Any time there is a challenge to legislation (usually that it is ultra vires), the court conducts a pith and substance

analysis. There are 3 stages to the test (Starr v. Holden):

1. what’s the matter/dominant feature of the law 2. what’s the purpose and effect of the legislation 3. what’s scope of the applicable head of power
There are 5 factors that aid in the pith and substance analysis (Morgentaler):
1. penal consequences 2. severity of the penalty 3. timing and history of the legislation 4. legislative debates/Hansard evidence 5. evidence that legislation will fulfill objectives
 Morgentaler, Westendorp: pith and substance showed ultra vires provincial jurisdiction
To defend an accusation of ultra vires, a province will say that the encroachment on federal govt is necessarily incidental (the dominant pith and substance fits within the correct
head of power and other parts of the legislation overflow but incidental to the main purpose) – not watertight compartments as Lord Atkin said (unrealistic). Goes both ways.
3 stage test to see whether impugned legislation is necessarily incidental (GM of Canada):
1. is the whole act valid within the appropriate head of power? 2. if yes does the impugned provision intrude into the other head? 3. if yes can the provision and intrusion be
justified because it is connected to a valid legislative scheme?
 Morgentaler, Westendorp : necessarily incidental argument failed; Banks : arg passed since safety of roads
When subjects which in one aspect and for one purpose fall within s92 and for another purpose/aspect can fall within s91 this is the double aspect doctrine (allowing overlap of
heads of power). Lederman: judges use it when contrast btw heads of power not too sharp, roughly equal in importance and no evidence of smokescreen by govt. Fluider system.
If both acts are valid under their own head of power and do not conflict, they will be let alone. But if conflict, double aspect is an issue (McCutcheon). E.g. both fed and prov can
regulate on environmental issues.
 Mangat: Banks: double aspect confirmed; provincial legislation valid; potential for more conflict in future
Interjurisdictional immunity only applies to provincial legislation that affects federal entities. One-way principle.
Prov. legislation is not struck down, it stays valid but will not apply to a federal entity. Fed. Entity is immune from it.
2 branches: 1. directly affects federal work/undertaking: if the prov leg directly affects the ‘unassailable core’ of the federal work then prov leg does not apply to federal
work/undertaking (Bell #2). Fed working is immune from the leg.
2. indirectly affects federal work/undertaking: prov leg must sterilize/paralyze the core of the federal leg/undertaking to keep it immune from the prov leg (Irwin Toy).
 McKay: prov leg not valid for fed elections,1st case though not explicit; Bell Canada #2: fed mgmt/operation affected
Canadian Pacific: fed work given no immunity but no explanation ; Irwin toy: indirect branch ---(reigning in doctrine)
Paramountcy is a doctrine that gives the fed govt the ultimate power if there is conflict between fed and prov leg. In that case the prov leg is suspended to the extent of the conflict
but operational otherwise. If fed leg removed, prov leg becomes fully operational again. If legs overlap & no conflict, if one is just stricter then both can operate simultaneously
(Ross). Conflict is when complying with one leg involves breach of another – in this case comply with fed leg (McCutcheon). Hall added the element of legislative purpose into
the test for paramountcy (initially just conflict and ability to comply with one without breaching other) – does the prov leg frustrate the leg purpose of fed leg? if yes, fed rules
New test for paramountcy (Rothman’s): 1. does the purpose of the prov law frustrate the fed purpose? If yes, then it is a paramountcy issue and the fed law will prevail. If no, if
enhance fed purpose, skip to 2nd stage 2. if the purpose is not frustrated is there a direct conflict (use Ross & multiple access)
DIVISION OF POWER
Parsons: s91 and s92 were intended to deal with distinct subjects for the most part. Confederators did not intend that subjects in s92 was also to be handled by feds. Trade and
commerce defined: political arrangements and sanctions regarding trade, interprovincial trade and regulation of trade affecting dominion. S91(2) does not mean feds can regulate a
particular business or trade such as insurance within a single province. Insurance valid under s92(13) as is today. Trade and commerce power narrowed because broad
interpretation would give feds power over virtually every aspect of economics.
Russell: talked about pogg for 1st time and called it ‘general power’ of feds. Pith and substance shows that temperance does not fall within any head of prov power. Does not want
to define property and civil right stoo widely as that would usurp some fed power. Despite opt-in, Canada Temperance Act is a national program. Since cant find a place in s92,
must fit in s91. Could be pogg, criminal law, etc but that does not have to be decided. Evil existing through entire dominion so enough to ground the program and law within s91,
hence intra vires feds.
