act was to compel he observance of the Christian Sabbath,
and as such was an infringement of the freedom of religion of non-Christians
 by the virtue of the guarantee of freedom of religion, government may not coerce individuals to
affirm a specific religious practice for a sectarian purpose
 as such, s. 2(a), in light of Big M Drug Mart, protects religious practices as well as religious
beliefs
5. Sunday Observance (pg. 6)
 in R. v. Edwards Books and Art (1986), the case was not as straight forward as with Big M Drug Mart
whereby the purpose of the Act was to compel the observance of the Christian Sabbath
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 in Edwards Books, Ontario’s Retail Business Holidays Act was under challenge as it prohibited
retail stores from opening on Sunday
 the legislative history in this case, however, showed that its purpose was a secular one of
providing a common pause day for retail workers
 the court held, nonetheless, that the law infringed s. 2(a) as its effect was to impose an economic
burden on those who observed a Sabbath on a day other than Sunday
 still, the court upheld the law under s. 1 of the charter stating that the secular purpose of
providing a common pause day was sufficiently important to justify a limit on freedom of religion
6. Other Religious Practices (pg. 7)
 in R. v. Big M Drug Mart (1985), the court said that freedom of religion included the right to manifest
religious beliefs by worship and practice, however that such manifestations could not injure others of
the parallel rights to hold and manifest beliefs and options held by others
 therefore, freedom of religion would not protect the minority religious groups in such practices as
human sacrifice or refusal of schooling or medical treatment of children
 practices that have a religious compulsion for minority religion, where there are no governmental
interest to the contrary, s. 2(a) would require the law to accommodate minority religions by
according exemptions for their practices
 the idea that freedom of religion authorizes practice only so far as they do not injure others has been
abandoned by the SCC in favour of an unqualified right to do anything that is dictated by a religious
belief:
 in B.(R.) v. Children’s Aid Society (1995) wherein Jehovah’s Witnesses prohibited doctors from
giving a blood transfusion to their baby daughter as it went against their beliefs
 an application was made under the Ontario’s child welfare statute to make the child a
temporary ward of the Children’s Aid Society
 she was administered the blood transfusion, the order was subsequently terminated, and she
was then returned to her parents
 the parents challenged this procedure as a violation of their freedom of religion, and the
majority of the SCC agreed, saying that the right of a parent to choose the medical treatment
of a child in accordance with their religious beliefs is a fundamental aspect of freedom of
religion and as such, the statutory procedure was a serious infringement of the parent’s
rights
 however, the statutory procedure was justified under s. 1 as an intrinsic limit on freedom of
religion since a parent’s freedom of religion does not include the imposition on the child of
religious practices which threaten the safety, health, or life of the child
 another blood transfusion case was A.C. v. Manitoba (2009) which involved a 14-year-old girl
who was a Jehovah’s witness refusing a blood transfusion that was prescribed to her due to severe
internal bleeding
 although under Manitoba’s Child and Family Services Act, an order to enforce treatment that
the court considers to be in the best interest of the child could be made with respect to a child
that was 15 or younger, the judge accepted A.C. as mature enough to make decisions about
her medical treatment
 nevertheless, he ordered the blood transfusion as it would be in her best interest, otherwise
she would have been in imminent danger, of serious damage if not death
 the court found that the best interest standard of the Act, as well as a measure to protect the
life and health of vulnerable young people, made the overriding of the child’s religious
convictions resulting in a breach of s. 2(a) justified under s. 1 as a measure to protect the
child in such a situation
 in Syndicat Northcrest v. Amselem (2004), orthodox Jews proclaimed their right to build succahs
(temporary dwellings) on their balconies for a nine-day period each year during the festival of
Succoth – the condo by-laws prohibited constructions of any kind whatsoever on the balconies (in
order to preserve the harmonious external appearance of the building and the practical purpose
of keeping the balconies free of obstruction as fire escape routes) – the SCC held that the
claimants were entitled to erect their succahs in defiance of the by-laws
 the court in defining protected religious practice said that it need not be part of an
established belief system, or even a belief system shared by some others; it could be unique to
the claimant and need not even be perceived as obligatory by the claimant (voluntary
expression of faith were equally protected)

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 all that is necessary to qualify as practice for charter protection is that the claimant
sincerely believes that the practice is of religious significance
 religious belief is intensely personal and can easily vary from one person to another, the test
is subjective – further, past behaviour (expression of belief) need not be established because
individuals change and so do their beliefs
 freedom of religion confers a constitutional right to hold and profess religious views that are purely
personal and private
 in Multani v. Commission scolaire Marguerite-Bourgeoys (2006), a 13-year-old Sikh boy was
constitutionally entitled to wear a kirpan to his public school despite a board regulation that
prohibited students from bringing weapons and other dangerous objects to school
 the student sincerely believed that his religion required him to wear a kirpan made of metal
at all times – and following Syndicat Northcrest, all he had to show was that his personal and
subjective belief in the religious significance of the kirpan is sincere
 it was irrelevant that other Sikhs accept such a compromise as to wear a harmless
symbolic kirpan because this student sincerely believed that a dagger without a metal
blade would not comply with his religion
 as such, the school regulation preventing him from acting on a sincere religious belief
contravened s. 2(a) of the charter
 however, turning to s. 1, the court agreed that the safety in the school was a sufficiently
important objective to justify limiting a charter right, and there was no doubt that a bladed
weapon could cause injury
 in Alberta v. Hutterian Brethren of Wilson Colony (2009) the Hutterian Brethren brought
proceedings against the government of Alberta to obtain an exception, on religious grounds, from
the requirement of provincial law that a driver’s licence must have a photo of the holder
 the SCC held that the Hutterian claimants had a sincere religious belief that prohibited their
being photographed and that belief was protected by s. 2(a)
 however, the majority 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 claimants, who could
avoid the requirement by using alternative means of transport
 therefore, the requirement was a reasonable limit on freedom of religion and the
Hutterian claimants were not entitled to an exemption
6A. Waiver of Religious Practice (pg. 13)
 in Syndicat Northwest v. Amselem (2004), the SCC held that a party to a contract could invoke
freedom of religion to abandon a contractual obligation with the majority brushing aside the
argument that the claimants had waived their religious right
 the sincere religious belief trumped the by-laws of the condo to which they had agreed on
purchasing their units
7. Religion in Public Schools (pg. 15)
 in Zylberberg v. Sudbury Board of Education (1988), a challenge was brought to an Ontario
regulation made under statutory authority that required a public school to open or close each day
with a reading of the Lord’s prayer or other suitable prayer
 each student had a right to not participate in the religious exercises
 the court of Appeal held that the regulation was unconstitutional because it imposed Christian
observances upon non-Christian pupils and religious observances on non-believers
 the pupil’s right to be exempted from the religious exercises did not save the regulation as it
still exerted an indirect coercion on pupils to participate due to the pressure to conform to
the majority’s norms
 programmes of religious exercises or instruction in public schools will normally violate the guarantee
of freedom of religion
 however, a course on religion that examined various religions in a neutral way, not promoting any
one religion or another, or assuming the superiority of any one religion or another, would not violate
the guarantee of freedom of religion
8. Denominational Schools (pg. 17)
 private schools may offer religious exercises and instruction
 s. 2(a) requires a province to permit children to be educated outside the secular public system
 however, the province can regulate such schools in order to ensure that a core curriculum and
adequate facilities and standards of teaching are offered

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 it should be noted, however, that by virtue of s. 93 of the Constitution Act, 1867, a province’s failure
to fund the schools of religious denominations not recognized by s. 93 is not a breach of freedom of
religion under s. 2(a) or of equality under s. 15
9. Religious Marriage (pg. 18)
 in all Canadian provinces, under provincial law, marriages may be solemnized in civil or religious
ceremonies provided the statutory formalities are observed (which usually involve obtaining a licence
before the ceremony and registering afterwards)
 both civil and religious ceremonies lead to valid marriages
 a civil ceremony cannot be denied to anyone who wants to get married and has the capacity to marry
(and certainly cannot be denied on the basis of religion)
 however, a religious ceremony can be denied by a church, synagogue, mosque, temple, etc. to
those who are otherwise capable of being married but do not prescribe to the particular
characteristics of that particular faith – similarly, the religious establishment can refuse to
perform a religious ceremony that would be contrary to that particular faith
 as such, couples wishing to get married who are denied a religious ceremony can get married
in a civil ceremony
 in the Same-Sex Marriage Reference (2004), the issue was, could Parliament enact a bill legalizing
same-sex marriage for civil purposes
 it was held that Parliament could, indeed, enact such a bill under its power over “marriage” in s.
91(26) of the Constitution Act, 1867
 and so the bill to legalize same-sex marriages for civil purposes was enacted

Syllabus Cases:

1. Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551


Facts:
 orthodox Jews proclaimed their right to build succahs (temporary dwellings) on their balconies for a
nine-day period each year during the festival of Succoth – the condo by-laws prohibited constructions of
any kind whatever on the balconies (in order to preserve the harmonious external appearance of the
building and the practical purpose of keeping the balconies free of obstruction as fire escape routes)

Issues:
(1) Whether the clauses in the by-laws of the declaration of co-ownership, which contained a general
prohibition against decorations or constructions on one’s balcony, infringe the appellants’ freedom of religion
protected under the Quebec Charter; (2) if so, whether the refusal by the respondent to permit the setting up
of a succah is justified by its reliance on the co-owners’ rights to enjoy property under s. 6 of the Quebec
Charter and their rights to personal security under s. 1 thereof; and (3) whether the appellants waived their
rights to freedom of religion by signing the declaration of co-ownership.

REASONING:

 Definition of freedom of religion

- What is the definition and content of an individual’s protected right to religious freedom under the Quebec
(or the Canadian) Charter? This Court has long articulated an expansive definition of freedom of religion,
which revolves around the notion of personal choice and individual autonomy and freedom

- Dickson CJ in Big M first defined “religion”: “The essence of the concept of freedom of religion 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
and dissemination”

- Must focus on subjective perceptions of religion – determining what the individual sincerely believes

- Our Court’s past decisions and the basic principles underlying freedom of religion support the view that
freedom of religion consists of the freedom to undertake practices and harbour beliefs, having a nexus with
religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order
to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular
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practice or belief is required by official religious dogma or is in conformity with the position of religious
officials. Both obligatory as well as voluntary expressions of faith should be protected

- A claimant need not show some sort of objective religious obligation, requirement or precept to invoke
freedom of religion. Such an approach would be inconsistent with the underlying purposes and principles of
the freedom emphasizing personal choice as set out by Dickson C.J. in Big M and Edwards Books.

- That said, while a court is not qualified to rule on the validity or veracity of any given religious practice or
belief, or to choose among various interpretations of belief, it is qualified to inquire into the sincerity of a
claimant’s belief. The court’s role in assessing sincerity is intended only to ensure that a presently asserted
religious belief is in “good faith, neither fictitious nor capricious, and that it is not an artifice”.

- “Because of the vacillating nature of religious belief, a court’s inquiry into sincerity, if anything, should focus
not on past practice or past belief but on a person’s belief at the time of the alleged interference with his or
her religious freedom”

- Expert evidence not required: “Religious belief is intensely personal and can easily vary from one individual
to another. Requiring proof of the established practices of a religion to gauge the sincerity of belief
diminishes the very freedom we seek to protect”

 Summary of TEST: at the first stage of a religious freedom analysis, an individual advancing an issue
premised upon a freedom of religion claim must show the court that:

(1) He or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct,
either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering
a personal connection with the divine or with the subject or object of an individual’s spiritual faith,
irrespective of whether a particular practice or belief is required by official religious dogma or is in
conformity with the position of religious officials or expert testimony; and

(2) He or she is sincere in his or her belief.

- Only then will freedom of religion be triggered.

 Infringement of religious freedom

- No right, including freedom of religion, is absolute

- Section 2(a) of the Canadian Charter prohibits only burdens or impositions on religious practice that are
non-trivial.

- So two questions must be asked: whether an individual’s freedom of religion has been infringed based on
whether the claimant can demonstrate he or she sincerely believes in a practice or belief that has a nexus
with religion; second, whether the impugned conduct/legislation interferes with the individual’s ability to act
in
accordance with that practice or belief in a manner that is non-trivial.

 Note, however, even if the claimant successfully demonstrates non-trivial interference, religious
conduct which would potentially cause harm to or interference with the rights of others would not
automatically be protected.

 Application to the facts

- All of the appellants have successfully implicated freedom of religion: The trial judge’s approach to freedom
of religion was incorrect. First, he chose between two competing rabbinical authorities on a question of
Jewish law. Second, he seems to have based his findings with respect to freedom of religion solely on what he
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perceived to be the objective obligatory requirements of Judaism, thus failing to recognize that freedom of
religion under the Quebec (and the Canadian) Charter does not require a person to prove that his or her
religious practices are supported by any mandatory doctrine of faith. On the issue of sincerity, the trial judge
correctly concluded that the appellant A sincerely believed that he was obliged to set up a succah on his own
property. The appellants K and F submitted expert evidence of their sincere individual belief as to the
inherently personal nature of fulfilling the commandment of dwelling in a succah. Such expert testimony,
although not required, suffices in positively assessing the sincerity and honesty of their belief.

- The infringement of such a belief by restricting the creation of succah’s is non-trivial: It is evident that in
respect of A, the impugned clauses of the declaration of co-ownership interfere with his right in a substantial
way, as a prohibition against setting up his own succah obliterates the substance of his right. In the case of K
and F, they have proven that the alternatives of either imposing on friends and family or celebrating in a
communal succah as proposed by the respondent will subjectively lead to extreme distress and thus
impermissibly detract from the joyous celebration of the holiday.

Per Iacobucci J.

Waiver - Dalphond J. held, and the respondent contends, that the appellants had waived their rights to
freedom of religion — or had implicitly agreed with the terms of the by-laws — when they signed the
declaration of co-ownership, and that the appellants must comply with the impugned provisions of the
Sanctuaire’s by-laws

- Whether one can waive a constitutional right like freedom of religion is a question that is not free from
doubt

- But I need not explore that question in this case. I say that because, even assuming that an individual can
theoretically waive his or her right to freedom of religion, I believe that a waiver argument, or an argument
analogous to waiver, cannot be maintained on the facts of this case for several reasons – in short, they did not
voluntarily, clearly and expressly waiver their rights to freedom of religion; further, it cannot be said that the
claimants had full knowledge that signing the co-ownership agreement would result in the waiver of their
rights.

 HELD: Based on the foregoing analysis, I find that the impugned provisions in the
declaration of co-ownership prohibiting constructions on the appellants’ balconies infringe
the appellants’ freedom of religion under the Quebec Charter. The appellants are thus legally
entitled to set up succahs.

 COMMENT: There was no s 1 analysis, because this case occurred in Quebec. Quebec’s Charter doesn’t
have that section.

_____________________________

2. Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698

 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?

- 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.

- 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.

- 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.

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- 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.

______________________________________________________

3. Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567 (pg. 229)

FACTS: Until May 2003, the Registrar of Motor Vehicles allowed licences without photos to be issued to
persons who objected to having their photograph taken on religious grounds. In 2003 this exemption was
removed via the Operator Licensing and Vehicle Control Regulation, Alta. Reg. 137/2003, made under the
Traffic Safety Act, R.S.A. 2000, c.T-6. According to the government, the universal photo requirement was
adopted to minimize identity theft arising from the use of driver’s licences. To carry out this objective, all
photos taken for driver’s licences were placed in a facial recognition bank.

Hutterites, including the members of the Wilson Colony in southern Alberta, believe that it is contrary to the
Second Commandment to have their photo willingly taken. Following 2003, they proposed that they be
issued licences without photos, marked “Not to be used for identification purposes.” The government did not
accept this proposal, and suggested two alternatives: (1) licences would display a photo but be carried in a
sealed envelope indicating they were the property of Alberta, or (2) licences would be photo-less, but digital
photos of Hutterite drivers would be placed in the facial recognition bank. The government’s proposals were
said to be aimed at “minimiz[ing] the impact of the universal photo requirement on religious beliefs by
removing the need for Colony members to have any direct contact with the photos” (at para. 12), but
members of the Wilson Colony rejected the proposals on the basis that the act of taking the photos was itself
a violation of the Second Commandment

ISSUE: Freedom of religion and the nature of the limit on s 2(a) right; Is the limit justified under s 1?

REASONING:

 Freedom of religion and nature of limit

- The members of the Colony believe that permitting their photo to be taken violates the Second
Commandment

- Given these beliefs, the effect of the universal photo requirement is to place Colony members who wish to
obtain driver’s licences either in the position of violating their religious commitments, or of foregoing driver’s
licences

- An infringement of s. 2(a) of the Charter will be made out where:

(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 or her religious
beliefs in a manner that is more than trivial or insubstantial (i.e. whether the claimants’ religious beliefs or
conduct might reasonably or actually be threatened): Syndicat Northcrest v. Amselem

- The first part was conceded, and the second part, by lower courts, was assumed, so move on to s 1 analysis

Section 1 analysis

 Is the limit prescribed by law?

- Although the limit was set out in a regulation rather than primary legislation, it is still “prescribed by law”

 Is the purpose of the limit pressing and substantial?

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- The purpose of the law is maintaining integrity of the driver’s licensing system in a way that minimizes the
risks of identity theft.

- This is a goal of pressing and substantial importance, capable of justifying limits on rights.

 Proportionality test

(1) Is the limit rationally connected to the purpose? The Province must show that the universal photo
requirement is rationally connected to the goal of preserving the integrity of the driver’s licensing system by
minimizing the risk of identity theft through the illicit use of driver’s licences. The government put forward
evidence to show that the universal photo requirement is more effective in preventing identity theft than a
system that grants exemptions, and so it is rationally connected

(2) Does the limit minimally impair the right? In making this assessment, the courts accord the legislature a
measure of deference. The evidence discloses no alternative measures which would substantially satisfy the
government’s objective while allowing the claimants to avoid being photographed. All other options would
significantly increase the risk of identity theft using driver’s licences. The measure seeks to realize the
legislative goal in a minimally intrusive way

(3) Is the law proportionate in its effect? In other words, when one balances the harm done to the claimants’
religious freedom against the benefits associated with the universal photo requirement for driver’s licences, is
the limit on the right proportionate in effect to the public benefit conferred by the limit?

a. Salutary effects: A couple of salutary effects were raised on evidence, the most important being the
enhancement of the security and integrity of the driver’s licensing scheme. Internal integrity of the system
would be compromised without this requirement. The requirement of a photo on a driver’s licence serves the
additional purpose of assisting police officers in reliably identifying drivers at the roadside.

b. Deleterious effects: Because religion touches so many facets of daily life, and because a host of different
religions with different rites and practices co-exist in our society, it is inevitable that some religious practices
will come into conflict with laws and regulatory systems of general application. The bare assertion by a
claimant that a particular limit curtails his or her religious practice does not, without more, establish the
seriousness of the limit for purposes of the proportionality analysis. We must go further and evaluate the
degree to which the limit actually impacts on the adherent. The Charter guarantees freedom of religion, but
does not indemnify practitioners against all costs incident to the practice of religion.

