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Sources and Nature of Constitution of Canada

Subsection 52(1) of the Constitution Act, 1982 affirms the primacy of the

Constitution of Canada:

“The Constitution of Canada is the supreme law of Canada, and any law inconsistent

with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” - Cannot be repealed by statute

By virtue of subsection 52(2), the Constitution of Canada “includes”:

The Canada Act 1982

The Constitution Act, 1982

The thirty other Acts and orders, including the Constitution Act, 1867, referenced in the schedule

Constitutional amendments (of which ten have been enacted since 1982) The Constitution of Canada also includes:

“the global system of rules and principles which govern the exercise of constitutional

authority in the whole and every part of the Canadian state.”

- Patriation Reference (1981)

Parliamentary Privilage Are Common law powers Are the powers required for legislature to function Not subject to the Charter There is no distinction between legislated parliamentary privilege and inherent privilege, both are exempt from the Charter. New Brunswick Broadcasting v. Nova Scotia1993

The broadcasting corporation wanted to broadcast the legislative proceedings.

The legislature wanted to exclude the proceedings under their power to exclude strangers as part of their power of parliamentary privilege.

The Court held that they were allowed to exclude the strangers.

They found that parliamentary privilege is part of the Constitution of Canada and can be used to trump Charter rights. Canada v. Vaid – Parliamentary privilege must be necessary for the proper functioning and deliberative functions of the House (except for those privileges that are set out in statute under s. 18 of the Constitution Act, 1867).

Royal Prerogative The powers and privileges accorded by the common law to the Crown. These are the left over powers of ‘arbitrary authority’ that used to be in the hands of the Crown. Examples: Making treaties; conducting war; office of Governor General; appointment of Prime Minister and Ministers; obtaining passports; creation of aboriginal reserves

Constitutional Conventions

Succession Reference - “in the process of Constitutional adjudication, the Court may have regard to unwritten principles which form the very foundation of the Constitution of Canada.” 4 unwritten constitutional principles from decision:

Federalism: “the principle of Federalism recognizes the diversity of the

component parts.” Democracy: “The relationship between democracy and federalism means, for

example, that in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level.” Constitutionalism and the Rule of Law: “Simply put, the constitutionalism

principle requires that all government action comply with the Constitution. The rule of law principle requires that all government action must comply with the law, including the Constitution.” Protection of Minorities: “The principle is clearly reflected in the Charter’s provisions for the protection of minority rights.” – Manitoba Language Rights - Rule of Law trumped written law

Three reasons “why a constitution is entrenched beyond the reach of simple majority rule”:


1. “[A] constitution may provide an added safeguard for fundamental human

rights and individual freedoms which might otherwise be susceptible to government interference.” 2. “[A] constitution may seek to ensure that vulnerable minority groups are

endowed with the institutions and rights necessary to promote their identities against the assimilative pressures of the majority.” 3. “[A] constitution may provide for a division of public power that allocates political power amongst different levels of government.”


Amending Procedures – Part V


“Procedure for Amending Constitution of Canada”


General Amending Procedure, s. 38 – Used for all types of amendments which


do not require the more specific amendments in s. 41, 43, 33, and 45. It is also to be used specifically for section 42. 7/50 rule – 2/3 provinces, 50% population – In practice 1 Western province, 1 Atlantic, Quebec or Ontario Provinicial Opt Out s. 38(3) - Only when amendment derogates from provincial powers - Only up to 3 provinces (7/50 rule) Compensation - S. 40 – “reasonable compensation” to any province that has opted out of an amendment that transfers “provincial power to education or other cultural matters” Unanimous Consent, s. 41( no time limit under s 39) required for:

the office of the Queen, the Governor General and the Lieutenant Governor of a province; number of provinces members in the House of Commons; Use of English or French (subject to s. 43)

Composition of SCC

Amendment of this section


Some-but-not-all-provinces, (Consent of affected provinces) .43

Alteration of boundries

Amendment re: English or French within a province

Requires approval of each province to which amendment applies


Federal Parliament alone, s. 44

Amendments (subject to 41 and 42) re: federal power over executive and


houses of parliament – No special majority needed Province alone, s. 45 – re: amending provincial constitution


Judiciary – Not Official – However most constitutional change or amendments come through the courts.


- governmental power is distributed between the Federal and Regional (provincial) authority, such that every individual is subject to the laws of two authorities

Reasons – 1) Size and diversity – Fed regulate matters of national importance

and provinces regulate matters of local importance 2) embrace distinctions between people, especially Quebec, while enabling Canada as a whole to function. Exclusive heads of power under s 91 (federal) and 92 (provincial) of

Constitution Act 1867 – some concurrent powers Courts must determine whether a particular statute comes within the powers conferred by the Constitution on the legislative body that enacted it.