Hodge: Ontario act regulating alcohol, big issue of whether double aspect possible in regulation of alcohol; court says yes; since Ontario has not opted into the Canada temperance
act and only has a provincial act, there is no conflict btw fed and prov leg.; both feds and provs have residual powers (pogg wording and closing words of s92(16)
Local Prohibition Reference: earliest attempt to understand pogg; even local matters can become matters of national concern & give feds leg power; reshaped Russell by saying
in that case Canada Temperance was valid under pogg; in Russell court said no prov head of power to deal with alcohol prohibition but here they say the prov leg is ok as long as
there is no opt in (since no conflict with fed leg). If there were to be an opt in, the fed leg would govern due to pogg and paramountcy
AG On v. AG Can: fed and prov both had laws related to liquor; court said both laws could exist simultaneously (fed law not mandatory) but if conflict (only if fed law adopted!)
arose then the fed law would be supreme; till then prov leg was valid
Board of Commerce Reference: acts passed to limit abuse by monopolies; privy said acts ultra vires the dominion since they interfered seriously with property and civil rights of
provinces (s92(13) reserved exclusively to provs) and were not passed in highly exceptional circumstances such as war/famine which might bring the acts within general power of
s91
Fort Frances: fed leg restricted newsprint during war & continued it after; privy said not up to courts to get involved in executive decisions about aspects related to war & the need
to continue past war; but said might be some instances where the wartime emergency and wartime aspect is no longer in place and leg must be revoked (judicial restraint in this
case though)
Snider: feds passed a law related to industrial relations (a matter of civil rights); hence ultra vires fed per s92; just because a law is for the benefit of the country does not give the
feds to disregard the enumerated heads of the Const; power to regulate trade and commerce does not give feds the right to regulate property and civil rights of a province
Eastern Terminal Elevator: Canada grain Act enabled the board to be paid from profits of the elevators for excess grain held in the elevators; Duff says act is an attempt to
regulate operation of the elevators; feds do not have power to interfere in operation of particular provincial enterprises just because the product is exported outside of prov; lack of
a regulatory scheme within prov does not give feds power to enact regulatory scheme; court gave feds an out and said feds could claim jurisdiction by using s92.10 to take control
over local works and that is what the feds did
DEPRESSION AND NEW DEAL
Aeronautic Reference: intl convention on air travel; not in any head of power; s132 gives fed power to perform obligation under treaties made on Canada’s behalf; suggestion that
things that are not covered in either s91 or s92 should fall within pogg (language suggestive of national concern branch); hint that pogg should be used to fill in gaps of the Const
Radio Reference: global convention about radio; Canada itself signatory so s132 can’t be used here; if Canada enters into a treaty or convention and that is done by the executive,
that gives feds the power to legislate in that area; once the treaty is ratified, pogg power gives the feds the power to legislate in that area
Labour Conventions: intl labour convention; complete turnaround from radio ref ruling; court says feds cant make promises to foreign countries and give itself leg power over
provs that way; to enforce conventions only appropriate federal or prov heads of power must be used; court moving from increased fed power to more traditional s91/92 split
Unemployment Insurance Reference: amendment was needed to allow feds to participate in UI scheme
Natural Products: pogg is to be used only in a state of emergency; duff seems to be combining 2 prongs into 1; pogg moves back into being emergency despite aeronautic ref
***new deal legislation mostly ultra vires because courts said the depression was not an emergency and they had said pogg only applied in case of emergency: feds smart in
splitting up new deal leg into separate acts; but court realized that giving pogg too much scope could limit prov power; privy decisions triggered strong reactions from cdn public
POGG
National concern: (Russell)
Emergency only: extraordinary peril to national life (Fort Frances, Snider, Board of Commerce, Russell reformulated);
Pogg cannot apply, overreaching: (Labour Conventions, Unemployment insurance, Natural Products)
Emergency became the only way to use pogg but then re-emergence of the national concern doctrine (Canada Temperance)
Can. Temperance Federation: national concern doctrine given modern formulation; true test is subject matter of legislation – if it goes beyond prov concern and must from its
inherent nature be part of the dominion then it falls within the competence of the parliament as a matter affecting pogg of Canada; Viscount Simon reaffirmed validity of Russell
decision & rejected suggestion it was based on emergency; expanded scope of pogg by allowing fed legislation for prevention of emergency
Johanneson: Canada signed aeronautics treaties itself so s132 no longer usable; aero field concerns country as a whole and is an activity which from its inherent nature must be a
concern for the whole dominion; area not divisible in any practical way
Munro: national capital act allowing for land expropriation upheld on pogg; some things might take on a national dimension; development of national capital region under act was
a single matter of national concern
Jones: s91 words used to uphold fed law without mention of the national concern doctrine; implication that s91 also authorizes fed leg in subject matters not explicitly connected
to either level of govt; fed institutions are beyond prov reach and fall within pogg because of the purely residuary nature of the leg power conferred
 Anti-Inflation Reference: extrinsic & social science evidence can be used (Hogg) ; 5 held emergency essential and rejected national concern branch; case narrowly read national
concern doctrine; unanimous that emergency can be used in peacetime and that feds decide emergency ( expired or be apprehending); 7 held act supportable under emergency; split
on proof needed to show emergency (less onerous when classic emergency) Laskin – look at actual context, formal aspects neednt emergency; reasonably assess; not much diff btw
national concern and emergency branches; emergency just allows feds to temporarily gain extra power but provs do not lose any power;;; Beetz – national concern branch puts
Const at risk of permanent modification of div of powers; distinctness necessary to classify something as a national concern; case shows judicial restraint
 Test for checking valid pogg under emergency branch: 1. crisis of serious national concern; 2. rational basis for parliament to conclude emergency exists?; 3. is the measure
temporary? 4. is the law rationally connected to the emergency?