HERE, is not a case like Edwards Books or Multani where the incidental and unintended effect of the law is
to deprive the adherent of a meaningful choice as to the religious practice. On the evidence before us, that
cost does not rise to the level of depriving the Hutterian claimants of a meaningful choice as to their religious
practice, or adversely impacting on other Charter values. The law does not compel the taking of a photo. It
merely provides that a person who wishes to obtain a driver’s licence must permit a photo to be taken for the
photo identification data bank. Driving automobiles on highways is not a right, but a privilege. While most
adult citizens hold driver’s licences, many do not, for a variety of reasons.

c. Weighing the salutary and deleterious effects: Balancing the salutary and deleterious effects of the law, I
conclude that the impact of the limit on religious practice associated with the universal photo requirement
for obtaining a driver’s licence, is proportionate.

 HELD: I conclude that the limit on the Colony members’ freedom of religion imposed by the universal
photo requirement for holders of driver’s licences has been shown to be justified under s. 1 of the
Charter.

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17. FREEDOM OF EXPRESSION

Constitution Act, 1982, s. 2(b)


 s. 2(b) guarantees everyone the fundamental freedom of thought, belief, opinion and expression,
including freedom of the press and other means of communication

Hogg. Chapter 43. “Expression”


1. Distribution of Powers (pg. 2)
(a) Classification of Laws (pg. 2)
 a law is valid only if it is classified as in relation to a matter coming within a class of subjects
allocated by the constitution to the enacting parliament or legislature
 generally speaking, a law’s impact on civil liberties has not been treated by the courts as the
leading characteristic in determining the law’s classification – the impact on civil liberties has
been treated as an incidental or subordinate feature of the law
(b) Political Speech (pg. 2)
 in the Alberta Press Case (1938), the SCC struck down a statute to publish a government reply to
any criticism of provincial government policies asserting that free political discussion was so
important to the nation as a whole that it could not be regarded as a value that was subordinate
to other legislative objectives nor could it be regarded as a local or private matter (s. 92(16)) or
as a civil right in the province (s. 92(13))
 it followed that it was outside the power of the provinces and within the exclusive power of the
federal parliament
 at least some form of regulation of political speech should be characterized as the denial of
fundamental freedom of national dimensions, which is competent only to the federal parliament,
either under its criminal law power or under its pogg power
(c) Provincial Power (pg. 4)
 a provincial power over speech authorizes the regulation of speech on commercial or local
grounds
 e.g.; the tort of defamation, because of it addresses injury to reputation which supplies a
dominant tortuous aspect to the law, is within the provincial power under s. 92(13)
 e.g.; advertising is within provincial jurisdiction because it is part of the regulation of
business and consumer protection within provincial power under s. 92(13)
 previous cases that ceded the powers to the provinces would now have to survive the charter
review based on the freedom of expression and assembly
 however, the previous cases establish that an extensive provincial power to regulate speech
or assembly in local parks and streets, and to regulate speech in the media that comes within
provincial jurisdiction
 that power does not extend to the denial of political speech
(d) Federal Power (pg. 5)
 the federal parliament has the power to regulate political speech because, as discussed in the
Alberta Press Case (1938), free political discussion was so important to the nation as a whole that
it could not be regarded as a value that was subordinate to other legislative objectives nor could
it be regarded as a local or private matter (s. 92(16)) or as a civil right in the province (s.
92(13))
 the federal parliament also has the power, by a prohibition coupled with a sanction, to make
particular kinds of speech criminal
 e.g.; obscenity (R. v. Butler (1992)), hate propaganda (R. v. Keegstra (1990))
 the federal parliament also has the power to regulate speech in the media that comes within
federal jurisdiction, namely, radio and television
 Capital Cities Communications v. CRTC (1978) upheld federal content regulation of television
2. Section 2(b) of the Charter (pg. 6)
 s. 2(b) guarantees everyone the fundamental freedom of thought, belief, opinion and expression,
including freedom of the press and other means of communication
 s. 2(b), like other charter rights, is subject to s. 1 – a law that limits freedom of expression will be
valid under s. 1 if it comes within the phrase such reasonable limits prescribed by law that are
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 in most freedom of expression cases, it is easy to decide that, yes, the impugned law does limit s.
2(b) – this satisfies the first step of a s. 1 judicial review, wherein the question of whether the law
has the purpose or effect of limiting a guaranteed right
 the constitutionality of the law will turn on the second step of a s. 1 judicial review, in that having
limited the guaranteed right, does the law satisfy the standards of justification under s. 1 (i.e.;
does it come within the phrase such reasonable limits prescribed by law that are demonstrably
justified in a free and democratic society)
3. Comparison with the First Amendment (pg. 7)
 the first amendment uses the word “speech” – s. 2(b) uses the phrase “thought, belief, opinion, and
expression”
 since unexpressed ideas cannot be suppressed, the word expression (which is broader than
speech) is critical for s. 2(b)
 the first amendment is framed in absolute language, and the American Bill of Rights contains no
limitation clause like s. 1, American courts have had difficulty in supplying a principled justification
for upholding laws that restrict speech
4. Reasons for Protecting Expression (pg. 7)
 freedom of expression plays a crucial role as an instrument of democratic government
 the right of free expression of opinion an of criticism were held to be essential to the working of a
parliamentary democracy (Switzman v. Elbling (1957))
 Canadian judges have always placed a high value on freedom of expression as an element of
parliamentary democracy and have sought to protect it
 it also plays a role as an instrument of truth – it is only by the collision of adverse options that truth is
discovered or confirmed
 it also plays a role as an instrument of personal fulfilment – expression is protected not just to create
a more perfect polity, and not just to discover the truth, but to enlarge the prospects for individual
self-fulfilment, or to allow personal growth and self-realization – as such, expression, in these broad
terms, covers not just speech, but art, music, dance, etc. as well
 in R. v. Sharpe (2001), although the court acknowledged that child pornography, though not
making a contribution to the democratic government, nor to the search of truth, may play a role
as an instrument of personal fulfilment, and self-actualization. The Court was unanimous that the
criminal code justification under s. 1 of the charter
 Irwin Toy v. Quebec (1989) embraced all three reasons for protecting freedom of expression
5. Meaning of Expression (pg. 10)
(a) Definition of Expression (pg. 10)
 activity is expressive if it attempts to convey meaning – this allows for the third reason for
protecting freedom of expression (realization of individual self-fulfillment)
 as such, since most activity combines expressive and physical elements, what is excluded is that
which is purely physical and does not convey or attempt to convey meaning, that means that
there is not much that is not expression under the court’s definition
 obviously, all forms of art are sufficiently communicative to be protected:
 e.g.; novels, plays, films, paintings, dances, music
 a speaker’s choice of language is protected (and so a requirement that commercial signs be in
French only is a violation of s. 2(b)
(b) Criminal Expression (pg. 11)
 so long as an activity is communicative, and falls short of direct infliction of violence, it is
protected by s. 2(b)
 in the Prostitution Reference (1990), the court held that communicating for the purpose of
prostitution was protected expression under s. 2(b) – however, the offence thereof under the
criminal code was upheld (i.e.; as a limit on that s. 2(b) right) under s. 1
(c) Violence (pg. 11)
 expressive activity that takes the form of violence is not protected by s. 2(b)
 threats of violence were also unprotected initially – however, in R. v. Keegstra, the court
found that a communication could only be classified as a threat of violence by reference to its
content, and that there are no content related restrictions on the s. 2(b) right
(d) Content Neutrality (pg. 12)
 the content of a statement cannot deprive it of the protection accorded by s. 2(b), no matter how
offensive it may be (R. v. Keegstra (1990))
 in that case, however, the criminal code offence being charged was upheld under s. 1 of the
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Charter
 the court has also said that s. 2(b)’s protection extends to deliberate falsehoods as well, because
the truth or falsity of a statement can be determined only in reference to its content, and so the
principle of content-neutrality comes into play (R. v. Zundel (1992))
 R. v. Lucas (1998) confirmed that deliberate falsehoods were protected by s. 2(b) – however,
the court upheld the prohibition of the criminal code offence of defamatory libel under s. 1 as
a justifiable means of protecting reputation from false attack
 although the false misleading and deceptive advertising of tobacco products was expression,
and thus protected by s. 2(b) in Canada v. JTI-Macdonald Corp. (2007), the prohibition
against false advertising of products that were harmful to health was justified under s. 1
 content neutrality, therefore means that s. 2(b) extends to much activity that is not worthy of
constitutional protection – however, the evaluation of the worthiness of the expression is relevant
only to the s. 1 inquiry whereby particular kinds of expression regarded by the courts as of little
value makes the objective of a limiting law easier to justify and invites more relaxed standards of
proportionality
6. Ways of Limiting Expression (pg. 14)
(a) Prior Restrain (pg. 14)
 prior restriction on publication is regarded as the most severe since expression that is never
published cannot contribute in any way to the democratic process, to the marketplace of ideas, or
to personal fulfilment
 prior restraint is a limit on freedom of expression whereby a law that prohibits the publication of
particular material either absolutely or under a requirement of prior approval by a censor
 in the US, prior restraints tend to be struck down; in Canada, the general standards of s. 1
justification are applicable to prior restraint as well as to other limits on expression, and a
number of prior restraints have been upheld under s. 1
(b) Border Control (pg. 15)
 prior restraint is placed on the importation of pornographic materials whereby they can be
stopped and confiscated at the border (with the customs officers acting as censors)
 the Customs Tariff Act used to prohibit the importation of “immoral or indecent” books and
magazines – this was struck down as being too vague to serve as a reasonable limit under s. 1,
and replaced with the definition of “obscene” in the criminal code
 R. v. Butler (1992) the SCC held that the criminal offence (as characterized by the definition
“obscene”) was a valid limitation of freedom of expression under s. 1
 in Little Sisters Book and Art Emporium v. Canada (2000), the word ‘obscene’ was challenged
on the grounds that customs officers were not given a structured definition so as to avoid
arbitrarily and disproportionately withholding homosexual literature under their review
procedures
 the court acknowledged that the implementation of the prohibition by the customs
officials had been unconstitutionally discriminatory against homosexual literature, but
that it was not due to an inherent flaw in the definition of obscenity
 as such, the legislation was upheld
(c) Penal Prohibition (pg. 16)
 to the extent that the prospect of punishment deters the uttering of the prohibited expression, a
legal prohibition operates in the same way as a prior restraint
(d) Civil Prohibition (pg. 17)
 breach of a civil obligation does not attract a penal sanction, such as a fine or imprisonment – it
entitles the aggrieved party to recover damages to obtain some other civil remedy (such as an
injunction)
 where a civil obligation is created by the common law (e.g.; law of contract), there is usually no
charter remedy as the charter does not apply to the rules of common law that govern the
relations between private parties
 where the civil prohibition is created by statute, the charter will apply, and the prohibition will
offend s. 2(b)
(e) Forced Expression (pg. 17)
 occasionally, a person is forced by law to make a statement
 this has been held to be a breach of s. 2(b) on the basis that freedom of expression also entails
the right to say nothing and also the right not to say certain things (R.J.R.-MacDonald v. Canada
(1995)) – however, the offending law could still be saved by a s. 1 review
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(f) Language Requirement (pg. 19)


 in Ford v. Quebec (1988), the SCC rejected the idea that language was merely a means or medium
of expression; instead, the court said that freedom of expression included the freedom to express
oneself in the language of one’s choice
 so in this case, the requirement of the exclusive use of French (with a prohibition of the use of
any other language) was unconstitutional
(g) Search of Press Premises (pg. 20)
 pg. 20
(g1) Disclosure of Journalists’ Sources (pg. 20)
 journalists’ sources are generally begotten through promises that their identity will not be
revealed; the SC has held that search warrants are valid and have to be obeyed even in the face of
disclosing the identity of the confidential source
 it was acknowledged that the freedom to publish the news, which was guaranteed by s. 2(b)
involved the freedom to gather the news and that an important element thereof was the ability to
make use of confidential sources, but that, however, there could not be a sweeping absolute
protection of sources under s. 2(b)
(h) Time, Manner, and Place (pg. 20.1)
 regulation of the time, manner, or place is the least severe form of restriction on expression
 e.g.; use of cartoons in advertising directed at children
 these laws restrict expression and are, as such, in violation of s. 2(b) – but because they do not
regulate the content of the expression, a court would be likely to uphold them under s. 1
7. Commercial Expression (pg. 22)
(a) Protection of Commercial Expression (pg. 22)
 commercial expression is expression designed to promote the sale of goods and services
 the most obvious example is advertising
 there is a public need to forbid false or misleading claims, to require warnings of danger and
disclosure of other matters, and as such, commercial expression is subject to regulation
 commercial expression, under a guarantee of freedom of expression (in Canada – or speech in the
US) needs to be protected because:
 it actually falls within the meaning of expression (or speech) and makes a contribution to the
marketplace of ideas that is fostered by the constitutional guarantee
 it isn’t, per se, necessarily distinguishable from other kinds of speech
 the balancing of the value of free expression against the value of consumer protection has to take
place within s. 1 of the charter
(b) Language Requirements (pg. 22)
 commercial expression is protected by the guarantee of freedom of expression in s. 2(b)
 in Ford v. Quebec (1988), the court held that a Quebec law requiring commercial signs to be in
French only was unconstitutional
 by prohibiting signs in English, the law could not be justified under s. 1 because, although it
pursued an important purpose (the protection of the French language), it impaired the rights
of the English-speakers more than was necessary to accomplish its purpose
 a requirement that French be predominant would have been a reasonable limit under s.
1, but a complete prohibition of English went too far
(c) Advertising Restrictions (pg. 23)
 in Irwin Toy v. Quebec (1989), the court upheld a Quebec law that prohibited all commercial
advertising directed at children under 13
 the court said that advertising was constitutionally protected by s. 2(b), however with
regards to whether the law could be justified as a reasonable limit under s. 1, the court found
that the protection of a particularly vulnerable group (in this case, young children) was a
sufficiently important purpose for the limitation thereupon
 the ban was not an absolute one – products such as toys and cereals could still be
advertised, provided they did not use cartoons and other techniques directed specifically
at children
(d) Signs (pg. 25)
 commercial signs are protected by s. 2(b)
 the regulation of the language of commercial signs was struck down in Ford v. Quebec (1988)
(e) Prostitution (pg. 26)

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 prostitution is lawful in Canada – however, it is an offence to communicate in a public place for


the purpose of engaging in prostitution
 the SCC, in the Prostitution Reference (1990), held that this type of commercial speech is
protected by s. 2(b), but upheld the provision under s. 1 because the purpose of eradicating the
nuisance of street-solicitation justified the limit on such an expression
8. Picketing (pg. 26.1)
 picketing is the activity of members of a trade union on strike
 they often assemble outside a workplace and carry signs
 the purpose of picketing is to advise the public that the picketers are on strike, to dissuade strike-
breakers from entering the workplace, and to encourage consumers to boycott the goods or services
produced by the firm against whom the workers are striking
 although it is a form of industrial action intended to bring economic pressure to bear on the employer
against whom the workers are striking, there is also a communicative element to a picket line, and as
such, it constitutes an expression within the meaning of s. 2(b)
 RWDSU v. Dolphin Delivery (1986) and the Vancouver Courthouse case (1988) make clear that
picketing is protected by s. 2(b) – however, the readiness with which the courts are prepared to
accept the s. 1 justification in both cases indicates that laws or court orders limiting picketing in
order to avoid the spread of an industrial dispute, or to facilitate access to a public facility, or to
reduce the risk of violent confrontations, or for some other purposes, are likely to be upheld under
s. 1
9. Hate Propaganda (pg. 29)
 hate propaganda is material that promotes hatred against minority groups
 it is prohibited by the criminal code – it is an offence to wilfully promote hatred against any section of
the public distinguished by colour, race, religion, or ethnic origin
 therefore, the criminal code provides a limit on this type of expression – the purpose of the
limit/prohibition on hate propaganda is to promote the value of equality
 it has been suggested that the scope of s. 2(b) should be narrowed to make way for a ban on
expression that has as its purpose the advancement of equality (which is guaranteed by s. 15);
this would support a ban on hate propaganda without having to take recourse to s. 1
10. Defamation (pg. 31)
 the tort of defamation provides a civil remedy for a person whose reputation has been damaged by
false statements – although, it should be noted that under the content-neutral principle, the
defendant’s freedom of expression is abridged by this prohibition
 in Hill v. Church of Scientology (1995), the court acknowledged that freedom of expression is
constitutionally protected by s. 2(b), but that false and injurious statements were outside the core
values of that protection and were not deserving of much protection
 reputation, on the other hand, although not explicitly protected by the charter, reflected the
innate dignity of the individual and was related to the right of privacy which has been accorded
constitutional protection
 weighing these two factors, the court concluded that the common law of defamation was not
unduly restrictive or inhibiting and required no significant modification to conform to charter
values
 in Grant v. Torstar Corp. (2009), the SCC, explicitly acknowledging the influence of developments in
other common law countries (and especially the UK), held that common law of defamation should be
modified to recognize a defence of responsible communication on matters of public interest
 the common law of defamation has been more lenient with a statement of opinion than statement of
facts – the defence of fair comment is available to the publisher of an opinion so long as the option is:
based on fact, related to a matter of public interest; and one that an honest (though not necessarily
reasonable) person could hold
 however, in Neron v. Chambre des notaires du Quebec (2004), the court held that truth and public
interest are merely factors to consider in the overall contextual analysis of fault, and that they
were not the determinative factors – the determinative factors were the breach of professional
journalistic standards
 this, no doubt, impacts the freedom of the press
11. Pornography (pg. 38)
 attempts to ban the description/depiction of sexual activity has traditionally been justified as
protecting public morality – but this has also been a serious threat to freedom of expression
 the works of many novelists have also been banned due to such attempts
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 some justify the ban on pornography not on the basis of explicit portrayal of sex or the flouting of
conventional morality, but rather the reinforcement of discrimination against women
 the SC of the US has distinguished between pornography and obscenity, holding the latter is not
protected by the first amendment’s guarantee of freedom of speech
 the SCC has held that pornography, including obscenity, is protected expression – this is because
pornography and/or obscenity, howsoever defined, can only be identified by reference to the content
of the material, and there are no content-based restrictions on s. 2(b)
 in R. v. Butler (1992) the accused operated a sex shop and was found guilty of various charges of
selling obscene material and possessing obscene material for sale; he challenged the constitutionality
of these prohibitions of obscenity
 the SCC held that the prohibition of obscenity offended s. 2(b) as its purpose and effect was to
restrict the communication of certain types of materials based on their content and there are no
content based restrictions on s. 2(b)
 however, the court held that the prohibition could be upheld under s. 1
 the court said that materials depicting “undue” exploitation of sex (i.e.; material that:
portrayed explicit sex with violence; or portrayed explicit sex without violence, but in a
degrading or dehumanizing manner) were intolerable to the Canadian community not
because they offended against morals but because they were perceived by public opinion to
be harmful to society, particularly to women
 these findings could not overcome the rule that all expressive activity, no matter how
repulsive its content, was protected by s. 2(b); however, the findings did provide the basis
to allow the court to uphold the law under s. 1
 the avoidance of harm to society is a similar objective to the prevention of the influence of
hate propaganda that has been accepted as a legitimate reason for the limitation of
freedom of expression (in R. v. Keegstra)
 the prohibition also satisfies the proportionality tests stipulated by Oakes in that it did
not extend beyond material that created a risk of harm to society, and in particular did
not prohibit sexually explicit material that was neither accompanied by violence nor
degrading or dehumanizing, and nor did it prohibit material that was required by the
internal necessities of serious artistic work, nor did it touch the private possession or
viewing of the obscene materials
 therefore, the prohibition was no wider than was necessary to accomplish the
legislative purpose of preventing harm to society
 so, the court concluded that the prohibition of obscenity was justified under s. 1
 the criminal code’s definition of obscenity is also used as a standard for border control of
pornography – the federal Customs Tariff Act prohibits the importation of books, magazines, and
pictures that are obscene under the criminal code definition
 in Little Sisters Book and Art Emporium v. Canada (2000), the bookstore challenged the validity
of the prohibition on a number of grounds including a challenge against Butler that it was
inherently discriminatory against gay and lesbian tastes
 the court decided that Butler was not discriminatory against the gay and lesbian community as
the standards of obscenity in it could be applied to heterosexual as well as homosexual content
 R. v. Sharpe (2001), challenged the criminal code offence of possession of child pornography
 the SCC held that the offence was a limit on the freedom of expression under s. 2(b)
 whether it could be justified under s. 1 depended on whether the mere possession of child
pornography was harmful to children
 the court held that possession contributed to the market for child pornography, and the
market caused the production thereof, which in turn exploited children
 as such, there was a reasoned apprehension of harm, and that was enough (as per Butler)
 once the harm to children was inferred, the Oakes test fell into place and the prohibition of
possession of child pornography was upheld under s. 1
12. Access to Public Property (pg. 44)
 generally with respect to private property, both common law and civil law dictate that the owner has
the power to determine who uses the property and for what – any prohibitions set aside by the owner
would not be in violation of s. 2(b) because the charter does not apply to private action, and so s.
2(b) does not confer any right to use private property as a forum of expression