2 Broad Areas:

1. Federalism (Division of Powers) – Heads of power under §91 (federal) and §92 (provincial)

2. Infringement of rights (Charter)

3 Key Federalism Doctrines

Pith and substance: is the law valid?

Interjurisdictional Immunity (“IJI”): is the provincial law applicable to a

federal entity or person? Paramountcy: is the provincial law inoperative because of a conflict with federal law?

Ultra Vires Legislation Analysis

1) Determine PITH AND SUBSTANCE of the law under review

Consider dominant purpose and effect of the law – True nature and

character Look to:

1) Statute wording / title / headings 2) Legislative history

3) Effect of the law (not efficacy) 4) Colourability doctrine 5) Singling out – Provinces statute has federal target – Court may declare this the pith and substance Caution – many laws come within federal and provincial heads of power

2) Determine if law can be a assigned to one of government heads of power

Pith and Substance Doctrine – Enables one level of government to enact laws with substantial impact on matters outside its jurisdiction, as long as it can convince court that is “in relation to” a matter within its jurisdiction

Double Aspect Doctrine – Provincial and federal laws overlap When the court finds that the federal and provincial characteristics are equal, then the law can be enacted by both levels. i.e. Insider trading, driving offences

Effect and Efficacy Effect – Court will always consider the effect of the statute and how it effects the rights and liabilities of those subject to it.

Efficacy - Longstanding rule that the courts should not be concerned with the wisdom or

policy of the legislation.

matter for constitutional purposes

Whether a law is misguided will play no role in classifying its

Colourability - when a statute bears the formal trappings of a matter within the

government’s jurisdiction, but in reality is addressed to a matter outside its jurisdiction.

“a legislative body cannot do indirectly what it cannot do directly.” - Rare Ex: Morgantaler #3 (1993) - Nova Scotia passed laws regulating abortion which appeared to concern health care but was struck down as being an invalid criminal law.

Reference re Assisted Human Reproduction Act (2010) The first step of the constitutional analysis involves identifying the pith and substance (purpose and effects) of the impugned provisions. Those provisions must be considered separately before considering their connection with the other provisions of the Act, since the purposes and effects of a statute's many provisions can be different. It is also important to identify the pith and substance of the impugned provisions as precisely as possible, since a vague characterization could lead not only to the dilution of and confusion with respect to the constitutional doctrines, but also to an erosion of the scope of provincial powers as a result of the federal paramountcy doctrine. If the pith and substance of the provisions falls within the jurisdiction of the other level of government, it is necessary first to assess the extent of the overflow in light of the purpose of the provisions and to weigh their effects. It must then be determined whether the provisions form part of an otherwise valid statute. Finally, the impugned

provisions must be considered in the context of the entire statute in order to determine whether they are sufficiently integrated with the other provisions of the otherwise valid statute. This review must make it possible to establish a relationship between the extent of the jurisdictional overflow and the importance of the provisions themselves within the statute of which they form a part. There are two applicable concepts: functionality and necessity. The more necessary the provisions are to the effectiveness of the rules set out in the part of the statute that is not open to challenge, the greater the acceptable overflow will be. Care must be taken to maintain the constitutional balance of powers at all stages of the constitutional analysis.

Presumption of Constitutionality

Statute presumed constitutional (not so with Charter challenges) 1) Burden on claimant to show invalidity (balance of probabilities) 2) If there is a valid interpretation and an invalid one the court should find in favour of the valid one

3) Where the validity of a law requires a finding of fact, the fact need not be strictly proven by the government 4) Where possible the government should read down laws to ensure validity Presumption of constitutionality have the effect of reducing interference of unelected judges in the affairs of the elected legislative branch

Judicial review Severance – Where one portion of a statute is valid and another portion invalid, then severing the statute will be appropriate when the two parts can exist independently of each other

Not appropriate where the whole statute is inextricably bound

Usually in Charter cases

Validity of a Law – Tested on two grounds


on other government head of power

Jurisdiction (Federalism) – Law violates heads of power (91, 92) and encroaches


appropriate jurisdiction may be attacked in three ways:

Interjurisdictional Immunity – A law that purports to a matter outside the

1. Invalidity (ultra vires or intra vires) - the matter (Pith and Substance) is outside the jurisdiction of the legislative body

2. Inapplicability: interjurisdictional immunity - Acknowledge that law is valid in most applications but argue law should be interpreted as being inapplicable and not applied to extra-jurisdictional matters