Morgentaler: lifted restriction placed on inadmissibility of legislature speeches- relevant to background & purpose
Hauser: constl validity of NCA rested on pogg than on criminal law; abuse of narcotic drugs a new problem so not in either s91 or s92; hence fell into general residual power in
same way as aeronautics
Schneider: BC heroin treatment act intra vires; heroin treatment not falling within pogg and is largely a local problem; not a matter of national concern and failure to treat in 1
prov would not danger interests of another province; legislative domain is divisible
Zellerbach: settled national concern branch and no real change subsequent; fed law trying to enact intl concern about pollution; Test for national concern branch: 1. distinct &
separate from emergency branch; 2. can apply to new matters not in s91/92 and to matters that were originally local in nature but now are matters of national concern;
3. singleness, distinctiveness and indivisibility that distinguish from prov concern & a scale of impact on prov jurisdiction that is reconcilable w/ the fundamental distribution of
leg. power under Const; 4. provincial inability test (effect on other provinces if prov fails to deal with the matter);
Test not easy to apply since words like ‘singleness’ are ambiguous; pogg used here to uphold environmental provision though dissent finds difficult to show singleness
Oldman River: marine pollution is a matter of national concern cos it is predominantly extra provincial & international as per criteria in Zellerbach
FEDERALISM AND CRIMINAL LAW
PATA: crim law if penal consequence and a prohibition to protect a public interest (form and substance test); (s91(27)) can evolve
Margarine Reference: modern starting point for fed criminal law; crime is an act which the law forbids with penal sanctions; must be a form and valid purpose to crim law;
public purpose includes peace, order, safety, health, morality; here public interest is trade so not true crim law; floodgates and support of prov activities
Boggs: no community interest in criminalizing administration of provincial regulatory matters like license suspensions
RJR MacDonald: fed tobacco control act found intra vires as a legitimate exercise of criminal law power; form correct since penal sanctions; purpose is to protect public health;
health not an enumerated head of power in BNA but crim law can evolve; no evidence of an ulterior motive or unjustifiable intrusion upon prov powers; mere fact that it is not
practical to implement a prohibition of tobacco products does not mean feds cannot resort to other intermediate policy options such as controlling advertising; status-based
exemption (foreign media) doesnt detract from crim nature of leg & only delineates logical and practical limits to parliament’s exercise of criminal law power; dissent said
underlying activity not banned so shouldn’t use crim power; fed govt is ok to prohibit an activity ancillary to the underlying activity as long as it fulfills the form and purpose
requirement through the legislation; case widened scope of criminal power
Cosmar: detailed regulations setting out standards for the manufacture of baby’s cribs were found to be a valid exercise of the criminal law power as they were directed at
safeguarding the health and security of infants
Hydro Quebec: criminal power cannot be used colourably by the feds (invade prov legislative areas by using crim as excuse). To check colourability, check if legitimate public
purpose underlies prohibition. Protection of a clean environment is a fundamental value & public purpose and major challenge of our time that requires action by all levels of govt.
Canada can fulfill intl obligations through crim law power. The use of the fed crim law power does not prevent the provinces from also regulating environment (complexity of
subject). Dissent says elaborate scheme is proof that the scheme is regulatory not criminal and hence rightly prov matter. But court says environment is a matter of shared
jurisdiction and the Const does not assign it exclusively to either the feds or provs. Pogg not considered since found valid under s91(27) Critics: Beatty says decision endangers
federalism principle by giving both govt levels authority over environment & feds will justify everything by using crim law. Would have been better to uphold using pogg power
and prov inability; Leclair says fed involvement necessary due to prov general lack of interest and s91(27) needn’t be confined to traditional sanctions as long as law is aimed at
regulation of public evils; Haigh says wont widening the scope of s91(27) have same permanent change in division of powers as allowing national concern branch of pogg? Loose
form - cant have specificity in what is toxic; wide scope but not uncontrollable
***end result is expansion of crim law power; form and purpose can be within a regulatory regime not just true crimes
Firearms Reference: feds passed new gun control leg; Alberta said scheme regulatory not crim leg. And gun control scheme same as existing prov regulation; Pith and substance
directed towards enhancing public safety; intrusion into s92(13) not so great as to upset federalism; court found law intra vires feds thus continuing trend towards an expansive
interpretation of crim law power; ok to have a prohibition on an ancillary activity; it is ok for feds to legislate in a preventative way
McNeil: censorship of films shown in prov; impugned leg deals w/ regulating a biz within the province not w/ creating a crim offence; morality & criminality are not coextensive;
leg enforcing a local standard of morality is not always an invasion of fed criminal field; the leg is more preventative than penal; no constl barrier stopping a prov from censoring
for standards of morality; leg deals w/ s92(13) hence valid; country so diverse the determination of what’s acceptable publicly is a matter of local and private nature within s92(13)