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 with respect to public property, since the charter applies to governmental action, s. 2(b) is
potentially applicable – the government does not possess the absolute power of a private owner to
control access to and use of public property
 in Committee for the Commonwealth of Canada v. Canada (1991), the SCC held that the prohibition
on the distribution of political leaflets in the Crown-owned Dorval Airport in Montreal was
unconstitutional as s. 2(b) conferred a right to use public property for expression purposes
 in Montreal v. 2952-1366 Quebec (2005), the court combined the different elements of the opinion
and decision in the Commonwealth case and reformulated the test for the application of s. 2(b) on
public property:
 the historical function of the place, the actual function of the place, and whether other aspects of
the place suggest that expression within it would undermine the values underlying free
expression need to be considered
13. Access to Courts (pg. 49)
(a) Fair Trial Concerns (pg. 49)
 s. 2(b) expressly provides that freedom of expression includes freedom of press and other media –
however, this occasionally comes into conflict with the right of persons accused of crime to
receive a fair trial
 pre-trial publicity may bias potential jurors or judges
 it may also damage the reputations of someone who is subsequently exonerated of the
charges laid against them
(b) Restrictions on Reporting (pg. 49)
 freedom of press includes the freedom to publish reports of proceedings in court
 in Edmonton Journal v. Alberta (1989) and Canadian Newspapers Co. v. Canada (1988), the press
were not denied access to the courtrooms, however, they were prohibited from reporting part of
the proceedings
(c) Restrictions on Access (pg. 51)
 freedom of the press also includes the right of the press and the public to be present in court
 this right was not affected in the Edmonton Journal and Canadian Newspaper cases, where the
press were not denied access to the courtrooms; they were simply prohibited from reporting part
of the proceedings
 the criminal code provides that proceedings against an accused are to be held in open court, but
the trial judge has the power to exclude all or any members of the public from the court room for
all or part of the proceedings if the judge forms the opinion that access should be restricted in the
interest of the proper administration of justice
 in CBC v. New Brunswick (1996), the court held that the freedom of the press included the right of
the media to have access to the court proceedings, and so any power to exclude the media from
the court room was a breach of s. 2(b); however, the provision is justifiable under s. 1 when
openness would be unfavourable to the proper administration of justice
 the same has been held for public access to the courts during pre-trial proceedings ( Southam
v. Coulter (1990))
 the open court principle is guaranteed by s. 2(b); it can only be limited under s. 1 if the
standards of justification are satisfied as established in Dagenais v. CBC (1994) and R. v. Mentuck
(2001):
 that the order is necessary in order to prevent a serious risk to the proper administration of
justice because reasonable alternative measures will not prevent the risk
 the salutary effects of the order outweigh the deleterious effects on the rights and interests of
the parties and the public
14. Access to Legislative Assembly (pg. 54)
 in New Brunswick Broadcasting Co. v. Nova Scotia (1993), the SCC upheld a ban on television
cameras in the legislative chamber reasoning that parliamentary privilege included the power of a
legislative assembly to exclude strangers from the legislative chamber, and that power was not
subject to the charter of rights
15. Contempt of Court (pg. 54)
 a contempt of court is an act that offends against the administration of justice – a failure to obey a
court order is the most common form thereof
 when a failure to obey a court order has no significance beyond the immediate parties to the order, it
is a civil contempt and if it was based on the common law, the charter has no application thereto

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 a criminal contempt is one where the offence to the administration of justice has a public significance
that goes beyond the immediate parties
 a direct criminal contempt is a contempt in the face of the court – words or acts inside the
courtroom that are intended to disrupt the proceedings
 an indirect contempt is a contempt not in the face of the court – words or acts outside the
courtroom that are intended to obstruct the administration of justice
 although criminal contempt is a matter of common law, and the charter does not generally apply to
the common law, the public character of criminal contempt makes the charter applicable
 In R. v, Kopyto (1987), the Ontario Court of Appeal held that, criticism of the court made after a
decision has been rendered has been held to be constitutionally protected expression
16. Public Service (pg. 56)
 public servants in all jurisdictions in Canada are subject to restrictions on their partisan political
activities
 in Osborne v. Canada (1991), federal public servants attacked provisions in the federal public service
employment act that prevented them from engaging in work for or against a candidate for election
to parliament or for or against a federal political party
 the SCC held that the Act limited freedom of expression under s. 2(b) and that it was not justified
under s. 1 as the Act was over inclusive as to the range of activity that was prohibited and the
range of public servants who were covered and a narrower prohibition would have been
sufficient to protect the value of neutrality with less impact on freedom of expression
17. Mandatory Letters of Reference (pg. 57)
 when employers are ordered to give a letter of reference to an employee who has been unjustly
dismissed, it is a breach of the employer’s charter rights to freedom of expression
 where the order directs the employer to provide an opinion about the employee that the employer
does not truly hold, then the breach of the charter right cannot be justified under s. 1
 where the stipulated letter of reference contains only objective facts that are not in dispute, then
the order can be justified under s. 1
18. Election Expenditures (pg. 57)
 restrictions on election expenditures are indirect restrictions on political speech, because
expenditures are required to purchase time or space in the media for campaign messages
 however, restrictions on election expenditures are necessary to reduce the risk that wealthy or well-
financed candidates will have an unfair advantage by reason of their greater access to funds and thus
greater access to the media
 the federal Canada Elections Act imposes spending limits on parties and candidates during an
election – as well as on third-party spending
 in Harper v. Canada (2004), the SCC accepted that the objective of preventing the voices of the
wealthy from drowning out those of others was sufficiently important to justify limiting the
freedom of expression
19. Voting (pg. 61)
 the right to vote is guaranteed by s. 3 of the charter – but the right is limited to elections of the
members of the federal house of commons and the provincial legislative assemblies
 in Haig v. Canada (1993), the SCC agreed that the casting of a ballot in a referendum was a means of
expression – however that s. 2(b) did not impose on the federal (or provincial) government a duty to
consult its citizens by referendum, or to consult every single citizen in the case of a referendum
20. Access to Government (pg. 62)
 in Native Women’s Association of Canada v. Canada (1994), the court held that the principle was
established in Haig that generally the government is under no obligation to fund or provide a specific
platform of expression to an individual or group
 and although the government could not provide access or funding in a fashion that amounted to
discrimination under s. 15, s. 15 should not be interpreted as constraining the government in its
choice of advisers or requiring the government to listen to every point of view
21. Access to Government Documents (pg. 63)
 the various Canadian governments have enacted freedom of information legislation to provide access
to the public to documents held by the government
 the various Acts allow the public access to certain classes of documents and exempts other classes of
documents from the right of access
 in Ontario v. Criminal Lawyers’ Association (2010) the court held that although s. 2(b) guaranteed
freedom of expression, access to information is a derivative right which may arise where it is
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necessary precondition to meaningful expression on the functioning of government – where it can be


shown that without the desired access meaningful public discussion and criticism on matters of
public interest would be substantially impeded, then there will be prima facie case for access to
records under s. 2(b)
 that is, access to documents in government hands is constitutionally protected only where it is
shown to be a necessary precondition of meaningful expression, does not encroach on protected
privileges, and is compatible with the function of the institution concerned

Montreal (City) v. 2952-1366 Quebec Inc., [2005] 3 S.C.R. 141 (pg. 250)
Facts:
 a strip club had set up a loudspeaker at its street entrance which it used to broadcast the music and
commentary that accompanied the show inside
 the club was charged under a city by-law that prohibited noise produced by sound equipment that could
be heard outside a building – although there were no stipulations as to the particular level of noise or any
disturbance of neighbours or passers-by, the court interpreted the by-law as applying to noise that
adversely affects the enjoyment of the environment
Issues:
 was the by-law contrary to s. 2(b)
Held:
 the broadcast conveyed a message about the show that was going on inside the club – that constituted
expression
 although the message originated inside the private premises where s. 2(b) would not apply, it was the
transmission into the public street (i.e.; public property) and that was prohibited by the by law
 the court combined the different elements of the opinion and decision in the Commonwealth case and
reformulated the test for the application of s. 2(b) on public property
 the historical function of the place, the actual function of the place, and whether other aspects of the
place suggest that expression within it would undermine the values underlying free expression need
to be considered
 the club’s broadcast into the street was protected under s. 2(b) – however, 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.

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18. LIFE, LIBERTY AND SECURITY OF THE PERSON


Constitution Act, 1982, s. 7
 s. 7: everyone has the right to life, liberty, and security of the person, and the right not to be deprived
thereof except in accordance with the principles of fundamental justice

Hogg. Chapter 47. “Fundamental Justice”


1. Distribution of Powers Over Legal Rights (pg. 2)
 s. 7 to 14 of the charter are grouped under the heading legal rights
 they generally include the rights of persons within the system of criminal justice
 the distribution of powers between the federal and provincial government depends on how the law is
characterized – if the law is in relation to criminal law or criminal procedure, it will be within federal
power under s. 91(27)
 provincial authority over the administration of justice in the province (s. 92(14)) includes the
constitution of criminal and civil courts and civil procedure, and extends to some aspects of the
investigation and prosecution of crime
2. Section 7 of the Charter (pg. 2)
 s. 7 protects the right of everyone to life, liberty and security of the person, and imposes the
requirement that any deprivation be in accordance with the principles of fundamental justice
 it can be said that s. 7 not only confers the right to life, liberty, and security of the person, but also
that the right not to be deprived thereof
 however, the cases generally assume that the single right interpretation is correct one, so that
there is no breach of s. 7. That is, the right not to be deprived of life, liberty or security of a person
except in accordance with the principles of fundamental justice.
 s. 7 is said to be a narrower amalgamation of two sections from the Canadian Bill of Rights:
 s. 1(a) (the right of the individual to life, liberty, and security of the person and enjoyment of
property, and the right not to be deprived thereof except by due process of law)
 s. 2(e) (no law of Canada is to be construed or applied so as to deprive a person of the right to a
fair hearing in accordance with the principles of fundamental justice for the determination of his
rights and obligations)
 furthermore, the Canadian Bill of Rights only applies to federal laws
3. Application of s. 1 (pg. 4)
 s. 7 makes clear that a law can deprive a person of life, liberty, or security of the person if the law
conforms to the principles of fundamental justice
 it has been held that a violation of fundamental justice could never be justified under s. 1
 however, for the most part, the court has routinely moved on to the issue of s. 1 justification
before finding a breach of s. 7
4. Benefit of s. 7 (pg. 5)
(a) Corporations (pg. 5)
 s. 7 is applicable to “everyone”, which generally includes corporations as well as individuals –
however the SCC has held that in the context of s. 7, everyone does not include a corporation as
an artificial person is incapable of possession life, liberty, or security of the person, because these
are attributes of a natural person
 however, it is not the case that a corporation can never invoke s. 7 – when the corporation is a
defendant to a prosecution, it can defend the charge on the basis of nullity (i.e.; that the law
under which the charge was laid would be a violation of s. 7 in its application to an individual
 the court rejected the argument that a law could be unconstitutional for individuals, but
constitutional for corporations (R. v. Wholesale Travel Group (1991))

(b) Immigrants (pg. 5)


 everyone in s. 7 includes illegal immigrants to Canada
 in Singh v. Minister of Employment and Immigration (1985), the court said that s. 7 rights could
be asserted by every human being who is physically present in Canada and by virtue of such
presence amenable to Canadian law
(c) Foetus (pg. 6)
 abortion is sometimes characterized as implicating a right to life, meaning a right possessed by a
foetus, however that characterization does not work in this context
 everyone in s. 7 does not include a foetus
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 s. 7 has actually been employed to strike down restrictions on abortion reasoning that such
restrictions deprived the mother of her right to liberty or security of the person and does not
comply with the principles of fundamental justice (R. v. Morgentaler (No. 2) (1988))
5. Burden of s. 7 (pg. 6)
 s. 7, like all other charter rights, applies only to governmental action as per s. 32 of the charter
6. Life (pg. 7)
 s. 7 protects life, liberty, and security of the person
 so far as life is concerned, the section has little work to do because governmental action rarely causes
death
 the SCC has held that excessive waiting times for treatment in the public health care system increased
the risk of death, and were a violation of the right to life (as well as security of the person) (Chaoulli v.
Quebec (2005))
 abortion is sometimes characterized as implicating a right to life, meaning a right possessed by a
foetus, however that characterization does not work in this context
 the s. 7 right is possessed by everyone, and everyone does not include a foetus
 s. 7 has actually been employed to strike down restrictions on abortion reasoning that such
restrictions deprived the mother of her right to liberty or security of the person and does not
comply with the principles of fundamental justice (R. v. Morgentaler (No. 2) (1988))
7. Liberty (pg. 7)
(a) Physical Liberty (pg. 7)
 s. 7 protects life, liberty and security of the person
 liberty includes freedom from physical restraint
 any law that imposes the penalty of imprisonment, whether mandatory or discretionary, is by
virtue of that penalty a deprivation of liberty and must conform to the principles of
fundamental justice
 statutory duties to submit to fingerprinting (R. v. Beare (1988)), to produce documents
(Thomson Newspapers v. Canada (1990)), to give oral testimony (Stelco v. Canada (1990)),
and not to loiter in or near school grounds, playgrounds, public parks, and bathing areas (R.
v. Heywood (1994)) are also deprivations of liberty attracting the rules of fundamental
justice
 the deportation of a non-citizen is not a deprivation of liberty attracting the rules of fundamental
justice because non-citizens have no right to enter or remain in Canada
 a law that imposes only the penalty of a fine is not a deprivation of liberty, and need not conform
to the principles of fundamental justice
 in Blencoe v. British Columbia (2000), the SCC asserted that liberty in s. 7 is no longer restricted
to mere freedom from physical restraint; it applies whenever the law prevents a person from
making fundamental personal choices

(b) Economic Liberty (pg. 10)


 the framers of Canada’s Charter of Rights (taking note of the unhappy experience of the US
during the Lochner era) deliberately omitted any reference to property in s. 7, and they also
omitted any guarantee of the obligation of contracts
 as such, s. 7 interprets liberty to not include property, to not include freedom of contract, and
therefore to not include economic liberty
 further, s. 7 is part of rights that are envisioned as legal rights, mainly geared towards the rights
of individuals in the criminal justice system
 s. 7 is concerned with those restrictions that occur as a result of an individual’s interaction
with the justice system and its administration, thereby excluding economic liberty from s. 7
 the SCC has held that s. 7 does not apply to corporations because liberty does not include
corporate activity
(c) Political Liberty (pg. 11)
 liberty does not include freedom of conscience and religion, freedom of expression, freedom of
assembly, freedom of association, the right to vote and be a candidate for election, or the right to
travel
 these rights are all guaranteed elsewhere in the charter, and should be excluded from s. 7
8. Security of the Person (pg. 12)
 s. 7 protects life, liberty, and security of the person
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 in Canadian Foundation for Children, Youth and the Law v. Canada (2004), the court found that the
provision of the criminal code that provides a defence to a charge of assault for teachers and parents
who use ‘reasonable’ force by way of correction against children under their care adversely affected
the security of the person of those children
 however, the court upheld the provision on the ground that there was no breach of the principles
of fundamental justice
 in R. v. Morgentaler (No. 2) (1988), the SCC held that the criminal code’s restrictions on abortion,
which required that an abortion be approved by a committee, were unconstitutional as the risk that
was caused by the law was a deprivation of security of the person
 the breach of fundamental justice consisted in the unnecessarily restrictive procedural
requirements for a therapeutic abortion and in the deprivation of the woman’s freedom of
conscience
 the judges also found that the loss of her control over the termination of the pregnancy was
also breached in such cases
 as such, security of the person would include some requirement of personal autonomy
 the extension of security of the person to include control over one’s body was confirmed in Rodriguez
v. British Columbia (1993) – a terminally ill plaintiff challenged the constitutionality of the criminal
code offence of assisting a person to commit suicide
 the law deprived a disabled person the ability to be able to commit suicide (which, in and of itself,
was not an offence)
 the SCC held that the removal from the plaintiff of an aspect of the control over her body was a
deprivation of security of the person under s. 7 – however, the challenge was not successful
because the majority held that the law did not offend the principles of fundamental justice
 the protection of psychological integrity was relied upon in Blencoe v. British Columbia (2000)
wherein the court held that state-induced psychological stress would be a breach of security of the
person – therefore, there may be a constitutional remedy for administrative delay if the person
involved finds it sufficiently distressing

9. Property (pg. 17)


 the due process clauses in the fifth and fourteenth amendments of the Constitution of the US protect
life, liberty or property
 the omission of property from s. 7 was deliberate – and it reduces the scope of s. 7
 as such, s. 7 affords no guarantee of compensation or even of a fair procedure for the taking of
property by government
 the omission of property rights from s. 7 also ensures a continuing role for the Canadian Bill of Rights
which continues to apply to federal (but not provincial) laws
 civil litigations is usually about money or property or other purely economic interests, and s. 7 does
not apply to this kind of litigation
10. Fundamental Justice (pg. 19)
(a) Procedure and Substance (pg. 19)
 a deprivation of life, liberty, or security of the person is a breach of s. 7 only if the deprivation is
not in accordance with the principles of fundamental justice
 the legislative history of s. 7 makes clear that the framers thought that fundamental justice
meant natural justice, and were anxious to avoid judicial review that went beyond issues of
procedure – furthermore, that the phrase due process was omitted from s. 7 deliberately made
clear that s. 7 did not give rise to the doctrine of substantive due process
 the terms fundamental justice replaced due process
 in B.C. Motor Vehicle Reference (1985), the SCC held that fundamental justice covered substantive
as well as procedural justice
 because a provision of the province’s Motor Vehicle Act created an absolute liability whether
or not the defendant knew of the prohibition or suspension, the court held it was a breach of
fundamental justice to impose a term of imprisonment for an offence that lacked the element
of mens rea (guilty mind)
 the absence of mens rea created a substantive injustice – s. 7 prohibited substantive as well
as procedural injustice
 the court gave three reasons for extending fundamental justice beyond procedure:
 the words fundamental justice are literally broader in scope than other formulations that
could have been used (e.g.; natural justice)
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 the expansion of the concept of fundamental justice has the effect of expanding the
protection of life, liberty, and security of the person
 (and although this last reason is controversial and debatable) s. 7 is a kind of general
residuary clause for all the legal rights of the charter (i.e.; s. 8 to 14) which are merely
illustrative of deprivations of fundamental justice that can just as easily be caught by s. 7
(b) Definition of Fundamental Justice (pg. 23)
 in B.C. Motor Vehicle Reference (1985), the court asserted that the principles of fundamental
justice are to be found in the basic tenets of the legal system
 the court admitted that there cannot be any exhaustive of simple definition of fundamental
justice, but that it will take on concrete meaning as the courts address alleged violations of s.
7
 subsequent cases have shown that there are disagreements and inconsistencies as to what the
basic tenets of the legal systems are, or even from whence they may be derived
 whenever a law deprives an individual of life, liberty, or security of the person, the courts must
determine whether the parliament or legislature struck the right balance between the competing
values that the legislators had sought to reconcile (Cunningham v. Canada (1993))
 in Rodriguez v. British Columbia (1993), the court asserted that the principles of fundamental
justice must be fundamental in the sense that they would have general acceptance among
reasonable people
 i.e.; a law would violate fundamental justice if the law was arbitrary or unfair
 in R. v. Mamo-Levine (2003), the court postulated three requirements for a rule to qualify as a
basic tenet of the legal system and therefore as a principle of fundamental justice:
 the rule must be a legal principle
 there must be a significant societal consensus that it is fundamental to the way in which the
legal system ought fairly to operate
 the rule must be capable of being identified with sufficient precision to yield a manageable
standard
 the scope of fundamental justice can be restricted by the placement of s. 7 in the legal rights
portion of the charter (i.e.; the residuary theory (as laid out in B.C. Motor Vehicle Reference
(1985)), under which s. 8 to 14 are simply illustrations of s. 7)
 the court’s residuary emphasizes that s. 7 is directed to the protection of only those values
that are reflected in the legal rights
 this means that social and economic regulation would not be vulnerable to a s. 7 attack
 further, a breach of fundamental justice is of no constitutional importance if it doesn’t cause
a deprivation of life, liberty, or security of the person, and outside the general sphere of
criminal justice, only a few laws touch life, liberty, or security of the person
 the SCC has often applied the residuary theory of s. 7 to grant a right in circumstances that
do not fit within a more specific charter guarantee
 in effect, the residuary theory of s. 7 authorizes the judges to redraft the provisions of s. 8 to
14 of the charter
11. Absolute and Strict Liability (pg. 30)
(a) Categories of Offences (pg. 30)
 in R. v. City of Sault Ste. Marie (1978), a pre charter case, the SCC divided offences into three
categories:
 absolute liability – the offence consists simply of doing the prohibited act, there is no
requirement (and thus defence) of fault
 strict liability – the offence consist simply of doing the prohibited act, however if due diligence
is proven by the defendant then it acts as a defence
 offences of mens rea – in which the offence consists not only of doing the prohibited act, but of
doing so with a guilty intent of intending to break the law (or being reckless as to whether or
not the law would be broken)
(b) Absolute Liability Offences (pg. 31)
 in B.C. Motor Vehicle Reference (1985), the Act made it an offence to operate a motor vehicle
while one was prohibited or suspended from driving, regardless of whether the defendant knew of
the prohibition or suspension or not
 the SCC held that the absolute liability was a denial of the principles of fundamental justice since
the offence carried a term of imprisonment – a conviction would mean a deprivation of liberty,
and therefore, the offence was declared to be in violation of s. 7 and of no force or effect
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 R. v. Pontes (1995) makes clear that s. 7 has no application to an offence that carries only the
penalty of a fine, even a very large fine, because in that case, liberty is not affected
 as long no sentence of imprisonment is provided for, it is possible for parliament or
legislature to create offences of absolute liability
 nevertheless, although absolute liability offences still exist, and because of the injustice of
punishing a person who has acted without fault and has taken reasonable precautions to
comply with the law, absolute liability offences have become an exception requiring clear
proof of legislative intent (Levis v. Tetreault (2006))
 an offence of absolute liability carries the penalty of imprisonment is an infringement of s. 7,
however, it does not always follow that the offence must always be struck down – there are other
remedial options that are open to the court:
 as in Levis v. Tetreault (2006), to interpret the statute creating the offence as implicitly
allowing a defence of due diligence, in which case the offence becomes one of strict liability
 as in R. v. Hess (1990), to use the power of severance (or reading in) to convert the offence
into one of mens rea
 as in R. v. Pontes (1995), to use the power of severance to eliminate the penalty of
imprisonment, in which case the offence (if it is a regulatory one) can survive as one of
absolute liability
(c) Strict Liability Offences (pg. 33)
 R. v. Wholesale Travel Group (1991) was a case of strict liability whereby the act made clear that
there was no requirement of means rea, and the only defence was one of due diligence
(reasonable care), the burden of proving which rested upon the accused
 the defence relied on the B.C. Motor Vehicle Reference (1985) to argue that it was a violation
of fundamental justice to place an individual in jeopardy of imprisonment for any less fault
than mens rea
 the court said that the offence of false/misleading advertising that was being charged was a
regulatory offence (and not a true crime where inherently wrongful conduct is punished),
which was designed to establish standards of conduct for activity that could be harmful to
others; it did not imply moral blameworthiness
 the effect of Wholesale Travel is to settle the validity of strict liability
 in the case of regulatory offence or a public welfare offence, including those that carry a
penalty of imprisonment, fundamental justice does not require that mens rea be an element
of the offence
 fundamental justice is satisfied if there is a defence of reasonable care (due diligence), and
the burden of proving reasonable care may be cast on the defendant
 in the case of true crimes, however, fundamental justice requires that mens rea be an
element of the offence, and the burden of proving it would have to be on the crown
 in R. v. Finlay (1993), the SCC repeated the dictum of R. v. Hundal (1993) that in the appropriate
contexts, negligence can be an acceptable basis of liability which meets the fault requirement of s.
7
 in the court’s opinion, there was also a section on stigma analysis wherein it was stated that
the offence does not give rise to sufficient stigma to require a subjective mens rea under s. 7
of the charter
 the current state of the law is that:
 B.C. Motor Vehicle Reference stands for the proposition that s. 7 of the charter requires that
offences that carry the penalty of imprisonment must include an element of fault
 according to Wholesale Travel, that element must be subjective means rea if the offence is a
true crime, but need only be negligence (departure from an objective standard of due
diligence) if the offence is a regulatory offence
 although the acceptance of negligence as a sufficient element of fault is an abandonment of
the broader principle of B.C. Motor Vehicle, that the morally innocent should not be punished,
because the merely negligent offender may seriously believe that his or her conduct is lawful,
in Hundal the court held that negligence was the only constitutional requirement for an
offence that carried a punishment of 14 years imprisonment and did not clearly state that the
offence was a regulatory one
 in R. v. Nova Scotia Pharmaceutical Society (1992) and R. v. Naglik (1993), the court also
accepted that the departure from an objective standard was the only constitutional
requirement for an offence that the court implied was a true crime

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 the court seems to be abandoning the distinction between true crimes and regulatory offences;
however, there has been guidance as to when subjective mens rea is constitutionally required and
when a merely objective standard of fault will suffice
12. Murder (pg. 39)
 the criminal code definition of murder used to include the felony-murder rule (if an accused caused a
death in the course of committing certain serious offences while armed with a weapon, then the
accused was guilty of murder) – there was no requirement that the accused intended to cause the
death or knew that his actions were likely to do so (or even that he ought to have known that his
actions were likely to do so)
 the felony murder rule required only proof of the felony, the use or carrying of the weapon, and
the ensuing death
 in R. v. Vaillancourt (1987), the SCC held that the felony-murder rule was a violation of fundamental
justice under s. 7 – the fact that an accused must have mens rea with respect to the underlying
offence was not sufficient to satisfy s. 7
 before an accused could be found guilty of murder, s. 7 required that there be mens rea with
respect to the death, and as such, the felony murder rule was unconstitutional
 in R. v. Martineau (1990), the ruling that the mens rea requirement for murder was subjective
foresight of likely death quickly led to a s. 7 challenge to s. 21(12) of the criminal code which defines
who is a party to an offence (i.e.; persons who carry out an unlawful purpose together, and, although
only one of them actually commits the offence, the others knew or ought to have known that the
commission of the offence would be likely in carrying out the common purpose)
 R. v. Logan (1990), the court held that the crime of attempted murder was one of those very few
offences for which s. 7 stipulated a requirement of subjective mens rea – since subjective mens
rea was required for the conviction of attempted murder, the same was required for the
conviction of a party to the offence
 the phrase, ought to have known in s. 21(12) which purported to make objective mens rea
sufficient for the conviction of a party was inapplicable wherever the principle offence for
which the subjective mens rea was constitutionally required
13. Unforeseen Consequences (pg. 43)
 there are criminal code offences in which the consequences of an unlawful act dictates the severity of
the punishment for which the accused is liable:
 e.g.; the maximum penalty for dangerous driving is five years; dangerous driving causing bodily
harm is ten years; dangerous driving causing death is fourteen years – however, assuming that
the accused’s mental state is the same for all thee offences, it is a breach of fundamental justice to
make an unintended and unforeseen consequence (i.e.; bodily harm or death) the basis of a more
serious charge
 the court has indicated that the requirement of subjective foresight of the consequences of an
unlawful act applies only to very few offences which are identified by reference to the social stigma
and the penalty attaching to those offences
 R. v. DeSousa (1992) Sopinka J. held that there was “no constitutional requirement that intention ,
either on objective or subjective basis, extend to the consequences of unlawful acts in general”.
Under s. 7 of the charter, it is acceptable to distinguish between criminal responsibility for equally
reprehensible acts based on the harm that is actually caused.
14. Involuntary Acts (pg. 46)
(a) Automatism (pg. 46)
 it is a tenet of the criminal law that a person should not be convicted of a criminal offence for an
act that is not voluntary – the courts have become persuaded that a person can engage in very
complex behaviour while in a state of automatism, and that automatic behaviour cannot be an
offence because it is involuntary
 e.g.; R. v. Parks (1992) wherein the accused got up in the middle of the night, drove his car
23km and killed his mother in law and wounded his father in law
 automatism can also occur when a person who is awake and sane suffers a psychological
blow that induces a state of automatism (e.g.; R. v. Stone (1999))
 the requirement of voluntariness is a basic principle of the legal system that is protected by s. 7 –
this means that the law respecting automatism has constitutional status, and any attempt to
abolish the defence or restrict it would be unconstitutional (unless the limiting law could be
justified under s. 1)
(b) Duress (pg. 47)
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 under s. 17 of the criminal code, duress is an excuse for the commission of an offence whereby an
offence committed under compulsion is excused from criminal liability
 the compulsion must take the form of threats of immediate death or bodily harm from a
person who is present when the offence is committed
 in R. v. Ruzic (2001), the SCC said that s. 7 of the charter was applicable because it would be
a breach of the principles of fundamental justice to convict a person of a crime when that
person had not acted voluntarily – and that, due to this case, the immediacy and presence
requirement of s. 17 were struck down as unconstitutional because they had the potential of
convicting a person who had not acted voluntarily
(c) Intoxication (pg. 48)
 in R. v. Daviault (1994), the SCC held that s. 7 requires that extreme intoxication be a defence to a
criminal charge
 the court held that s. 7 was offended by the rule that self-induced intoxication was no defence
to a criminal charge – that under s. 7 the requirement of mens rea for a crime of general
intent could only be intention to commit the prohibited act; the intention to become drunk
could not be substituted for the intention to commit the forbidden act
 to eliminate the only permissible mental element from the crime was a breach of
fundamental justice, resulting in a breach of s. 7
 before this case, a person could not escape responsibility for offences of general intent by
pleading drunkenness
 the courts reasoned that even in a state of extreme intoxication an accused could not
escape blame because self-induced drunkenness was sufficiently blameworthy to
substitute for the intention to perform the forbidden act – this rule protected the public
from drunken offenders who could not escape responsibility for violent acts by becoming
extremely drunk
 in the backlash from the case, Parliament enacted an amendment to the criminal code that
described extreme self-induced intoxication as a marked departure from the standard of
reasonable care generally recognized in Canadian society and provided that this departure
constituted the fault required for conviction of offences of violence
 through decisions of R. v. Robinson (1996) and R. v. MacAskill (1931), it has been held that if
drunkenness raised a reasonable doubt as to whether the accused in fact possessed the requisite
specific intent, then the accused was entitled to be acquitted even if here was no doubt that the
accused possessed the capacity to form the requisite intent
15. Overbroad Laws (pg. 52)
 the doctrine of overbreadth was established in R. v. Heywood (1994) which applies to a law that is
broader than necessary to accomplish its purpose
 in this case, the court acknowledged that the purpose of the law was to protect the safety of the
children, and as such would not be a breach of fundamental justice, but that a law that restricted
liberty more than was necessary to accomplish its purpose would be a breach of fundamental
justice by reason of overbreadth
 overbreadth is a breach of the principles of fundamental justice, and therefore a basis for a finding of
unconstitutionality in a law that affects life, liberty, or security of the person
 overbreadth is not the same as vagueness; a law could be perfectly clear (i.e.; not be vague) and still
use means that went further than necessary to accomplish tit purpose (i.e.; be overbroad)
 the doctrine requires that the terms of a law be no broader than is necessary to accomplish the
purpose of the law
 R. v. Demers (2004) is another example of a law being struck down for being overbroad and thus
unconstitutional
16. Disproportionate Laws (pg. 58)
 R. v. Malmo-Levine (2003) established a new doctrine of disproportionality whereby the court is
required to determine:
 whether a law pursues a legitimate state interest
 and if it does, whether the law is grossly disproportionate to the state interest
17. Arbitrary Laws (pg. 58)
 according to Chaoulli v. Quebec (2005), a law is arbitrary if it lacks a real connection on the facts to
the purpose the law is said to serve – arbitrary laws are offensive to fundamental justice
 in A.C. v. Manitoba (2009), wherein the wishes of a 14 year old Jehovah’s witness to not have blood
transfusion was overridden by way of the Child and Family Services Act allowing the judge to order
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treatment that is in the best interest of a child under the age of 16 (no order could be made for a child
aged 16 or over unless the court was satisfied that the child lacked the capacity to give consent – but
no such presumption of capacity applied to children under 16)
 there was no doubt that the liberty and security of the person of A.C. was infringed by the
compelled medical treatment was a breach of the principles of fundamental justice because it
was arbitrary
 although it was agreed that it would be arbitrary to assume that no one under the age of 16 had
the capacity to make medical treatment decisions, but the best interests standard enabled the
judge to take increasingly serious account of the child’s own wishes as her age, maturity and
independence advanced – that was not arbitrary
18. Vague Laws (pg. 47-61)
(a) Void for Vagueness (pg. 60.1)
 a vague law violates the principles of fundamental justice, which causes a breach of s. 7 if the law
is a deprivation of life, liberty, or security of the person
 a vague law offends two values that are fundamental to the legal system:
 the law does not provide fair notice to persons of what is prohibited, which makes it difficult
for them to comply with the law
 the law does not provide clear standards for those entrusted with enforcement, which may
lead to arbitrary enforcement
 in the case of vagueness, once the law has been determined to apply to the defendant on the facts
of the case before the court, the defendant is not permitted to point to the vagueness of the law in
its application to other cases not before the court
 an overbreadth challenge relies, not on the vagueness of the law, but on the argument that
the terms of the law are broader than is necessary to accomplish the purposes thereof
 also, the use of hypothetical cases is not permitted for the vagueness arguments (whereas in
the case of overbreadth, if a hypothetical case can be imagined that is outside the purposes of
the law but is nevertheless caught by the terms thereof, then the law is overbroad)
(b) Standard of Precision (pg. 62)
 a law is unconstitutionally vague if it fails to give fair notice of what conduct is prohibited by the
law, and if it fails to impose real limitations on the discretion of those charged with enforcement
of the law
 regardless, the constitutional standard of precision cannot be very exacting
 in R. v. Nova Scotia Pharmaceutical Society (1992), it was said that it was important not to
require a law to achieve a standard of precision to which the subject matter does not lend itself
 there is no requirement that a law be absolutely certain because no law can meet that standard
 the vagueness doctrine is not offended if a law is open to more than one interpretation – it is only
unconstitutionally vague if it cannot, even with judicial interpretation, provide meaningful
standards of conduct
 however, the court has pointed out that there has to be caution when interpreting so as to not
end up redrafting the Act being interpreted
(c) Application to Other Charter Rights (pg. 65)
 vagueness in a law that deprives a person of life, liberty, or security of the person is a breach of s.
7 because it is a principle of fundamental justice that a law should not be too vague
 R. v. Morales (1992) makes it clear that the doctrine of vagueness is not confined to s. 7 but
applies to any charter right that carries an implicit requirement that laws not be vague
 a law that limits any of the guaranteed rights can be upheld under s. 1 only if the limit is
prescribed by law
 however, the requirement that a limit be prescribed by law also calls for fair notice to the
citizen and limitation on enforcement discretion
 s. 1 cannot be satisfied by a vague law
19. Wrong Laws (pg. 66)
 pg. 66
20. Right to Silence (pg. 67)
 in R. v. Hebert (1990), the court took the route of right to silence, which is a principle of fundamental
justice in s. 7
 in R. v. Singh (2007), the accused, while in police custody, was advised by his counsel not to talk to the
police; he relayed the same to the interviewing officer, who nevertheless continued to go over the
evidence with him and engage him in conversation
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 on appeal, it was argued that his rights to silence under s. 7 had been breached by the police
officer continued to talk to him after he had stated clearly that he did not want to talk to the
police
 the court held that the right to remain silent did not include the right not to be spoken to by state
authorities – for a person who is in detention and is therefore covered by s. 7, but who knows that
he is talking to a person in authority, the right to silence is not offended by a voluntary statement