Dupond: continued pattern of sympathy to provincial interests in regulating local conditions; bylaw prohibiting public gatherings for safety reasons found intra vires province
since roads etc are local domain
Westendorp: reversed trend in McNeil & Dupond; struck down bylaw regulating public order & morality as colourable intrusion into s91(27); explicit provision about prostitution
but reasons given public safety; fines & imprisonment penalties; if bylaw really about street regulation it would have talked about obstruction by everyone not just prostitutes; not a
property q; potential for collapsing div of powers
But in cases subsequent the SC continued the general pattern of upholding prov laws dealing w/ public order and morality through generous use of the doctrine of double aspect
rather than finding them to be an intrusion on the fed criminal law power
Rio Hotel: liquor control act of prov prohibited nude performances; leg related to property & civil rights; only seeks to regulate forms of entertainment that may be used as mkting
tools to boost alcohol sales; no penal consequences; prov regulatory scheme can operate concurrently with fed CC provisions; no colourable intrusion since neither form nor
purpose to imitate crim law
THE CHARTER
1.has a charter right been breached by a state act? And if so 2. is the violation justified by s1 of charter? S1 says rights may be limited if the limits are ‘prescribed by law’,
‘reasonable’ & ‘demonstrably justified’. BOP is on party upholding the limit (s1 looks at accessibility of and intelligibility of the citizen)
If language is vague/ uncertain/unintelligible no limit prescribed by law (Osborne): s1 analysis isnt reqd since even threshold req isn’t met
Hunter v. Southam: courts use purposive approach to interpreting charter; const must be capable of growth & needs broad perspective; start by considering purpose underlying
the right before assessing reasonableness; need to for all rights since constl language often vague
Big M: to determine purpose of the right 1. refer to character & larger objectives of charter 2. language used to describe right 3. historical origins of concept 4. meaning/purpose
Therens: inclusion of s1 is conducive to a broad and purposive approach to interpretation of particular rights (no need to restrict interpretation in stage 1); court explicitly stated
that it would not rely on pre-charter decisions; would not rely on bill of rights decisions even if wording was the same since those decisions were uncertain and ambivalent
BC Motor Vehicle Reference: ‘living tree’ so charter must grow and adjust over time & not be stunted by historical materials
Public Service Employee Reference: court would look to intl sources for guidance in interpreting the charter, esp human rights treaties
Nova Scotia Pharmaceutical: vagueness raised under s7 & s1; doctrine of vagueness founded on rule of law (fair notice to citizens 7 limitation of enforcement discretion);
intelligibility necessary to have meaningful legal debate
Oakes: 1st comprehensive treatment of s1 came here; test is the primary referent for the 2nd stage of charter rights analysis
1. is the leg designed to serve a pressing and substantial purpose? 2. is there a rational connection btw the leg & purpose? Does the leg minimally impair rights? 3. Are the effects of
the leg proportional to the objectives? Dagenais refined the ‘deleterious effects’ test by adding that courts should not only consider objectives of the impugned law but its salutary
effects (2nd stage of test is most relied on)
Also within the test, courts weigh rights against each other and also defer to legislatures : both are linked to a contextual approach
Edmonton Journal: 2 approaches to applying charter are abstract approach and contextual approach; under each see the underlying value which the right was designed to protect;
right may have diff meanings in diff contexts so better to assess importance of right in context
Irwin Toy: greater deference to legislature is approp where the govt has tried to balance competing rights to protect a socially vulnerable group; case introduced a distinction btw
cases where the govt is an antagonist of indiv w/ infringed rights & where govt is a mediator; s1 applied more deferentially when more of a regulatory field; but this means a loose
and malleable standard
Thomson Newspapers: s1 analysis must be done w/ close attention to context (to see if leg is justified);contextual factors to consider: nature of activity infringed: 1. vulnerability
of group leg wants to protect; 2. group’s fears/apprehensions of harm; 3. inability to scientifically measure particular harm; 4. nature of activity/right infringed
RJR MacDonald: s1 is a fact specific inquiry; deference to govt mustn’t be carried too far; standard of proof on a bal of prb approp @ all stages
Lucas: 3 ways in which a court can defer to legislatures: 1. defer to relevant findings of fact by legislature 2. defer if legislature has reasonably attempted to accommodate
competing interests 3. lower standard of justification under s1 (may be different instances of the protected right)
Ford: s33 allows a specific guaranteed right to be overridden if explicitly referred to in overriding clause of leg. Some see s33 as undermining charter’s protection of indiv rights
Hutchinson says charter is a mistake for 5 reasons (all law is politics): 1. only negative rights, no +ve; 2. many rights in charter should actually be resolved in political realm not in
court 3. protects the haves @ expense of have nots 4. silent on clashes btw rights 5. pvt values protected more
S32 gives a list of what the charter applies to – q whether it is exhaustive. Not sure what levels of govt it applies to (it just says ‘and govt’)
S52 says charter is supreme law but does not help in telling us whether charter applies to quasi disputes etc