21. Fair Trial (pg. 73)


(a) The Right to a Fair Trial (pg. 73)
 the principles of fundamental justice required that a person accused of a crime receive a fair trial
 in this respect, s. 7 overlaps s. 11(d) which also guarantees a person charged with an offence a
fair and public hearing by an independent and impartial tribunal
 however, s. 7 is wider than s. 11(d) because it also applies to civil and administrative
proceedings where they affect life, liberty, or security of the person
 the right to a fair trial does not mean that all the rules of procedure and evidence that are
directed to a fair trial are constitutionalized and consequently unalterable.
(b) In a much more departure from traditional trial format the SCC had to review in Charkaoui v.
Canada (2007) (Pg. 75) the issue process for the security certificates. It held that the issue of security
certificate was deprivation of liberty under s. 7, and that the review process did not satisfy the
principles of fundamental justice, on the basis of not providing fair trial to the named person.
Full Answer and Defence (pg. 76)
 in R. v. Seaboyer (1991), the SCC held that both s. 7 and s. 11(d) guaranteed to an accused the
right to present full answer and defence
 however, this was subject to the rape-shield provision in the criminal code whereby it would
have the effect of excluding relevant evidence that was required to enable the accused to
make full answer and defence
(c) Pre-Trial Disclosure by the Crown (pg. 78)
 in R. v. Stinchcombe (1991), the court held that pre-trial disclosure by the crown of all
information relevant to the conduct of the defence is a constitutional obligation, entailed by the
accused’s right to make full answer and defence
 including the evidence the crown intends to call at trial as well as the evidence it does not
 the disclosure must be timely, in that it must be provided with enough time before the trial to
enable the defence to consider it properly
 the obligation of disclosure does not cease with the trial, at least not if the accused is convicted –
if information comes into the possession of the crown after the trial, then the crown has an
obligation to disclose any information in respect of which there is a reasonable possibility that it
may assist the accused in prosecuting an appeal
(d) Pre-Trial Disclosure by Third Parties (pg. 78.2)
 in R. v. O’Connor (1995), Stinchcombe did not impose an obligation because the records in
question were in the possession of third parties
 the fact that the records were not in the possession of the crown meant that they were not being
relied upon by the crown so that they did not form part of the accused’s case to meet, and
therefore might not be necessary for full answer and defence
 the court held that access to private records in the possession of third parties could be necessary
to an accused’s right to make full answer and defence, however that this did not give an accused
an automatic right of access to the records
 the court ruled that the production must be governed by a procedure which would strike the
proper balance between full answer and defence on one hand, and the witness’s privacy and
equality right on the other
 solicitor client privilege was the competing constitutional value in R. v. McClure (2001) – the
court held that the file, because it contained communications between a solicitor and his client
for the purpose of providing legal advice or assistance, was covered by solicitor client privilege
meaning that the privilege-holder could refuse to produce it in court proceedings
(e) Preservation of Evidence (pg. 78.5)
 the crown’s duty to disclose relevant evidence to the accused applies only to the evidence that is
in the possession or control of the crown
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 evidence that has been destroyed or lost (or never existed in the first place) cannot be disclosed
 as such, the crown is under a duty to preserve relevant evidence once it comes into the possession
or control of the crown
 however, the accused’s right to disclosure is not so broad as to cause a charter breach every time
evidence is lost or destroyed
(f) Statutory Limits on Pre-Trial Disclosure (pg. 81)
 in R. v. O’Connor (1995), it was recognized that the accused’s right to disclosure from third
parties must be limited in sexual assault cases where the constitutional rights to privacy and
equality of complainants and other witnesses must be weighed in the balance with the accused’s
right to make full answer and defence
 since then, Parliament has enacted legislation in the form of amendments to the criminal
code that placed severe restrictions on the disclosure of confidential records in sexual assault
cases
 this amendment applies to all confidential records, inducing those in the possession of the
crown (with the exception of records that are created in the course of a police investigation)
 according to the criminal code amendments, a confidential record will be produced for inspection
by the court if the defence can establish both that it is likely relevant and that its production is
necessary in the interest of justice
 these amendments set restrictions on pre-trial disclosure of confidential records in sexual assault
proceedings
 with respect to records in the possession of the crown, Stinchcombe has decided that if they were
relevant to the defence and not privileged, they should automatically be disclosed to the accused
22. Fair Administrative Procedures (pg. 83)
 s. 7 goes beyond natural justice which is a requirement that administrative tribunals observe rules of
procedural fairness – however s. 7 also includes a requirement of procedural fairness
 this requirement attaches only where a decision maker has a power of decision over life, liberty, or
security of the person – where this is so, s. 7 will impose rules of procedural fairness on the decision
maker
 the common law rules of procedural fairness must yield to any statutory provisions
 where s. 7 applies, the rules of procedural fairness have constitutional status and will prevail over
any inconsistent statutory provisions
 a statutory provision found to be in breach of s. 7 could, in theory, be justified under s. 1

Syllabus Cases:

1. Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350


Facts:
 at issue was the process for the issue of security certificates under the federal Immigration and Refugee
Protection Act
 the Act empowered two minsters to issue a certificate declaring a non-citizen to be a threat to national
security, and authorized the arrest and detention of the names person
 the certificate was to be referred to a judge of the Federal Court for review on the standard of
reasonableness, and if the judge so found, then the certificate became a removal order, authorizing the
deportation of the person named therein
 at no stage did the named person necessarily know the nature of the case against him, there was no
hearing on the original issue of the certificate – on review, the judge would often be unable to disclose to
the named person the information upon which the certificate had been based
Held:
 the issue of a security certificate was a deprivation of liberty under s. 7 and that the review process did
not satisfy the principles of fundamental justice because it did not provide the named person with a fair
hearing
 although national security considerations can limit the extent of disclosure of information to the affected
person, the secrecy required by the scheme denies the names person the opportunity to know the case put
against him or her and hence to challenge the government’s case
 this is a breach of the principles of fundamental justice
 and without some effort to compensate for the non-disclosure of secret information, the security
certificate process could not be justified under s. 1

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2. Canada v. PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134

Facts
Insite is a safe injection facility in Vancouver’s downtown eastside that provides medical supervision to
intravenous drug users. It has operated since 2003 under an exemption from the prohibition on possession of
illicit drugs in the Controlled Drugs and Substances Act. In 2008 the federal Minister of Health failed to extend
Insite’s CDSA exemption, which brought about this action.

The claimants, the operator and clients of Insite, argued that the division of powers makes the federal CDSA
prohibitions inapplicable to the provincial health activities of Insite staff and patrons. The claimants also
submitted that sections of the CDSA were of no effect because they violated the claimants’ s.7 Charter rights.

Holding
The federal CDSA provisions do apply to provincial health activities. While the provisions do not violate the
claimants’ s.7 rights, the Minister’s failure to provide an exemption does.
Held: The appeal and the cross-appeal are dismissed. The Minister of Health is ordered to grant an exemption
to Insite under s. 56 of the CDSA forthwith.
Appeal dismissed with costs. Cross appeal dismissed without costs
Reasons - Division of Powers
The claimants argued that interjurisdictional immunity shields provincial decisions about medical treatments
from federal government interference. The court rejected this argument, overturning the majority of the Court of
Appeal. McLaughlin C.J.C. noted that recent jurisprudence has limited the use of interjurisdictional immunity,
preferring to accommodate both provincial and federal legislation through use of the concepts of double aspect
and cooperative federalism.

The court gave three reasons for rejecting the interjurisdictional immunity claim. First, immunity of the
provincial health power had never been recognized in the jurisprudence. (This point was not determinative;
theoretically new areas of exclusive jurisdiction could be identified in the future.) Second, and more importantly,
the claimants “failed to identify a delineated ‘core’” of the provincial health power, which is large and overlaps
substantially with federal jurisdiction. Third, granting interjurisdictional on the facts might result in a “legal
vacuum” where neither government is able to legislate.

The court was careful to affirm that the doctrine of interjurisdictional immunity has been narrowed, not
abolished. Moreover, it is not confined to federal powers (one of the majority judgments at the Court of Appeal
claimed that if interjurisdictional immunity was not available on these facts, “then it may well be said the
doctrine is not reciprocal and can never be applied to protect exclusive provincial powers.”) However, the
judgment implicitly suggests that future interjurisdictional immunity arguments should be limited to invoking
previously identified “core” undertakings.

Reasons - Charter argument

The claimants argued that sections of the CDSA are invalid because they limit the claimants’ s.7 Charter
rights. In the alternative, the claimants submitted that their s.7 rights have been violated by the Minister of
Health’s decision not to exempt Insite from the CDSA. The court agreed with the alternative argument.
The court found that the prohibition of possession in the CDSA engages the claimants’ s.7 right to liberty since
its breach can result in imprisonment. It also engages Insite clients’ s.7 rights to life and security of the person by
denying them access to “potentially lifesaving medical care.”

However, the court found that these limitations do not run afoul of the principles of fundamental justice. The
claimants’ arguments that the CDSA prohibition on possession was arbitrary, overbroad and disproportionate
were dismissed on the grounds that the CDSA has a built-in “safety valve” - it empowers the Minister to grant
exemptions to the prohibition on possession for medical and scientific purposes.

While the statute did not violate the claimants’ s.7 rights, the court held that the Minister’s decision did.
Following Suresh, the Minister’s exercise of discretion must conform to the Charter. The Minister’s decision
engages the s.7 rights of the claimants for the same reasons that the CDSA does. Unlike the CDSA, however, the
Minister’s decision was arbitrary and disproportionate in its effects.

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It was arbitrary because the purpose of the CDSA is to protect health and public safety, and exempting Insite
from the CDSA would further these goals. The court noted that although the SCC split over the definition on
arbitrariness in Chaoulli, the Minister’s decision would be arbitrary under either definition. The Minister’s
decision was also grossly disproportionate in its effects. Denying the lifesaving services that Insite provides is
grossly disproportion to the benefit of having a uniform drug policy.

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19. EQUALITY RIGHTS


Constitution Act, 1982, s. 15, s. 28
 s. 15(1) says that every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, without discrimination
based on:
 race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability
 s. 28 says that notwithstanding anything in this charter, the rights and freedoms referred to in it are
guaranteed equally to male and female persons

Hogg. Chapter 55. “Equality”


1. Distribution of Powers (pg. 2)
 the distribution of powers over egalitarian values presents two issues:
 to what extent each level of government can deny or limit egalitarian values (e.g.; by enacting
laws that discriminate on the basis of characteristics such as race, national origin, or sex)
 the position before 1985 (i.e.; before the charter came into effect) was dictated by the
doctrine of parliamentary sovereignty – that the parliament or legislature could discriminate
as it pleased in enacting otherwise competent legislation
 the extent to which each level of government may promote egalitarian values (e.g.; by enacting
laws that forbid discrimination in employment, accommodation, and facilities open to the public)
 the real threat to equality in Canada comes not from legislative and official action, but from
discrimination by private persons (e.g.; employers, trade unions, landlords, realtors, etc.)
 the economic liberties of freedom of property and contract, which imply a power to deal with
whomever one pleases, come into direct conflict with egalitarian values
 economic liberties of freedom of property and contract have now been subordinated to the
egalitarian values by the enactment of human rights legislations which forbid various
discriminatory practices on pain of penalty
 most of the field is provincial under property and civil rights in the province ( s. 92(13)); however,
the federal parliament could, if it chose to exercise its criminal law power (s. 91(27)) outlaw
discriminatory practices generally
2. Canadian Bill of Rights (pg. 4)
 the Canadian Bill of Rights, by s. 1(b) guarantees equality before the law – this provision applies only
to the federal parliament
 after several Indian Act cases, the SCC began to develop a definition of equality under s. 1 which
relied on the notion of a valid federal objective – but it was unsatisfactory in two ways:
 the court never clarified what the term meant
 the court did not relate the valid federal objective to the particular provision that was under
challenge; if the act as a whole pursued a valid federal objective, then every detailed provision
was invulnerable to attack on equality grounds (i.e.; the court automatically deferred to
parliament’s judgment)
 the provision in the Canadian Bill of Rights was superseded by s. 15 of the Charter of Rights – it
applies to the federal parliament and to the provincial legislatures
 s. 1(b) of the Bill of Rights, although still in force, has been rendered irrelevant
 the language of valid federal objective has been replaced by a new doctrine that isles deferential to
the legislative bill
3. American Bill of Rights (pg. 6)
 both levels of government are bound by a guarantee of equal protection of the laws
 the fourteenth amendment of the Constitution of the United States provides that no state shall
deny to any person within its jurisdiction the equal protection of the laws
 although the fourteenth amendment applies only to the states, the guarantee of equal protection
has been held to be incorporated in the due process clause of the fifth amendment which applies
to the federal congress as well
 the guarantee of equal protection is unqualified in its terms (with no equivalent of the saving clause
of s. 1 of the Canadian Charter)
 however, recognizing that nearly all laws impose burdens or confer benefits on special groups, and
deny the benefits or burdens to other groups, the doctrine of reasonable classification which saves
those legislative classifications as a reasonable means of achieving a legitimate legislative purpose
has been developed – it involves a two-tier standard of review:
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 the upper tier includes laws that classify by race or national origin – these are suspect
classifications as they abridge fundamental rights and the standard review is usually one of strict
scrutiny
 such laws are held to be unconstitutional unless the government can establish that the
classification was justified by a compelling state interest and that there was no alternative
means of vindicating that state interest
 the lower tier of judicial review under the equal protection clause includes all legislative
classifications that are not suspect and that do not affect fundamental rights
 for these laws, a more relaxed standard of judicial review, usually described as minimal
scrutiny is employed – it is sufficient if there is a rational basis for the classification
4. Section 15 of the Charter (pg. 9)
 s. 15 confers its right on an individual and guarantees against discrimination based on race, national
or ethnic origin, colour, religion, sex, age, or mental or physical disability
 equality is expressed in four different ways: equality before the law; equality under the law;
equal protection of the law; and equal benefit of the law
 s. 15(2) authorizes the creation of affirmative action programmes that have the purpose of
alleviating the conditions of disadvantaged groups
5. Application of s. 15 (pg. 10)
(a) Individual (pg. 10)
 s. 15 confers is equality rights on “every individual” – this term is more specific than “everyone”
“any person” or “anyone” and probably does not include corporations
(b) “Law” in s. 15 (pg. 10)
 the burden of the equality rights, like all other charter rights, is imposed by s. 32 on the
parliament and government of Canada and the legislature and government of each province
 the reference to law in s. 15 applies to the same range of governmental action as other charter
rights (i.e.; the range of governmental action as defined in s. 32)
(c) Private Action (pg. 12)
 s. 32 of the charter excludes private action from the application of the charter – as such, s. 15
does not apply to private acts of discrimination either
 however, in all jurisdictions in Canada, human rights codes have been enacted that prohibit
private acts of discrimination in most fields
 the human rights codes are statutes and do not enjoy constitutional status – and as statutes
themselves, the human rights codes are subject to the charter
6. Equality (pg. 13)
(a) Four Equalities of s. 15 (pg. 13)
 the reason for four formulations of the idea of equality is to reverse the restrictive interpretations
placed by the SCC on the phrase equality before the law
 equal before the law – the way in which the law is administered
 equal under the law – the substance of the law
 equal protection of the law
 and equal benefit of the law
(b) Absolute Equality (pg. 13)
 laws can never provide the same treatment for everyone – and as such, the guarantee of the law
doesn’t necessarily mean that the law must treat everyone equally
 indeed, every statute or regulation employs classifications of one kind or another for the
imposition of burdens or the grants of benefits
(c) Aristotle’s Definition (pg. 14)
 Aristotle said that justice considers that persons who are equal should have assigned to them
equal things and that there is no inequality when unequals are treated in proportion to the
inequality existing between them
 as such, persons who are alike (i.e.; similarly situated), should be treated alike – and persons who
are not alike should be treated differently in proportion to their differences
 laws that single out groups for special treatment do not offend the principle of equality if they
employ classifications that appropriately distinguish between people who are not alike and if
they provide for appropriately different treatment for those who are not alike
 however, the problem is that there is no real criteria for establishing who is alike and who is not
(d) Similarly Situated (pg. 15)

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 before Andrews v. Law Society of B.C. (1989), the courts applied a version of the similarly situated
test whereby a denial of equality was made out if it could be shown that the law accorded the
complainant worse treatment than others who were similarly situated
 in Andrews, it was concluded that the similarly situated test should no longer be used as a
fixed rule or formula for the resolution of equality questions as it could be used to justify laws
that discriminate against some groups
 however, the fact remains that equality is inescapably a comparative concept – a person is
treated unequally only if that person is treated worse than others, and those others (the
comparison group) must surely be those who are similarly situated to the complainant
 the similarly situated test is not wrong in principle, its vice is that it does not supply the proper
criteria required to determine who is similarly situated to whom, and what kinds of differences in
treatment are appropriate to those who are not similarly situated – it provides too little guidance
to a reviewing court
(e) Formal and Substantive Equality (pg. 15)
 the most common criticism of the similarly situated definition is that it can mask discrimination
that occurs indirectly rather than directly
 an apparently neutral law may have a disproportionate effect on a particular group, which,
as a consequence, is being treated unequally
 formal equality, which covers direct discrimination, can be trivial – it is also necessary to
guarantee substantive equality so that indirect as well as direct discrimination is covered
 nevertheless, even as one moves from formal equality to substantive equality, one is still left with
the problem that the idea of equality does not by itself supply the criteria for determining which
distinctions (whether direct or indirect) are consistent with the idea of equality and which are
not
(f) Reasonable Classification (pg. 16)
 American courts have found the criteria of equality in a doctrine of reasonable classification
 if a law purposes a legitimate state purpose, and it employs classifications that are
reasonably related to the accomplishment of that purpose, there is no violation of equal
protection – this approach concentrates on the purpose of the law, and tests likeness by
reference to that purpose
 the American doctrine of reasonable classification is like the similarly situated test in that it
operates at a very high level of generality
(g) Valid Federal Objective (pg. 17)
 before the adoption of the charter of rights, Canadian courts applied the guarantee of equality in
the Canadian Bill of Rights
 the approach that became dominant in the court was to uphold any distinction in a statute if
it purposed a valid federal objective
 however, this brought a high degree of judicial deference to the court’s review of the choices
made by parliament
(h) Early Applications of s. 15 (pg. 17)
 before Andrews, most courts assumed that every legislative distinction was a proper subject for
equality review, but they upheld every distinction
 in Andrews, the court held that s. 15 was a prohibition of discrimination, and that discrimination
could only be based on a ground that was listed in s. 15 or that was analogous to those listed in s.
15
 this ruling had the merit of avoiding any inquiry into the abstract concept of equality, and the
further merit of excluding from equality reviews those statutes that do not employ the listed
classifications, or analogous classifications
7. Discrimination (pg. 18)
 s. 15 guarantees equality, but goes on to stipulate without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or
physical disability
 s. 15 should be read as prohibiting only those violations of equality that amount to discrimination
 discrimination is the operative concept; the SCC has settled itself not the following definition of
discrimination:
 the challenged law imposed (directly or indirectly) on the claimant a disadvantage (in the form
of a burden or withheld benefits) in comparison to other comparable persons
 the disadvantage is based on a ground listed in or analogous to a ground listed in s. 15
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 and the disadvantage also constitutes an impairment of the human dignity of the claimant
 the claimant who persuades the court of these three elements is entitled to a finding of discrimination
which means that the challenged law is in breach of s. 15
 the burden then shifts to government to justify the discriminatory law under s. 1
 in an unusual case, s. 1 justification will still uphold a discriminatory law
8. Listed or Analogous Grounds (pg. 19)
(a) Requirement of a Listed or Analogous Ground (pg. 19)
 before Andrews, a variety of views had been articulated:
 at one end: every distinction drawn in a statute counted as discrimination in breach of s. 15
– and whether it was justified or not would have to be determined under s. 1
 at the other end: the only legislative distinctions that would amount to discrimination were
those that were unreasonable or unfair – that s. 15 contained its own implicit requirement of
justification and the question of legislative distinction being justified is determined by an
assessment of its reasonableness or unfairness according to standards that the courts would
have to develop within s. 15 itself
 the problem was that whether the justification was to be found in s. 1 or within s. 15 itself, the
volume of cases was such that some threshold was needed to reduce the flow of cases to those
where legislative distinctions were presumptively suspect, an where judicial intervention was less
likely to disturb legitimate legislative line-drawing
 s. 15 itself listed grounds, though not exhaustive, that pointed to personal characteristics of
individuals that cannot be easily changed and have been the target of prejudice or
stereotyping
 this suggested that the proper role of s. 15 was not to eliminate all unfairness from the laws,
but rather to eliminate discrimination based on immutable personal characteristics
 in Andrews, the court held that there is a middle ground between the two theories (that s. 15
condemns all legislative classifications; and that s. 15 condemns unreasonable or unfair
classifications) that is to interpret discrimination in s. 15 as applying only to the grounds listed
in s. 15 and analogous grounds – i.e.; enumerated and analogous grounds approach
 this approach most loosely accords with the purposes of s. 15 and leaves questions of
justification to s. 1
 after Andrews, it was clear that s. 15 was a prohibition of discrimination and that discrimination
involved the imposition of a disadvantage (in the form of a burden or the denial of a benefit) on
an individual by reason of the individual’s possession of a characteristic that was either listed in
s. 15 or was analogous to those listed in s. 15
 this immediately ruled out judicial review of all statutes that did not employ a listed or
analogous classification
 it can, therefore, be deduced that the restriction of s. 15 to listed and analogous grounds is a
permanent feature of the s. 15 jurisprudence
(b) Addition of Analogous Grounds (pg. 22)
 analogous grounds are grounds that are similar in some important way to the grounds listed in s.
15 (i.e.; race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability)
 they are all personal characteristics of individuals that are unchangeable (at least, without
great difficulty or cost) and are not voluntarily chosen, but are an involuntary inheritance
 these grounds describe what a person is rather than what a person does
 the limitation of s. 15 to listed and analogous grounds restricts judicial review to laws that
distinguish between individuals on the basis of their inherent attributes as opposed to their
behaviour
 what warrants a constitutional remedy is the claim that a law has treated an individual
unfairly by reason of a condition over which the person has no control
 so far, only three analogous grounds have been recognized:
 the first two are not immutable in a strong sense, each can often be chosen by the individual,
however they are upheld on the basis of human dignity
 the first analogous ground was citizenship recognized in Andrews and affirmed in Lavoie
v. Canada (2002)
 the second was marital status in Miron v. Trudel (1995) and Nova Scotia v. Walsh (2002)
 the third was sexual orientation in Egan v. Canada (1995), wherein it was described as a
deeply personal characteristic that is either unchangeable or changeable only at
unacceptable personal costs
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 this was confirmed in Vriend v. Alberta (1998), M. v. H. (1999), Little Sisters Book and Art
Emporium v. Canada (2000), EGALE v. Canada (2003), Halpern v. Canada (2003)
 where there is no distinction based on a listed or analogous grounds, there is no remedy under s.
15
9. Human Dignity (pg. 26)
(a) Ambiguity in Andrews (pg. 26)
 the most common reading of Andrews is that a breach of s. 15 occurred whenever a
disadvantage (a burden or withheld benefit) was imposed on the basis of a listed or analogous
ground
 the finding would exhaust the role of s. 15, and issues of the reasonableness or fairness of the
challenged law would be addressed under s. 1
 as such, s. 15 and s. 1 have distinct roles in the equality inquiry
 accordingly, discrimination in s. 15 has a very simple meaning
 however, the opinion in Andrews leaves the impression that something more than the breach of a
listed or analogous grounds is required to constitute discrimination under s. 15, but it leaves no
hint as to what that something more might be
 further, it is accompanied by the assertion that any justification, any consideration of the
reasonableness of the enactment is to take place under s. 1
 the implication of this assertion is that the reasons justifying the enactment are not part of
the definition of discrimination in s. 15, because if they are, the clear demarcation between
the roles of s. 15 and s. 1 is destroyed
(b) Impairment of Human Dignity (pg. 27)
 in Law v. Canada (1999), the SCC issued an opinion providing a new interpretation of s. 15:
 s. 15 applied only to legislative distinctions based on a listed or analogous ground
 discrimination in s. 15 involved an element additional to a distinction based on a listed or
analogous ground
 that additional element was an impairment of human dignity
 Law didn’t define human dignity; instead, it suggested four contextual factors, which are not
exhaustive, to be considered when making the human dignity inquiry:
 the existence of pre-existing disadvantage, stereotyping, prejudice, or vulnerability
 the correspondence between the distinction and the claimant’s characteristics or
circumstances
 the existence of beneficial purposes or effects on other groups
 the nature of the interest affected
 the problems with the element of human dignity is that it is vague, confusing, and burdensome to
equality claimants – in the cases following Law, the SCC has often disagreed with the lower courts
and amongst itself on the question whether the challenged law impairs the human dignity of the
claimants
 the failure to convince the court in one way or another that human dignity was impaired caused
the claimants to lose the case; and although the claimant could prove discrimination on
analogous grounds, because impairment of human dignity could not also be established, the law
would be upheld without the need for the government to establish s. 1 justification
 after 1999, cases followed the Law analysis until R. v. Kapp (2008) when the court unexpectedly
changed its mind and retracted the requirement of an impairment of human dignity, replacing it
with (what seems to be the very similar requirement of) discrimination
(c) The Factor of Correspondence (pg. 30)
 the correspondence factor, as laid out in Law was described the court as follows: the
correspondence, or lack thereof, between the ground(s) on which the claim is based and the
actual need, capacity, or circumstances of the claimant or others
 the correspondence factor seems to have become the key to impairment of human dignity
 it is the court’s evaluation of the factor that normally yields the outcome, even if the other
factors point in the other direction
 the correspondence factor seems to come down to an assessment by the court of the legitimacy of
the statutory purpose and the reasonableness of using a listed or analogous ground to
accomplish that purpose
 as such, the correspondence factor leaves very little work for s. 1 to do
(d) Discrimination Without Human Dignity (pg. 31)

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 the SCC seems to have abandoned the concept of human dignity as an essential element of a claim
under s. 15 after using the concept as the reason for denying many of the equality claims that
came before it
 in R. v. Kapp (2008), the court did not doubt that human dignity was an essential value
underlying the s. 15 equality guarantee, but as a legal test, it was confusing and difficult to apply
and was an additional burden on equality claimants rather than the philosophical enhancement
it was intended to be
 they held that an impairment of human dignity should no longer be a required element of a s.
15 claim
 however, Law has not been reversed; instead, Kapp assumes that there is still an element of s. 15
in addition to a disadvantage imposed on a listed and analogous ground
 that element is no longer called human dignity, it is just called discrimination, but it has the
same four contextual factors
 pre-existing disadvantage and nature of interest affected and corrective purpose are not
perpetuation of disadvantage and prejudice
 correspondence, which has normally been the decisive one, went to stereotyping
 as such, after Kapp, it is still necessary for the equality claimant to establish something in
addition to disadvantage based on a listed or analogous ground – that additional element
(discrimination) is no longer an impairment of human dignity, it is now the perpetuation of
disadvantage or stereotyping
 however, the definition of discrimination as the perpetuation of disadvantage or stereotyping
is almost as vague as human dignity and relies on the same contextual factors
10. Disadvantage (pg. 32.2)
(a) Selection of Comparator Group (pg. 32.2)
 in order to establish discrimination under s. 15, an individual must show that he or she has
suffered a disadvantage by reason of his or her possession of one of the characteristics named in
s. 15 or an analogous characteristic
 in Andrews, it was said that in order for a legislative distinction to amount to discrimination
against an individual or group, the distinction must be one which has the effect of imposing
burdens, obligations, or disadvantages on such individual or group not imposed on others, or
which withholds or limits access to opportunities, benefits, and advantages available to other
members of society
 the requirement of disadvantage involves a comparison with others – others who are
similarly situated to the complainant except for the presence of a listed or analogous
personal characteristic
 the presence of disadvantage or unequal treatment requires a comparison between the legal
position of the claimant and that of the other people to whom the claimant may legitimately
invite comparison – this involves two inquiries:
 whether the group to which the claimant compares himself is the appropriate comparator
group – (and once the appropriate comparator group has been selected)
 whether the distinction that the law draws between the claimant and the comparator group
is disadvantageous to the claimant
 the selection of the appropriate comparator group involves finding the group that shares with
the claimant all the characteristics that qualify for the benefit or burden, except for a personal
characteristic that is listed in or is analogous to those listed in s. 15
 the definition of the comparator group is critical to the outcome of s. 15 cases because the
outcome turns on the way in which the comparator group is defined
 the claimant will compare himself to a group that is better treated than him
 the responding government will suggest a different comparator group that either receives
worse treatment or the same treatment or does not exist
(b) Requirement of Disadvantage (pg. 34)
 once the appropriate comparator group has been selected, it is necessary to compare the
treatment provided by law to the claimant with the treatment provided to that group
 only if the law treats the claimant less favourably, whether by withholding benefits that are
granted to that group, or by imposing burdens that are not applicable to that group, is the claim
of disadvantage or unequal treatment made out
(c) Objective and Subjective Disadvantage (pg. 36)

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 in Egan v. Canada (1995), the court said that the concept of equal benefit of the law should not be
restricted to a simple calculation of economic profit or loss; that it would take too narrow a view
of the phrase benefit of the law (in s. 15) to define it strictly in terms of economic interests
 however, in some cases, economic interests of the claimants cannot be denied consideration
 if the subjective standard of disadvantage is the correct approach, then it will be present in all
but the most unusual cases since the plaintiff would not bring about a proceeding unless it is
believed that a disadvantage has been suffered
 however, for example, and especially in the instance of charter cases, the decisions do not
affect only the parties who believe they are disadvantaged
 the fluctuation between objective and subjective inquiries into disadvantage was addressed in
Law v. Canada (1999) by introducing into the equality jurisprudence a new requirement of
human dignity – (but the problems with this have been discussed above)
 later cases have clarified the test as meaning that an impairment of human dignity is to be
assessed from the perspective of a reasonable person (objective), but one who shares the
attributes and circumstances of the claimant (subjective)
 this is presumed to be the appropriate test for the assessment of disadvantage as well
(d) Human Dignity and Disadvantage (pg. 40)
 the element of human dignity often led the court to omit any explicit analysis of whether the
claimant was truly disadvantaged by the challenged law
 one of the problems is that the concept of human dignity tends to absorb the question of
disadvantage, making it hard for the court to keep the two ideas distinct
 Kapp removed human dignity and replaced it with the concept of discrimination – but this
concept, too, has the tendency to absorb the requirement of disadvantage
(e) Group Disadvantage (pg. 42)
 in Andrews, all three opinions suggested that disadvantage or powerlessness was a characteristic
of the groups protected by s. 15
 systemic disadvantage and political powerlessness are essential characteristics of the groups
protected by s. 15 – prejudice against discrete and insular minorities could have the effect of
distorting those political processes ordinarily to be relied upon to protect minorities (that is to
say, that discrimination against minorities may reflect a flawed political process from which they
are effectively excluded)
 when judges strike down a discriminatory law, what they are really doing is removing
impediments to access to the democratic political process
 the range of discrete and insular minorities has changed, and will continue to change, with
changing political and social circumstances – membership in a disadvantaged group is not a
prerequisite, but merely an indicator or indicium of an analogous ground
 the important purpose of s. 15(1) in protecting individuals or groups who are vulnerable,
disadvantaged, or members of discrete and insular minorities should always be a central
consideration, however the claimant’s association with a disadvantaged group(s) is not per se
determinative of an impairment of human dignity
 a showing that the claimant is a member of a generally disadvantaged group will assist in
persuading the court that the legal distinction is discriminatory, however the claimant will have
to establish that the particular legal distinction rests on a listed or analogous ground and that it
impairs the claimant’s human dignity or is discriminatory
11. Direct and Indirect Discrimination (pg. 47)
(a) Substantive Equality (pg. 47)
 a law may be discriminatory on its face (direct discrimination) – formal equality is used to
indicate a theory of equality that covers only direct discrimination
 s. 15 includes direct discrimination and leads to the invalidity of a law that is discriminatory
on its face
 a law may be discriminatory in its effect (indirect discrimination) – indirect discrimination is
caused by a law that does not expressly employ any of the categories listed in s. 15 (or analogous
to those listed), if the law has a disproportionately adverse effect on persons defined by any of the
prohibited categories
 substantive equality is normally used to indicate a theory of equality that covers indirect as
well as direct discrimination
 because s. 15 includes substantive equality, it leads to the invalidity of a law that is
discriminatory in its effect
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 a law may be discriminatory in its application – this is another kind of indirect discrimination
and it is also a breach of substantive equality and of s. 15
 where a law is discriminatory only in its application, s. 15 will not lead to the invalidity of the
law itself; it will deny validity to past applications of the law, and will require that bias-
neutral procedures be established for its future administration
 Andrews made it so that s. 15 required substantive and not merely formal equality
 substantive equality is of great importance to equality-seeking groups such as women and
minorities who have generally achieved formal equality – it allows the court to drill beneath the
surface of a seemingly neutral law and identify adverse effects on a class of persons distinguished
by a listed or analogous personal characteristics
 it is not necessary to show that the law was passed with the intention of discriminating – the
mere fact that it does have a disproportionately adverse effect is enough
(b) Unintended Discrimination (pg. 49)
 indirect discrimination may be unintended – it may also be intended; however, intention is not an
ingredient of discrimination under s. 15
 the mere fact that the law has a disproportionately adverse effect on persons defined by a
prohibited category (along with an impairment of human dignity) is enough to establish a breach
of s. 15 (Eldridge v. British Columbia (1997))
 even direct discrimination may be unintended – regardless, discrimination need not be
intentional (Andrews)
 it is not necessary to show that the purpose of a challenged law is to impose a disadvantage on a
person by reason of a listed or analogous characteristic; it is enough to show that the challenged
law has this effect
 as is the case with the rest of the charter, a law is in breach of the charter right if either its
purpose or its effect is to abridge a charger right
 the purpose of the law, however, is relevant to the justification under s. 1 because a law
limiting a charter right cannot be justified under s. 1 unless it serves an important purpose
that is compatible with the values of a free and democratic society
(c) Reasonable Accommodation (pg. 51)
 although discrimination may be indirect and unintended, a law may have to make reasonable
accommodation for those who, for example by reason of religious affiliation or disability, are
discriminated against by otherwise neutral laws
12. Justification Under s. 1 (pg. 52)
 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 that laws that infringe other rights; however,
since Law imported human dignity into s. 15, it leaves no role for s. 1
 it is obviously hard to justify a law that imposes a disadvantage on the basis of a listed or
analogous ground and 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
 even the court’s retraction of human dignity in R. v. Kapp (2008) doesn’t restore the role of s. 1
because it substituted human dignity with discrimination which appears to be very similar thereto
13. Affirmative Action (pg. 53)
 s. 15(2) makes clear that s. 15 doesn’t preclude affirmative action or equity programs in favour of
disadvantaged individuals or groups
 if such programs were attacked on equality grounds by a person who was not a member of the
favoured (i.e.; disadvantaged) group, then s. 15(2) is the answer – provided the program meets the
conditions stipulated by s. 15(2), it cannot be attacked under s. 15
 s. 15(2) makes it unnecessary to go to s. 1 to save such laws
 different treatment in the service of equity for disadvantaged groups is an expression of equality, not
an exception thereto
 s. 15(1) prevents governments from discriminating; s. 15(2) enables governments to proactively
combat discrimination (R. v. Kapp (2008))
 if an affirmative action program meets the criteria of s. 15(2), then the program is valid under s.
15(2) and no s. 15(1) analysis is necessary
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 if an affirmative action program fails to meet the criteria of s. 15(2), then a s. 15(1) analysis
would have to be undertaken to determine whether it was discriminatory
 a program cannot be attacked under s. 15(1) if it targets a group identified by one of the listed or
analogous grounds in s. 15(1), so long as the group is disadvantaged, and the purpose of the
program is the improvement of the conditions of that group (R. v. Kapp (2008))
14. Discrimination Permitted by Constitution (pg. 56)
(a) Age in ss. 23, 29, 99 (pg. 56)
 one of the grounds of discrimination that is listed in s. 15 is age
 s. 23 (a person under the age of 30 cannot be appointed to senate), 29 (a senator must retire at
the age of 75), and 99 (a judge must retire at the age of 75) of the Constitution Act, 1867 impose
a burden by reference to age
 these provisions would be contrary to s. 15 and thus invalid (unless saved by human dignity of (s.
1) if they were contained in an official instrument other than the Constitution itself
(b) Race in s. 91(24) (pg. 56)
 s. 91(24) of the Constitution Act, 1867 confers on the federal Parliament the power to make laws
in relation to Indians, and lands reserved for the Indians
 laws enacted under s. 91(24) that employ the classification Indian (or have a disproportionate
impact on Indians or lands reserved for Indians) should not be vulnerable to attack under s. 15
 however, in Ermineskin Indian Band and Nation v. Canada (2009) the court said that a s. 15
challenge was available if the Indian Act imposed a disadvantage on Indians
(c) Religion in s. 93 (pg. 57)
 the religious education provisions of s. 93 of the Constitution Act 1867 raise similar issues to the
constitutional provisions for Indians
 in Ontario Separate School Funding case (1987), the court held that the charter rights cannot be
interpreted as rendering unconstitutional distinctions that are expressly permitted by the
Constitution Act 1867
 although the Charter of Rights was adopted later in time than the constitution Act 1867, it is not
to be read as impliedly repealing or amending the provisions of the Constitution Act 1867 that
may be inconsistent with the provisions of s. 15 or any other guarantee
 rather, s. 15 is to be read as qualified by the language of the Constitution Act 1867
(d) Province of Residence in ss. 91, 92 (pg. 59)
 the SCC has held that place of residence is not an analogous ground
 differences between provincial laws cannot amount to discrimination under s. 15 because that
would require a uniformity of provincial laws which would be inconsistent with the distribution
of legislative powers in s. 91 and 92
 the federal system operates as a qualification of s. 15 guarantee of equality
(e) Citizenship in s. 6 (pg. 59)
 the charter of rights itself contains some implicit qualifications of s. 15 guarantee of equality
 s. 6(1) guarantee to remain in Canada only applies to citizens
 the imposition of a burden on non-citizens that does not apply to citizens would normally be a
breach of s. 15, but in the case of the right to remain in Canada, this difference has been
specifically contemplated by s. 6(1)
 other than the right to remain in Canada under s. 6(1), laws imposing disabilities on non-citizens
have been held to be in breach of s. 15 (Andrews)
(f) Language in ss. 16-23 (pg. 60)
 another qualification of s. 15 is created by the language rights of s. 16 to 23 of the charter
 these implement a notion of equality of the French and English language – i.e.; they accord a
special status to French and English in comparison to all other linguistic groups in Canada
 although this would normally be a breach of s. 15, the difference in treatment is specifically
contemplated by s. 16 to 23 of the charter
15. Race (pg. 60.1)
 race, along with national or ethnic origin and colour, is one of the grounds of discrimination that is
expressly prohibited by s. 15
 a racial distinction would be upheld if the statute established an affirmative action program
within the terms of s. 15(2)
 it might also be upheld under s. 1 if the statute fell outside the terms of s. 15(2) but pursued a
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 to the extent that racial discrimination occurs in the private sphere, the remedy would be found
under the human rights codes, not the charter as the latter does not apply to private action
 the situation of the aboriginal peoples is a special one – the Constitution Act, 1867, by s. 91(24),
empowers the federal Parliament to make laws in relation to Indians, and lands reserved for the
Indians
 s. 15 only has a limited role to play with respect to aboriginal peoples
 a law enacted by the federal parliament under s. 91(24) for the benefit of Indian people, and
laws enacted to give effect to aboriginal or treaty rights are not affected by s. 15
16. Religion (pg. 60.2)
 religion is another ground of discrimination expressly prohibited by s. 15
 the public funding of schools of a religious denomination are provided for in s. 93 of the Constitution
Act, 1867 which guarantees the rights of the denominational schools that existed at the time of
confederation, and which authorizes the enlargement of those rights
 to the extent that a denominational school system is protected by s. 93, there is no s. 15
challenge open
17. Sex (pg. 60.3)
(a) Direct Discrimination (pg. 60.32)
 sex is another grounds of discrimination that is expressly prohibited by s. 15
 in Benner v. Canada (1997), a provision of the federal Citizenship Act that distinguished between
men and women was struck down under s. 15
 in regulating the citizenship status of persons born outside Canada before 1977, whereby a
person born to a Canadian father was automatically entitled to citizenship upon registration,
but a person born to a Canadian mother had to apply for citizenship and undergo a security
check
 the SCC held this was discrimination by sex, and in breach of s. 15 – and further that it could
not be justified under s. 1 as there was no rational basis to suppose that the children of
Canadian mothers required a more rigorous screening process than the children of Canadian
fathers
 in Newfoundland v. N.A.P.E. (2004), the province of Newfoundland enacted the Public Sector
Restrain Act, which delayed for three years the introduction of pay equity for female workers in
the hospital sector
 by postponing the implementation of that right, the Act singled out a group of women who
were being paid less than men who performed work of equal value and perpetuated their
disadvantage – this was discrimination on the ground of sex
 however, the court went on to hold that the Act was saved by s. 1 because it was in response
to a financial crisis in the province that provided justification for the limit on the claimants’
charter rights
(b) Systemic Discrimination (pg. 63)
 the raising of awareness of women in society has led to the removal of most provisions that create
formal inequalities between the sexes
 the few that remain will undoubtedly be reviewed by the courts under s. 15
 to the extent that discrimination against women takes place in the private sphere from which the
charter is excluded, any remedy would have to lie under the human rights codes
(c) Section 28 (pg. 64)
 s. 28 provides that the rights and freedoms referred to in the charter are guaranteed equally to
male and female persons
 all that s. 28 seems to require is that the other provisions of the charter be implemented without
discrimination between the sexes
 in a sense, s. 28 is a stronger guarantee than s. 15 in that (the three-year delay in the coming
into force of s. 15 (by virtue of s. 32(2)) didn’t apply to s. 28), the power of legislative override
(under s. 33) applies to s. 15 but not to s. 28, and it is possible that even the limitation clause (s.
1) does not qualify s. 28 considering s. 28’s opening words are “notwithstanding anything in this
Charter”
18. Age (pg. 65)
 age is another grounds of discrimination that is expressly prohibited by s. 15
 like the other grounds of discrimination, age is a personal characteristic that is immutable, in the
sense that it cannot be changed by the choice of the individual
 however, there are differences between age and the other named grounds of discrimination:
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 age is a characteristic shared by everyone