 before we check whether charter right infringed, see if charter even applies since not all actions invoke a charter claim(use s32(1))
Issue whether s32 limits charter application to govts and legislatures, leaving pvt actors free from conforming to it
Dolphin Delivery: secondary picketing issue; Canada Labour Code silent on it so fell to be determined by common law; which said not allowed; union argued it should be allowed
since s2b in charter and it more imp than common law rule; said judges shudnt make ruling contrary to charter; q whether judges part of govt & whether charter applies to them;
McIntyre: charter will apply to common law where it forms the basis of govt action but will not apply to pvt parties; but judges should keep charter values in mind when rendering
all decisions; mainly charter applies to govt; govt is legislative, executive & administrative & charter applies to those whether action is invoked in pvt or public litigation; judiciary
separate; a more direct and precisely defined connection between the element of govt action and claim advanced must be present before the charter applies
Actions qualify as govt’l in 2 ways: 1. if actor itself is govt’l, its actions subject to charter 2. non govt actors subject if engaged in govtl activities
Issues; provincial variation, powerful pvt actors unchecked, charter can’t apply directly to judges when developing/applying common law Incoherent (some parts of govt immune
from charter review); all legal rules backed by coercive power of state; diff distinction btw pvt/public
Slaight: pvt adjudicator gave an order that was challenged as going against s2b; SC said charter applied b/c adjudicator’s powers completely dependent on statute & since statute
governed by charter it is proper to apply charter; connection close enough to say govt action involved
Blencoe: human rights commission exercising state power of compulsion; close enough link to govt action for commission to be bound by charter
McKinney: q whether charter applies to unis; charter does not apply to pvt actions since govt can regulate pvt bodies w/ other codes; unis hve large area of delegated power; unis
dependent for resources but are not autonomous & not govt organs; charter not intended to cover activities by non govt entities created by govt for other purposes; simply fulfilling
a public purpose does not invoke charter; 2 stage test: 1. is what is involved an act of govt or is entity itself a govt per s32? 2. even if no, is the act ascribed to govt (based on nature
of activity) [charter applies if huge govt control]
Douglas College: more like crown agents; govt may at all times direct the operation; colleges subject to routine govt control hence charter applies
Lavigne: council of regents an emanation of govt; rejected submission that charter should only apply to regulatory govt activities leaving commercial/contractual activities exempt;
no approval of attempt to distinguish btw public and pvt govt transactions
Godbout: residence req violated quebec charter; majority said not necessary to consider cdn charter args but LaForest said that municipalities are subject to the charter; s32(1)
contemplates that entities controlled by govt or that perform truly govtl activities are subject to charter; therefore practical to interpret s32 as including govt entities other than those
listed; since otherwise fed and prov govts could shirk charter obligations by conferring part of powers and have unlisted entities carry out certain tasks
Stoffman: hospitals are like unis; hospital has routine control; mere provision of public service does not qualify it as a govt institution; the policy at issue was a matter of internal
hospital management that was not instigated by govt
Eldridge: hospital insurance act didn’t make sign language interpretation available as insured service; issue whether charter applies to charter policy; charter will apply to a pvt
entity if it is implementing a specific govt policy/program; although benefits of the service at issue is delivered and administered by hospitals, it is the govt that defines content &
entitlement; hence hospitals are carrying out specific govt objective; direct and precisely defined connection exists btw specific govt policy and hospital’s conduct; govt cannot
evade obligations under s15(1)
NOTE: charter applies to govt inaction as well as action since charter rights impose a mix of +ve & -ve freedoms
Vriend: govt refused to include sexual orientation as grounds for discrim; court said even a refusal by govt to act is subject to charter review;
In Dolphin the silence of Canada labour code never challenged but based on this decision, would make a great argument; when a court finds that a legislative omission offends the
charter, it says a common law that operates in absence of legislation needs to be revised to conform w/ charter
Hill: charter scrutiny of common law of defamation? pvt action like this does not invoke the charter but charter values should inform the common law; charter will only apply to
the extent that the common law is found to be inconsistent w/ charter values; but court unclear on what this means
Salituro: court expresses concern about suddenly having charter values inform common law; says common law is about incremental changes; but says if possible to change
common law to make it consistent w/ charter values then rule should be changed (case abrogated spousal incompetence common law rule to protect dignity as per charter values)
Pepsi Cola: s2b arg needs to be brought into debate about secondary picketing; Dolphin had assumed tort, charter reqd evidence; dolphin still main test but here align CL w/ ch
FREEDOM OF RELIGION
S2a is about freedom of conscience and freedom of religion. No specific head of power in CA that deals w/ religion. Can be common to both heads of power. Preamble talks about
supremacy of God so seems like connection to religion but this is often ignored unlike other parts of preamble.