 a minority defined by age is much less likely to suffer from the prejudice of the majority than
is a minority defined by race or religion or any other characteristic that the majority has
never and nor will ever possess
 there is some correlation between age and ability; this is not true of race, national or ethnic
origin, colour, religion, or sex (although it is true of mental or physical disability)
 in regulating matters such as voting, drinking, marrying, will-making, driving, etc.,
disabilities on young people are imposed, employing age as a proxy for ability
 consent to medical treatment is one of the areas where legal disabilities are imposed on children
 in A.C. v. Manitoba (2009), (14-year old Jehovah’s Witness case), the court concurred that the Act
did make a distinction based on age, but that the distinction was not discriminatory because
children under 16 were a vulnerable group in need of protection
 in Law v. Canada (1999), the court upheld a law that denied a benefit to young persons (a surviving
spouse under the age of 35 was excluded from getting their spouse’s pension); although the law
imposed a distinction on the listed ground of age, the court held it was not discriminatory because it
did not impair human dignity
 in McKinney v. University of Guelph (1990), Harrison v. U.B.C. (1990), Stoffman v. Vancouver General
Hospital (1990), and Douglas/Kwantlen Faculty Assn. v. Douglas College (1990) a number of
university professors challenged the mandatory retirement policies of their universities – it was held
to be outside the scope of the charter because the universities and hospitals operate outside the
control of the government
 despite the fact that the charter did not apply to the universities or hospitals, the court went on to
examine the constitutionality of mandatory retirement in those institutions as if s. 15 did apply
and held that mandatory retirement was discrimination by age, and thus in violation of s. 15, but
that it was saved by s. 1
19. Mental or Physical Disability (pg. 71)
 mental or physical disability is another grounds of discrimination that is expressly prohibited by s.
15; like the other grounds, it is immutable in the sense that it cannot be changed by the choice of the
individual
 however, it may not be immutable in an absolute sense, if the disability may be curable
 unlike the other grounds, it is, by definition, an impairment in ability, and some legal restrictions
may property be predicated thereupon
 however, many disabilities can be accommodated
 thus, the rules that discrimination may be unintended, indirect, or require reasonable
accommodations are of special importance for this ground of discrimination
 in many cases, accommodations have been made for the special needs of disabled persons
 constitutional challenges have been brought up as to the appropriateness of the accommodations
– and have failed
 in Eldridge v. British Columbia (1997), the court held that the failure to provide deaf persons seeking
medical services with publicly-funded sign language interpretation was a breach of s. 15 because
communication was a crucial part of the provision of most medical services and so it was a denial of
equal benefit to deal people not to provide the assistance that would enable effective communication
to occur between a deaf patient and a hospital or doctor
 in Rodriguez v. British Columbia (1993), a plaintiff who suffered from a debilitating disease
challenged the constitutionality of the criminal code offence of assisting a person to commit suicide –
which had the effect of prohibiting the commission of suicide by a person who was so physically
disabled that she was unable to kill herself without assistance whereas able bodied persons were free
to commit suicide (and neither suicide nor attempted suicide is a criminal code offence) because they
could do so without assistance
 she argued that the prohibition was unconstitutional by virtue of s. 15
 the court held that even if this did result in an unconstitutionality, the prohibition would in any
case be justified under s. 1
20. Citizenship (pg. 76)
 citizenship is not a ground of discrimination that is expressly mentioned in s. 15 – however it is
analogous to those that are expressly mentioned therein
 in Andrews v. Law Society of British Columbia (1989), the SCC held that the requirement that a
person be a Canadian citizen as a qualification for admission to the bar was in breach of s. 15
and not justified by s. 1
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 it should be noted, however, that s. 6 guarantees to every citizen of Canada the right to remain in
Canada, and as such the statutory power of deportation can (and must) be limited to non-citizens
21. Marital status (pg. 77)
 marital status is not a ground of discrimination that is expressly mentioned in s. 15 but in Miron v.
Trudel (1995) it was held that it was analogous to those that are expressly mentioned
 there were concerns that the legal consequences that were attached to marriages would have to
be extended to common-law relationships, including same-sex relationships, and perhaps all
persons living together in relationships of mutual support and dependence without a sexual
aspect – otherwise the marital status distinction would cause an infringement of s. 15
 in Nova Scotia v. Walsh (2002), the matrimonial property law was challenged and the court accepted
that marital status was an analogous ground under s. 15 – however, the court denied that the law
treated unmarried cohabitants as less deserving of respect than married spouses since it was
premised on the assumption that only those who had made the choice to get married had committed
themselves to a relationship of such permanence that it would justify imposing on them the
obligations to contribute to and share in each other’s assets
 the mere choice of living together, without getting married, could properly be viewed by the
legislature as not sufficient to trigger the radical revision of property rights required by the
sharing of property regime
 the distinction drawn between legally married spouses and common law spouses corresponded to
real differences between the relationships and did not impair the dignity of common law spouses
22. Sexual Orientation (pg. 78)
 sexual orientation is not listed in s. 15 but it has been held to be a ground of discrimination that is
analogous to those listed in s. 15
 in Vriend v. Alberta (1998), the SCC held that Alberta’s human rights statute offended s. 15 by failing
to provide a remedy for a person who had been discriminated against by his employer on the basis of
sexual orientation – since the statute provided a remedy for discrimination in employment on the
basis of a host of grounds (including sex, age, race, religion, disability, and marital status), the
omission of sexual orientation was a denial of equal benefit of the law based on a ground analogous
to those listed in s. 15 and it was not saved under s. 1
 in M. v. H. (1999), the court held that exclusion of persons in same-sex relationships from the spousal
support obligations in Ontario’s family law legislation was unconstitutional on analogous grounds
under s. 15 – it was not saved under s. 1 because the goals of the legislation, which was to make
equitable provisions for the economically weaker spouse on the breakdown of a relationship and to
ease the burden on the public purse, were not advanced by the exclusion of same-sex couples
 the traditional definition of marriage, espoused by the common law, is the voluntary union for life of
one man and one woman, to the exclusion of all others – this reference excluded the possibility of
same-sex marriage and led to challenges by same-sex couples who wished to get married
 in 2003, the government changed its policy and introduced legislation defining marriage as the
lawful union of two persons to the exclusion of all others
23. Place of Residence (pg. 82)
 place of residence is not an analogous ground – it lacks the element of immutability that is common
to the listed grounds and is required for the analogous grounds
 apart from the special case of Indian reserves, the high level of personal mobility in Canada suggests
that the difficulties of changing one’s place of residence should not be regarded as so great as to
qualify place of residence as an analogous ground
 differences in the treatment of individuals that are caused by federalism must be able to be
accommodated by the charter of rights
 the federal distribution of powers is a fundamental characteristic of the Constitution of Canada and
differences between provincial laws are the inevitable outcome of the varying legislatures each
exercising extensive legislative authority, acting independently and accountable to a different local
population
 as such, unequal treatment which stems solely from the exercise of provincial legislators of their
legitimate jurisdictional powers cannot be subject to a s. 15(1) challenge on the basis only that it
creates distinctions based on province of residence (R. v. S. (S.) (1990))
 apart from any effect of the equality guarantee, there is no constitutional requirement that federal
laws must apply uniformly across the country, and in fact, many federal laws do not
24. Occupation (pg. 86)

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 occupation is not an analogous ground – it lacks immutability that is common to the listed grounds
and is required for the analogous grounds

Syllabus Cases:

1. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 (pg. 281)
Facts:
 the case was a challenge to the statutory requirement of the province of British Columbia that members
of the bar had to be citizens of Canada
Held:
 the requirement was contrary to s. 15, and it was not saved by s. 1 – citizenship qualified as an
analogous ground of discrimination
 there is a middle ground between the two theories (that s. 15 condemns all legislative classifications;
and that s. 15 condemns unreasonable or unfair classifications) that is to interpret discrimination in s.
15 as applying only to the grounds listed in s. 15 and analogous grounds – i.e.; enumerated and
analogous grounds approach
 this approach most loosely accords with the purposes of s. 15 and leaves questions of justification to
s. 1
 non-citizens were a group lacking in political power and as such vulnerable to having their interests
overlooked and their rights to equal concern and respect violated – non-citizens were an example
without parallel of a group who are relatively powerless politically and whose interests are likely to be
compromised by legislative decisions

2. R. v. Kapp, [2008] 2 S.C.R. 483 (pg. 284)


Facts:
 the (affirmative action) program issued was a special communal commercial fishing license which was
authorized by the federal Fisheries Act and available only to three Indian bands
 the members of the three bands authorized to fish for salmon for an exclusive 24-hour period before non-
aboriginal commercial fishing licences took effect had an aboriginal right to fish but only for food, and
not for sale – the license enlarged that right to include a right to fish for sale during the time stipulated
by the license
 commercial fishers who were not members of the three Indian bands held a protest fishery during the
time stipulated for the bands, and were charged with fishing while prohibited – they defended the charge
by arguing that the licence issued to the bands was unconstitutional that the privileged access granted by
the communal licence only to aboriginal fishers constituted discrimination on the ground of race
 the crown argued that the purpose of the communal license was to improve the conditions of
disadvantaged groups
Issues:
 is the communal fishing license constitutional
Held:
 the communal licence is constitutional based on s. 15(2) – although the communal licence program was
indeed restricted by race (which is a listed ground in s. 15(1), the program had as its object the
betterment of conditions of the three Indian bands which are a disadvantaged group)
 the program is thus covered by s. 15(2) and it is not necessary to engage s. 15(1) analysis to conclude
that the program is not in breach of the equality guaranteed by s. 15(1)

3. Withler v. Canada (Attorney General), 2011 SCC 12


Facts:
 the appellants were widows whose federal supplementary death benefits were reduced because of their
husbands’ ages – they submitted that the age based benefit reduction, which was part of a statutory
death benefit scheme for certain federal government employees, violated s. 15 of the charter
Held:
 the court emphasized that s. 15 only prohibits substantive discrimination based on grounds set out
therein, or on an analogous ground – substantive discrimination can be made out by showing that the
impugned law, in purpose of effect, perpetuates prejudice and disadvantage to members of a group on
the basis of personal characteristics found in s. 15(1)
 the focus of s. 15 analysis is the actual impact of the differential treatment, and therefore the analysis
requires a contextual consideration of the impact of the legislation or state action

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 the focus must be on the nature of the benefit


 the age based benefit reduction did not breach s. 15 – the scheme was designed to benefit a number of
different groups, and the reductions reflected the reality that different groups of survivors have different
needs

20. REMEDIES
Constitution Act, 1982, s. 24, s. 52 (pg. 288)
 s. 24 says that anyone whose rights or freedoms, as guaranteed by the charter, have been infringed or
denied, may apply to a court of competent jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances
 s. 52(1) says that the Constitution of Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or
effect

Hogg. Chapter 40. “Enforcement of Rights”


1. Supremacy Clause (pg. 2)
(a) Section 52(1) (pg. 2)
 s. 52(1) of the Constitution Act is the supremacy clause – it is what gives the charter an
overriding effect
 since the charter is part of the constitution of Canada, any law that is inconsistent with it is of
no force or effect
 s. 52(1) also provides an explicit basis for judicial review of legislation in Canada since it
inevitably falls to the courts to determine whether or not a law is inconsistent with the charter
(b) Section 24(1) Compared (pg. 3)
 the effect of the supremacy clause (s. 52(1)) is to preserve all pre-existing remedies for
unconstitutional action and to extend those remedies to the charter of rights
 in addition, the charter contains its own remedy clause (s. 24(1))
 s. 24(1) authorizes a court of competent jurisdiction to award a remedy for breach of the
charter
 s. 24(2) authorizes a court of competent jurisdiction to exclude evidence obtained in breach
of the charter
 the differences between s. 24(1) and s. 52(1):
 s. 24(1) is applicable only to breaches of the charter of rights – s. 52(1) is applicable to the
entire constitution of Canada, including the charter of rights
 s. 24(1) is available only to a person whose rights have been infringed – s. 52(1) is available
in some circumstances to persons whose rights have not been infringed
 s. 24(1) may be applied only by a court of competent jurisdiction – s. 52(1) may be applied
by any court or tribunal with power to decide questions of law
 s. 24(1) authorizes the award of a wide range of remedies – s. 52(1) appears to authorize
only a holding of invalidity, leaving it to the general law to authorize the particular remedy
 s. 24(1) confers a discretion on the court as to whether any remedy should be awarded – s.
52(1) appears to confer no discretion to the court, requiring the court to make a holding of
invalidity if it concludes that a law or act is inconsistent with the constitution
 in charter cases, the courts have developed six variations on a simple declaration of invalidity
under s. 52(1) :
 each of these remedies is authorized by the supremacy clause of s. 52(1) and does not
require the authority of the remedy clause of s. 24(1):
 nullification – striking down (declaring invalid) the statute that is inconsistent with the
Constitution
 temporary validity – striking down the statute that is inconsistent with the Constitution,
but temporarily suspending the coming into force of the declaration of invalidity
 severance – holding that only part of the statute is inconsistent with the constitution,
striking down only that part and severing it form the valid remainder
 reading in – adding words to a statute that is inconsistent with the constitution so as to
make the statute consistent therewith and valid
 reading down – interpreting a statute that could be interpreted as inconsistent with the
constitution so that it is consistent therewith