Religion seen in 2 ways (Moon article): 1.noncompulsion: freedom to be rel. 2) freedom from it: no imposition but vestiges remain everywhere
Big M: prev case law says must consider purpose and effects of a law to see if charter freedom breached; court did not accept ‘shifting purpose’ arg; purpose as @ time Sunday
shopping law made; defn of freedom of religion ‘freedom to manifest religious beliefs by worship’ & has no coercion/constraint (but not absolute; limit stated: cannot harm others
using as guise); moreover court said if purpose truly secular as govt argued under s92(13) only provs cud enact law; also shows corps are entitled to raise charter as a legit defence
when charged (if not charged, wud need to use public standing test to raise issue in court); also said Alberta dissent wrong in interpreting preamble as reflecting Christian values
Edwards Brooks: prov banned Sunday shopping except certain stores; secular purpose; de minimis rule exists; economic burden does occur on certain classes; there is a breach of
s2a but saved by s1 cos of store exceptions (minimal impairment); Wilson dissent: unfair to differentiate stores
Amselem: very recent; restrictions on what to do on balconies despite co-ownership; tenants said restriction; crt discussion in terms of quebec charater but analysis also applies to
cdn; crt wants to protect indiv’s self definition: says must assess indiv’s sincere belief (no matter if not required by formal dogma); hence very subjective element to test; 2 part
test: indiv must show 1. has a practice or belief 2. sincerity in that belief
Test allows expansion beyond traditional religions; dissent said voluntary contractual agreement should be upheld; s2a shudnt be a sword
FREEDOM OF CONSCIENCE: in s2a but ignored; shud hve independent meaning; in Morgentaler said it is conscientious beliefs that aren’t religiously motivated and shud get
same constl protection as religious beliefs; Lamer(dissent) in Roderiguez said charter has established secular nature of cdn society and given a place to freedom of conscience in
cdn institutions; crt considered s2a also in deciding same sex cases
FREEDOM OF EXPRESSION
S2b: freedom of thought, belief, opinion and expression incld freedom of press & other media; debate about whether expression should include
actions/conduct/behaviour/activities; no history of expression jurisprudence prior to 1982 so cdn crts initially looked to US courts
3 rationales for protecting FOE: 1. search for truth/marketplace of ideas 2. promote democracy & proper political process 3. self actualization
Must watch out for ppl trying to use rationales and get away w/ things. They assume expression is an intrinsic good but don’t tell us how to regard expressive ideas/activities.
Intriguing points: 1. should charter protect ppl who make unpopular views? 2. is there a cultural bias in FOE
We want to ensure equal opp to express ourselves but not necessarily equal expression itself: also crts weigh FOE against other rights in analysis
Dolphin Delivery: democratic govt is a crucial rationale of FOE; promotes a more vibrant society through rich debate; expression is broad but does not include acts of violence or
other unlawful ways of conduct
Ford, Irwin Toy: self-fulfillment and flourishment of humans through FOE; form & content shud all be part of FOE; whether expressive depends on the context; in order to be
expressive content some meaning must be conveyed
Alberta Press: (precharter!!!) press mandated to publish social credit doctrine; free public discussion key aspect to citizenship & govt operation
Keegstra: self-realization cannot be unbounded; threat of violence can be a protected form of expression; expression is anything short of actual violence; hence broad defn of FOE;
most of debate on FOE happens around s1 since defn is so broad; rationale 3 applies to recipients too; criminalization is itself expression; govt held to higher std since antagonist
but this useless speech; plus rights minimally impaired
Banks: crt says squeegeeing is same thing as begging (expressing same idea); defining begging very broadly; (SC defn of saying expression is any form of communication except
actual violence is an impoverished defn); crt assuming squeegeeing conveys meaning
Irwin Toy: 2 step analysis: 1. does activity have expressive content? 2. does restriction occur cos of purpose or effects? ; case 1st mentioned there might be a diff level of deference
to govt in s1 analysis of s2b etc when govt is not the antagonist esp if reasonable evidence;
Montreal: added step 1a; does the method or location of expression remove the protection?; sometimes FOE shudnt be granted in certain locations; step 1a usually applies only
where the legislation is not a complete ban applying everywhere; applies whenever law has diff effects in diff places;
RJR MacDonald: commercial speech imp cos imp info provided to consumers yet shud be easier to establish limits on commercial speech; crt seems to covertly create hierarchy
of speech; minimal impairment stage in issue; maj said alt & less restrictive ways to tackle ads; esp since underlying activity still legal; dissent says activity still allowed so leg is
minimally impairing (but wrong: shud only be focusing on right @ issue)
EQUALITY RIGHTS
S15(1): has 4 clauses to overcome prior BOR limits (equality before law, under law, protection of and benefit of law)
Andrews: differential treatment is not necessarily legal discrimination; laws that are ‘facially neutral’ may be discriminatory in impact 1st s15 case; crt set out contours of approach
to s15 analysis in a 3 part test: 1) distinction in treatment 2) that results in the imposition of a burden/denial of a benefit 3) on the basis of an expressly prohibited or analogous
ground. Hogg’s approach: treat every distinction made by the law as discriminatory & justifiable only pursuant to s1; McLachlan’s approach: discrimination is unfair or
unreasonable differences in treatment but leaves no role to s1. McIntyre rejected both. Wilson said noncitizens are a ‘discrete and insular minority’ and hence form a category
analogous to those enumerated in s15. 2 other considerations supporting it as analogous: 1. immutable like enumerated grounds 2. irrelevant to general work of govt Crt split on
appropriate role of s1 in equality rights. McIntyre wanted to relax s1 analysis while Wilson and LaForest said govt should have onerous burden to justify violations; ruling limited
s15 role to fighting most socially destructive forms of discrim; s15 is interpreted purposively
Turpin: 1st attempt to describe s15’s purpose; in checking if discrim on grounds related to personal characteristics of the indiv/group imp to look not only at the impugned leg but
at the larger social, political and legal context; purpose of 15 is to prevent ‘discrim against groups suffering social, political & legal disad in our society’ (Wilson); implication that
membership in a disadvantaged group is a precondition for bringing a s15 claim;
Hess, Weatherall: SC held that s15 does not apply only to disadvantaged groups; said differential treatment based on sex did not violate the charter (men frisked, rape by men)
Miron, Egan, Thibaudeau: disarray about how equality analysis should be done; overall purpose of s15 is prevention of ‘violation of human dignity’ ‘by imposing limitations’’
through the stereotypical application of presumed group characteristics than on the basis of indiv merit’; Dube abandoned focus on grounds of discrim & wanted to focus on nature
of the group & nature of interest adversely affected; 1 grp added the ‘relevance test’ as a precondition (show discrim but also has to be a relevant group characteristic to the group
in question’; marital status is analogous (Miron)
Eldridge: successful s15 claim based on differential treatment resulting from a facially neutral policy; distinction is based on a personal characteristic that is irrelevant to the
functional values underlying the health care system; adverse effects discrim; a discrim intention/purpose is not a necessary condition of a s15(1) violation; govt has a duty to take
+ve action to ensure that the scope of a govt benefit is extended to include previously exclude classes of persons; govt had not reasonably accommodated disability
Vriend: successful claim of adverse effects discrim; omission sexual orientation as a ground of discrim in Alberta HR leg was not neutral treatment but differential treatment
directly and in terms of its adverse effects; facially neutral rule has a more burdensome impact on gay minority group
Symes, Thibaudeau: claims based on statistical adverse effects that failed; more difficult to prove than claims about disproportionate burdens
Law: Andrews test reformulated; new test: 1) whether law imposes differential treatment btw claimant & others in purpose or effect 2) whether enumerated/analogous grounds are
basis for differential treatment 3) whether diff treatment is substantive discrim; addition: burdensome differences in treatment on the basis of prohibited grounds are only
discriminatory if they can reasonably be said to violate the human dignity of the claimant; comparator group and context of claim is crucial; claimant chooses the comparator
group; dignity from claimant’s perspective; 4 contextual factors to evaluate dignity in 3rd stage 1) preexisting disad 2) rltionship btw grounds & claimant’s
characteristic/circumstance 3) ameliorative purpose/effects of the leg 4) nature of interest affected; case brings back idea of needing unfair distinctions but dignity too vague
(Hogg); 10 steps effectively renders s1 useless; difficulty applying this test in subsequent cases; indirect discrim also covered by s15 said court
Lavoie: diff of opinion re s1; majority relaxed the burden of justification on govts; 2 majs said no discrim cos no violation of human dignity; Bastarache wanted deference to
Parliament and Arbour had narrow view of discrim; equality rights in more vulnerable state than after Andrews
Corbiere: enumerated grounds are only indicators of suspect grounds of discrim; decisions on these grounds are not always discrim; same w/ distinctions made on analogous
grounds; it isn’t the ground that varies from case to case but the determination of whether a distinction on the basis of a constitutionally cognizable ground is discriminatory;
aboriginality residence is an analogous ground; ordinary residence for other ppl is not; it is an embedded analogous ground as it is limited to a subset of the pop; the leg was
discrim cos it violated human dignity and perpetuated stereotype; maj said once a personal characteristic is seen as an analogous ground it will cross all legal contexts & is fixed
forever while dube said varies in contexts; unanimous that the common feature of enumerated grounds & hence defining feature of an analogous ground is immutability
M & H: sexual orientation is analogous; difficulties w/ Law test visible; exclusion of same sex couples not rationally connected to leg objectives; already disadvantaged group,
stereotype, Gonthier in dissent says leg meant to protect heterosexual women; gays not similarly disadvantaged; Law ruling may have got consensus at an abstract/superficial level
leaving room for disagreements in consideration of contextual factors
Gosselin: maj found scheme differentiating on age acceptable; strong dissent; age is the ground not welfare; ‘reasonableness’ perspective emphasized; age is extra difficult as a
ground because it is not permanently immutable; not discrim since encouraging ppl to find jobs is a way to increase dignity
Hodge: P can pick comparator grp but crt has oblig to choose another if wrong; ultimate decision not upto claimant; Auton: crt made ridic grp; lawyers now less on dignity 