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 constitutional exception – creating an exemption from a statute that is partly


inconsistent with the constitution so as to exclude from the statute the application that
would be inconsistent therewith
(c) Nullification (pg. 4)
 s. 52(1) (the supremacy clause) stipulates that any law that is inconsistent with the provisions of
the constitution is, to the extent of the inconsistency, of no force or effect
 as such, a court is required to hold that an unconstitutional law is invalid
 if a law is found by a court to be inconsistent with the charter of rights, the court is obliged to
strike the law down
 the effect of such a holding is that the litigation will be determined as if the unconstitutional law
did not exist
(d) Temporary Validity (pg. 4)
 although s. 52(1) requires a court to hold that an unconstitutional statute is invalid, the courts
have assumed the power to postpone the operation of the declaration of invalidity
 in effect, it grants a period of temporary validity to an unconstitutional statute because the
statute will remain in force until the expiry of the period of postponement
 an immediate declaration of invalidity would leave a gap in the law for the period required to
draft and enact new legislation – and the preservation in force of an unconstitutional law is
preferable to the legal void that would be left otherwise
 in Schachter v. Canada (1992), the court found that this remedy, however, maintains in force a
statute that has been found to be unconstitutional, and is a serious interference with the
legislative process because the delayed nullification forces the matter back onto the legislative
agenda at a time that is not of the choosing of the legislature and within time limits under which
the legislature would not normally be forced to act
 for these reasons, the court said, it is preferable for the court to rectify the statute by
severance or reading in where those remedies are appropriate
 where those remedies are not appropriate, however, and a declaration of invalidity has to
be made, then the court could provide for a temporary suspension of the declaration of
invalidity in certain cases (i.e.; in cases in which the immediate striking down of the
legislation would):
 pose a danger to the public
 threaten the rule of law
 or result in the deprivation of benefits from deserving persons
 these guidelines have essentially limited the court’s use of suspended declarations of
invalidity to exigent situations where danger, disorder, or deprivation would be caused by an
immediate declaration of invalidity
 subsequent cases have largely ignored the Schachter guidelines because a new rationale has
developed for the suspended declaration of invalidity: in many cases where the court has found a
law to be unconstitutional, the court would prefer the legislature to design the appropriate
remedy
 if the legislature chooses to take no action during the period of suspension, the court’s
declaration of invalidity will take effect
 but the period of suspension gives the legislature the first opportunity to remedy the
constitutional wrong
(e) Severance (pg. 12)
 severance is the appropriate remedy when only part of the statute is held to be invalid, and the
rest can independently survive
 in such a case, the court will hold that the bad part of the statute should be struck down and
severed from the good part, thereby preserving the part that complies with the constitution
 severance occurs in most charter cases because it is unusual for a charter breach to taint a
statute in its entirety
 severance is not designed to alter the meaning or effect of the remainder of the statute that
survives as it does so on its own merits
 however, there are times when severance has, indeed, altered the meaning or effect of a
statute
 e.g.; Benner v. Canada (1997) – case of children born to Canadian mothers outside of
Canada having more stringent rules for Canadian citizenship than those born to
Canadian fathers outside of Canada
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 in such cases, words/phrases were deleted from a statutory provision that were integral to
the operation of the provision – the remainder of the provision could survive only because it
had been altered by the court’s deletion of the severed words
 such provisions were invalid as they were enacted by parliament, and could only be upheld
after the court had amended them
(f) Reading In (pg. 15)
 in Schachter v. Canada (1992), the court held that it possessed the power not only to sever
language from a statute, but also to read in new language if that were necessary to remedy a
constitutional defect
 the rationale is that if severance allows the court to delete something improperly included in a
statute, it seems appropriate to allow the court to add something improperly excluded
 Schachter further went on to say that reading in would be a legitimate remedy akin to severance
despite the fact that it involved adding to a statute words that had never been enacted by
parliament – that reading in would be appropriate only in the clearest of cases, meaning cases
where:
 the addition of the excluded class was consistent with the legislative objective
 there seemed to be little choice as to how to cure the constitutional defect
 the reading in would not involve a substantial change in the cost or nature of the legislative
scheme
 the alternative of striking down the under inclusive provision would be an inferior remedy
 in Vriend v. Alberta (1998), the court agreed that the omission of sexual orientation from the
Individual Rights Protection Act was a denial of the plaintiff’s equality rights under the charter
and ordered that the constitutional defect be cured by reading into the statutory list of grounds
of prohibited discrimination the words sexual orientation
 although reading in (like severance) is a serious intrusion by the courts on the functions of the
legislative branch of government, the alternative of striking down the unconstitutional legislative
scheme is also very intrusive
 both remedies (i.e.; severance and reading in) are somewhat temporary as it is always open
to the competent legislative body to enact a new legislative scheme if the legislators are not
content with the scheme as amended by the court
(g) Reading Down (pg. 18)
 reading down is the appropriate remedy when a statute will bear two interpretations, one of
which would offend the charter of rights, and the other of which would not – in that case, the
court will hold that the latter interpretation, which is generally the narrower one, is the correct
one
 reading down involves giving a statute a narrow interpretation in order to avoid a constitutional
problem that would arise if the statute were given a broad interpretation
(h) Constitutional Exemption (pg. 19)
 the SCC has occasionally said in passing that it might be willing to grant a constitutional
exemption from otherwise valid legislation that would be unconstitutional in its application to
particular individuals or groups
 constitutional exemption is creating an exemption from a statute that is partly inconsistent
with the constitution so as to exclude from the statute the application that would be
inconsistent therewith
 the advantage of constitutional exemption is that it enables the court to uphold a law that is valid
in most of its applications by creating an exemption for those application that would offend the
charter
 the disadvantage of the constitutional exemption is that its scope must be defined by the court
and the task of definition is likely to involve choice among a range of equally constitutional
solutions – and that is the kind of choice that should be made by the legislative body itself
 an example of constitutional exemption has to do with minimum sentencing – the SCC has held
that if a minimum-sentence law is grossly disproportionate in any of its applications, howsoever
rare, exceptional, or unusual, the duty of the sentencing court is to strike down the law – the
overbroad law cannot be salvaged by creating a constitutional exemption for the particular rare
case
 if the courts assumed the power to grant constitutional exceptions from the minimum
sentence, the effect would be to read in a discretion to a provision where parliament clearly

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intended to exclude discretion, and this would be an inappropriate intrusion into the
legislative sphere
 the fear with constitutional exemptions is that as constitutional exemptions are granted, the law
in the statute book would increasingly diverge from the law as applied
(i) Reconstruction (pg. 22)
 the general rule is that courts may not reconstruct an unconstitutional statute in order to render
it constitutional
 that is the general rule – however, techniques of temporary validity, severance, reading in,
reading down, and the constitutional exemption should be seen as exceptions thereto
 there are times when a court will recognize that an unconstitutional statute cannot be salvaged
except by changes that are beyond those that can be carried out by a court – furthermore,
caution should be exercised by non-elected courts in fashioning new laws (it is the responsibility
of the elected legislative bodies to enact new laws)
 the general rule prohibits a court from reconstructing an unconstitutional statute – it is the
legislature’s responsibility to enact legislation that embodies appropriate safeguards to comply
with the constitution’s requirements (Hunter v. Southam (1984))
 there is one exception (being a rare case) to the rule that a court will not redraft a law in order to
bring it into compliance with the charter – where the offending law is a rule of the common law
(j) Limitation of Actions (pg. 26)
 an action/proceeding for a declaration that a statute is unconstitutional is not subject to any
limitation period
 no matter how long ago the challenged statute was enacted, if the reviewing court holds it to be
unconstitutional, then it will be declared as such from its inception
 however, if the plaintiff needs additional relief, such as damages or injunction, those personal
remedies, even if based on constitutional grounds, will be subject to any applicable statute of
limitation of general application
2. Remedy Clause (pg. 27)
(a) Section 24(1) (pg. 27)
 s. 24(1) provides for the granting of a remedy to enforce the rights or freedoms guaranteed by
the charter
(b) Applicable to the Charter Only (pg. 27)
 s. 24(1) is available only for a breach of the charter – it is not a remedy for unconstitutional
action in general; breaches of other parts of the constitution of Canada may only be challenged
by the traditional methods (i.e.; by way of the supremacy clause, s. 52(1))
(c) Non-Exclusive Remedy (pg. 27)
 although s. 24(1) is only available for a breach of the charter, it is not the case that it is the only
remedy available for a breach of the charter rights
 the supremacy clause of s. 52(1), which renders of no force or effect any law that is inconsistent
with the constitution of Canada, also authorizes a court to hold that a law that abridges a
charter right is invalid
(d) Standing (pg. 29)
 standing to apply for a remedy under s. 24(1) is granted to anyone whose charter rights have
been infringed or denied
 this imposes a stricter requirement of standing than are applicable to many remedies under the
general law – s. 24(1) contemplates that it is the applicant’s own rights that have been infringed
or denied in order for there to be cause for a suit
(e) Apprehended Infringements (pg. 30)
 s. 24(1) stipulates that the applicant’s rights have been infringed or denied, meaning that the
infringement/denial has occurred at the time of the application – s. 24(1) does not authorize an
application in respect of a merely apprehended future infringement
 although, the imminent threat of a charter violation will satisfy s. 24(1)
(f) Court of Competent Jurisdiction (pg. 32)
 s. 24(1)’s remedies may be granted only by a court of competent jurisdiction (by contrast, s.
52(1) is not restricted to a court of competent jurisdiction, but is possessed by any court or
tribunal with the power to decide questions of law before which the validity of the law is brought
into contention)
 the phrase court of competent jurisdiction does not limit the range of remedies available under s.
24(1)
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(g) Range of Remedies (pg. 35)


 although the phrase court of competent jurisdiction does not limit the range of remedies
available under s. 24(1), s. 24(1) does limit the range of remedies by the phrase such remedy as
the court considers appropriate and just in the circumstances
 subject to the important qualification that a remedy must be appropriate and just in all the
circumstances of the case, there is no limit to the remedies that may be ordered under s. 24(1)
(g1) Declaration (pg. 37)
 the declaration is a remedy that declares the legal position, but does not actually order the
defendant to do anything
 however, a simple declaration that the government is in default of its charter duties would
almost invariably be obeyed, and thus be an effective remedy
 it is especially appropriate if the court is not sure what would be the appropriate remedial action
by the government and is content to leave that choice thereto
 in Canada v. Khadr (2010), the court recognized that the making of representations to foreign
governments was a complex matter upon which the courts should generally defer to the executive
branch
 the court granted only a declaration that the accused’s charter rights had been infringed,
thereby leaving to the government a measure of discretion in deciding how to best respond
(g2) Damages (pg. 38)
 an award of damages is sometimes an appropriate and just remedy for a breach of the charter
 in Vancouver v. Ward (2010), the court held that damages should be awarded under s. 24(1) –
damages were an appropriate and just remedy for a breach of the charter when they served a
useful function – that function was threefold:
 to not only compensate the plaintiff for loss
 but also to vindicate charter rights
 and to deter future charter breaches
 because vindication and deterrence pursue societal goals, charter damages under s. 24(1) would
not necessarily be the same as common law damages (which are purely compensatory) – even
when there is no loss suffered, damages might be appropriate and just under s. 24(1)
 even when damages are functionally required to fulfil one or more of the objectives of
compensation, vindication, or deterrence, there could be countervailing considerations (e.g.;
availability of alternative remedies; and concern for effective governance) that would render an
award of damages inappropriate and unjust (Ward)
 the action for charter damages under s. 24(1) is commonly described as a constitutional tort
(American terminology), although it is not really a species of tort (i.e.; not a private law action in
the nature of a tort claim), but more of a unique public law remedy
 for one thing, the charter action lies against the state and not against individual actors
 since individual actors are not bound by the charter, they are not liable for damages
under s. 24(1)
 and also, the crown is not vicariously liable for their charter breaches – the crown is
liable directly for breaches of the charter
 another distinction between the public law remedy under the charter and the private law
remedy of tort is that the quantum of damages may differ
 in assessing charter damages, vindication and deterrence must be taken into account,
and these could justify a damages award where no loss cognizable by the common law
had been suffered
 still, the phrase constitutional tort can be used because the adjective “constitutional” signifies
the existence of some distinctions from the private law of tort
(g3) Costs (pg. 41)
 the award of costs is sometimes an appropriate and just remedy for those charter breaches that
cause inconvenience or delay to a litigant
 costs awards are restricted to circumstances of marked and unacceptable departure from the
reasonable standards expected of the prosecution (R. v. 974649 (2001))
(g4) Exclusion of Evidence (pg. 41)
 evidence that has been obtained in breach of the charter may be excluded as a remedy for the
charter breach
 this remedy is regulated by s. 24(2) which provides that the evidence shall only be excluded if its
admission would bring the administration of justice into disrepute

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 evidence that has been obtained in compliance with the charter is not covered by s. 24(2), and
yet in some situations, the exclusion of the evidence will be an appropriate and just remedy under
s. 24(1)
 because the exclusion of relevant evidence impairs the truth-seeking function of a trial, the
normal remedy for a crown default should be an adjournment of the trial to give the defence
time to consider the evidence
 the exclusion of evidence should be ordered only in exceptional cases affecting the fairness of
the trial or the integrity of the justice system
(g5) Remedies Outside s. 24(1) (pg. 43)
 it is not always necessary for a court to rely on s. 24(1) to remedy a charter breach
 (the implication of the decision in R. v. Nasogaluak (2010) is that) s. 24(1) is a remedy of last
resort, to be invoked only where a charter breach cannot be remedied by the application of the
general law
(h) Supervision of Court Orders (pg. 44)
 in Doucet-Boudreau v. Nova Scotia (2003), the court pointed out that the charter was supposed
to receive a large and liberal construction, and this applied to the remedial power of s. 24(1) no
less than it did to the substantive rights
 s. 24(1) authorized a court of competent jurisdiction to grant the remedy that is appropriate
and just in the circumstances
 remedies under s. 24(1) can include novel and creative features when compared with
traditional and historical remedial practices
 a supervisory order should be a remedy of the last resort, to be employed only against
governments who have refused to carry out their constitutional responsibilities
 the court’s function is to find the facts, apply the law to those facts, and order the defendant to
rectify any wrong – after that, no legal issue remains, only the practical details of
implementation, and that is a function of the executive
 to the extent that judicial supervision is intended to put pressure on the executive to
implement the orders, the task is akin to that of the political opposition, and can easily draw
the courts into political conflict
(i) Appeals (pg. 42)
 s. 24(1), in and of itself, does not authorize an appeal from the decision of a court of competent
jurisdiction (Mills v. The Queen (1986))
 the existence of a right to appeal will depend upon the rules of the court to which the s. 24(1)
application was made
 where there is no existing right of appeal, there will be no appeal from the charter ruling by
the court of competent jurisdiction
(j) Limitation of Actions (pg. 4-)
 where proceedings are brought (whether under s. 24(1) or under the general law) for a personal
remedy, statutes of limitation of general application will apply to the proceedings
 constitutional claimants cannot be liberated from the rules of practice and procedure of the
court in which a claim is made, despite the fact that a failure to comply with the rules will
sometimes defeat the proceedings
3. Administrative Tribunals (pg. 43)
(a) With Power to Decide Questions of Law (pg. 43)
 in Douglas/Kwantlen faculty Association v. Douglas College (1990), a court held that an
arbitration board, which was empowered by statute to decide questions of law, had the power to
determine the constitutionality of a mandatory retirement provision in the collective agreement
 the court said that a tribunal must respect the constitution so that if it finds invalid a law that
it is called upon to apply, it is bound to treat it as having no force or effect
 where an administrative tribunal decides a constitutional question, its decision will be subject to
judicial review by a superior court – nevertheless, the tribunal’s initial determination of the
constitutional question is likely to make a useful contribution to the ultimate resolution of the
issue as the tribunal’s expert knowledge of the regulated field is likely to produce a well-informed
assessment of the strength of the constitutional arguments
 the standard of judicial review is correctness – when a superior court reviews the decisions of a
tribunal on a constitutional issue, the court should not defer to the decision of the tribunal, even if
the tribunal had made a reasonable interpretation of the constitutional text

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 the superior court must decide the constitutional question in a way that it believes to be
correct
 the SCC has insisted that the administrative tribunal has no power to make a declaration of
invalidity – since a tribunal’s decision is not a binding precedent, a decision by a tribunal that a
law is unconstitutional is no more than a decision that the law is inapplicable in that particular
case
 only superior courts have the power to issue binding declarations of invalidity that will
invalidate a law with general effect
 tribunals cannot apply laws that are contrary to the charter of rights
 with regards to whether a tribunal is excluded from deciding certain cases because they may fall
under the various heads of power as distinguished between the federal head of power and/or
provincial head of power as set out by the Constitution Act, 1867, the court has held that
adjudication (which is what a tribunal would be doing) is distinct from legislation ( Paul v. British
Columbia (2003))
 in this case, the commission was not granted the power to alter or extinguish aboriginal
rights, it was only granted the power to determine whether or not those rights existed
(b) Without Power to Decide Questions of Law (pg. 47)
 administrative tribunals that lack the power to decide questions of law also lack the power to
refuse to apply laws on the ground of unconstitutionality
 most administrative tribunals with adjudicative functions will possess the power to decide
questions of law – the power to decide normally carries with it the implicit power to determine all
issues of fact or law that are needed to reach a decision
 where that is the case, s. 52(1) of the constitution act, 1982 requires the tribunal to resolve
any constitutional issues that affect the validity or applicability of any relevant law
(c) Preliminary Inquiry Judge (pg. 57)
 in R. v. Seaboyer (1991), the SCC held that a judge presiding at the preliminary inquiry had no
jurisdiction under s. 52(1) to determine the constitutionality of the law
 the court acknowledged that the judge would have the power and duty to rule on the
admissibility of the evidence presented at the inquiry, but that this power did not extend to
determining the constitutionality of the law – he has to accept the laws as they stand
 any charter challenge as to the unconstitutionality of the law would have to await the
trial, where the trial judge would be permitted to look at the constitution of Canada as
part of the body of law to be applied
 however, as Paul v. British Columbia (2003) and Nova Scotia v. Martin (2003) have pointed out,
the power to decide questions of law raises the presumption that the decision maker also has the
power to determine the constitutionality thereof
4. Scrutiny by Minister of Justice (pg. 58)
 the charter of rights makes no provisions of the pre-enactment scrutiny of proposed statutes and
regulations to ensure that they comply with the charter
 the Canadian Bill of Rights imposes an obligation of scrutiny on the Minister of Justice – this includes
an obligation to report any inconsistencies between the Bill of Rights and a proposed statute or
regulation
 the Department of Justice Act requires that the Minister of Justice’s scrutiny and report encompass
compliance with the charter as well as with the Bill of Rights
5. Legislative Enforcement (pg. 58)
 the federal parliament and provincial legislatures are free to make whatever provisions they choose
for the better enforcement of the charter rights
 the charter itself, however, does not confer any new legislative powers – in fact, s. 31 declares
that nothing in the charter extends the legislative powers of anybody or authority
 enforcement of the charter is the function of the courts, by virtue of s. 52(1) or s. 24

Syllabus Case:

Vriend v. Alberta, [1998] 1 S.C.R. 493 per Iacobucci J. Paragraphs 129-179


Facts
 The appellant was fired from his employment at Catholic college because of his homosexuality
 He attempted to file a complaint with the Alberta Human Rights Commission but could not do so
because the Individual’s Rights Protection Act did not include sexual discrimination as prohibited
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grounds for discrimination


• The appellant then began legal proceedings arguing that the Act violated s.15 of the Canadian
Charter of Rights and Freedoms
• The trial judge declared the Act to be unconstitutional and extended its protection to discrimination
on the basis of sexual orientation
• The decision was overturned by the Alberta C.A
Issues 1. Did the Alberta Individual’s Rights Protection Act violate s.15 of the Charter?
2. Was this violation justified under s.1 of Charter?
Holding:1. Yes 2. No; The appeal was allowed
Ratio [We are only interested in this case on the issue of remedies]
• Cory and Iacobucci JJ agreed that using the tools given by s.52 of the Charter and reading in sexual
orientation as a prohibited grounds for discrimination into the Act was the best remedy for the
Charter violation
• Case law had established that before choosing this remedy, the court must take into consideration
the principles of respect for the role of the legislatures and the respect for the Charter
o With respect to the former, reading in would minimize the inference with the Alberta’s legislature
goal as set out in the Act of protecting inherent dignity and inalienable rights
• Striking down the relevant section of the Act would have deprived all Albertans of human rights
protection, which would have constituted as excessive intrusion into the legislative scheme
o With regards to the later principle, reading in sexual orientation was consistent with the purposes of
the Charter, while striking down the impugned sections would have been contrary to it
• With respect to remedial precision before adopting a reading in remedy, the expression “sexual
orientation” is easily discernible in everyday language
• Budgetary repercussion would not be sufficiently significant in this case to avoid reading in the
remedy
• As for the effect of reading in with the thrust of the legislation, it was reasonable to assume that the
legislature would have preferred to include sexual orientation in the Act than to have no human
rights legislation at all
• Reading in did not interfere with the legislative objective nor with democratic principles
Democracy involves more than majority rule and interference is warranted where the interest of
minorities has not been considered
• There were also provisions, such as s.33, to allow the legislature to legislature to override the reading
in
• Major J dissented on the remedy issue and believed it would have been better to declare the impugned
sections of the Act unconstitutional and suspend the declaration of invalidity for one year
• In his view, the legislature’s exclusion of sexual orientation as grounds for discrimination was clearly
intentional and it would inappropriate to assume that the legislator would have remedied such
under-inclusiveness by extending protection to the excluded group
• Courts should only dictate to amend under-inclusive legislation in the clearest of cases

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