Lovelace: crt rejected view that s15(2) is an exception to s15(1), opting for a holistic interpretation of s15; not only a target ameliorative prg; program on partnered basis; s15(2) is
confirmatory & supplementary to s15(1); equality claims should always be directed to s15(1) first since that embraces ameliorative prgs contemplated by s15(2); if ameliorative
programs are ‘targeted’, it may be difficult for challenges to ameliorative prgs to succeed even when brought by members of disad groups (pulling back from statement in Law)
ABORIGINAL PEOPLES
S35(2) affirms the rights of aboriginal people that were in existence at the time charter was formed; s35 is NOT part of the charter
S35(2) makes only 3 distinctions among aboriginals-Indian, Metis, Inuit; status/nonstatus distinction does not exist in Inuit group;
Calder: SC said ab title is justiciable under the common law; aboriginal title is a legal right derived from Indians’ historic occupation & possession of their tribal lands; it exists
independently of a treaty, executive order or legislative enactment; it is a pre-existing right
Guerin: equitable obligation on crts to deal w/ land for benefit of Indians; is a fiduciary duty not a trust; happens cos Indian land interest can only be alienated by surrender;
surrender requirement and the responsibility it entails are the source of the distinct fiduciary obligation owed by the Crown to Indians; Indians have a legal right to occupy/possess
certain lands whose ultimate title is in the crown; Indian title: 1. general inalienability 2. crown obliged to deal w/ it on their behalf when it is surrendered; crt has discretion to
decide for itself where the Indians’ best interests lie; court has to be honourable all through
Haida, Taku River: the fiduciary obligation of the Crown arises when the aboriginal title begins
Sparrow: s35(1) applies to rights that were in existence when the CA came into effect; extinguished rights not revived; Crown’s intention to extinguish ab right must be clear and
plain and clear; regulation of the right is not extinguishment – govt needs to have completely eliminated the right and has onus to show extinguishment; govt regulations of ab
rights must be in keeping with s35(1); s35(1) is not subject to s1 or to s33; s35(1) is not part of the charter; it gives abs constl protection against legislative power; it must be
construed purposively; ‘recognized and affirmed’ means that the govt has burden of justifying any leg that infringes upon/denies an ab right protected by s35(1); test for prima
facie interference w/ existing ab right & justification for such an interference: 1. does the leg have the effect of interfering? Is the limitation unreasonable? Does the reg impose
undue hardship? Does the reg deny preferred means of exercising the right? If prima facie interference is found, analysis moves to the issue of justification; 1. is there a valid
legislative objective? Valid if necessary for conservation of resource or in public interest; after conservation, ab rights priority; constl entitlement in s35(1) requires crown to
ensure its regulations are in keeping w/ the allocation of priority; 2. does the leg ensure the special relationship by infringing the right as little as possible
Van der Peet: ab rights must be viewed differently from charter rights because they are rights held only by abs; s35(1) must be interpreted liberally/generously; doubt/ambiguity
about what falls within scope/defn of s35(1) must be resolved in favour of abs; ab rights is traditional laws/customs; idea of centrality and distinctive culture added to Sparrow test;
Whole debate about frozen rights in time and evolution of rights; majority says frozen to an extent since ab rights are not charter rights; practices can be turned off temporarily
Powley: reformulation/modification of van der peet test since metis guy; he needs to show that the practice existed pre-European control as opposed to pre-contact
Sappier, Gray: bit of backing off from strictness of van der test; centrality to the culture part has to be applied flexibly because the point is to allow continuity to the ab societies;
centrality does not mean that pre-contact practice has to go to the very core of the culture’s identity
Delgamuukw: ignored the strictness of the van der test when it came to aboriginal land title; said ab land title is a uniform and sui generic right and that land can be used in any
way subject to the irreconcilable use limit; but van der test still applicable to things dealing with custom/tradition/rights to hunt, fish , trade etc
Gladstone: distinguishes btw subsistence needs and commercial needs where no internal limitation; commercial may be regulated in interests of public policy if put ab in priority
Sparrow/Van der Peet/Powley test: 1) what is the right claimed by the metis or by the abs? 2) is the claimant a part of the group claiming the right? 3) is the right a custom,
practice of tradition that is integral to the distinctive culture of the native group [or to the metis group – here time constraint different]; evolution allowed but to what extent will
changes be called evolution? 4) is there continuity upto today as a contemporary right? 5) has the right been extinguished? Evidence has to be used flexibly, generously 6) has the
right been infringed and if so is the infringement justified?
Difficulties with the test: 1) hard to establish what is central/distinctive; freezes rights in time 2) regulation is not extinguishment – actual extinguishment is not easily provable
and govt needs express language 3) what if non abs are being charged too – should govt differentiate? 4) govt can show reason to limit like crim law 5) even if the govt can justify
a limitation it has to give priority to the ab right (4 and 5 are like quasi oakes test because it is about minimally impairing abs rights)
Articles: Lederman, Ryder (DA), O’Sullivan, Dicey, Simeon (federalism), Lederman (BNA), Swinton (Laskin), Moon (FOR), Sheppard (adverse effect)