3. Inoperability: paramountcy -where there are inconsistent federal and provincial laws, the federal law prevails. Provincial law is inoperative to the extent of the inconsistency

Canadian Western Bank v. Alberta :

Interjurisdicational immunity only applies if a “core competence” of Parliament

would be impaired by a provincial law. If the core competence would merely be affected, without adverse consequence,

then the pith and substance doctrine stipulates that the provincial law validly applies to the federal subject. In the absence of impairment, interjurisdictional immunity does not apply

Provincial Laws held inapplicable to Postal Workers. Teachers on military

base, RCMP, management of federally incorporated companies, Working conditions in federal undertakings, such as banks, railways or telecoms any matter that is not specifically enumerated will come within the jurisdiction of the provinces if it is local or private, and within the federal government if it has national dimensions


Exhaustive Distribution – §92(16) gives power to provinces over “all mattes of

merely a local or private nature in the province”.

residuary powers “to make laws for the peace, order and good government of Canada

in relation to all matters” … not within the provinces

§91 gives federal government

Accordingly, any matter that is not specifically enumerated will come within the jurisdiction of the provinces if it is local and private and within the federal government if it has national dimensions

Progressive Interpretation – Classes stated in §91 and §92 not frozen in time in 1867

Edwards v. A.G. Canada, 1930, stated “the BNA Act planted in Canada a living

tree capable of growth and expansion within its natural limits.” Progressive Interpretation is necessary because the constitution cannot be easily changed by subsequent generations (ie - telephones, aircraft, same sex marriage)

Unwritten Constitutional Principles e.g., rule of law (Manitoba Language Reference); Judicial independence (Re:

Remuneration of Judges and Mackin v. New Brunswick); Democracy (Quebec Secession Reference); Protection of civil liberties, federalism

These unwritten principles, which are interpreted (and created) by the courts, can and have trumped the written constitutional documents

Manitoba Language Reference – Rule of law required that unconstitutional laws remain valid for a period of time while legislature enacted bilingual versions

Re Remuneration of Judges - Unwritten constitutional principle of judicial independence prevented reduction of judges salaries

5. PARAMOUNTCY - Where there is conflict between valid federal and

provincial laws, the federal law takes precedence. Provincial law is rendered inoperative to the extent of the inconsistency (not invalid and Ultra Vires)

Triggered when:

1. The provincial law at issue is valid;

2. The federal law at issue is valid;

3. Both laws apply to the facts; and

4. They “conflict” – 1) Express contradiction - impossibility of dual

compliance OR 2) frustration of federal law purpose (ie Bank of Montreal v Hall- Bank Act (federal) security interests enforceable through seizure of collateral immediately upon default -Limitation of Civil Rights Act (Sask.) security interests valid and enforceable only if notice given of intention to seize property; debtor has right to judicial hearing before enforcement)


Overlapping subject matter

Legislative duplication (Multiple Access v McCutcheon)

Provincial laws supplementing the terms of or adding requirements to a federal law (eg Rothmans Benson & Hedges v Sask – advertising tobacco)

Mere fact that Parliament has enacted legislation regarding a subject does not mean it intended to “occupy the field” to rule out provincial legislation (absent

very clear statutory language to that effect”)

(Canadian Western Bank)

Economic Regulation Provinces – 92(13) – Property and Civil Rights Federal – 91(2) – Regulation of trade and commerce


Most expansive provincial power, interpreted broadly. Any laws affecting “rights in the province” are seen to be within 92(13) and beyond federal power.

Creation of property rights, their transfer and general characteristics are

covered by 92(13) Double Aspect Doctrine – areas of overlap with federal justified under 92(13) – eg insider trading, tobacco advertising

Analysis – 1) Determine “main and dominant feature” of challenged legislation 2) This is the pith and substance of the legislation, the matter that is “relation to” (Russell) 3) A law “in relation to” a valid head of power may “incidentally affect” other matters without being rendered invalid. (double aspect doctrine) 4) Pith and substance permits overlapping between federal and provincial regulation (Chatterjee- the “dominant feature” of CRA relates to a valid provincial object, namely property and civil rights and the suppression of crime. The fact that CRA incidentally “affects” criminal law does not render it invalid – a province may enact civil consequences to criminal activity, provided that it does so in relation to a provincial head of power – and does not frustrate federal purpose)


law of property (real and personal, conveyancing,), apart from patents, copyright and federal public property;

land use planning – Morgan v PEI – non resident cannot acquire real property over specific size without permission of cabinet

tort law, including statutory creation of civil causes of action (see GM v. City National Leasing -- Hogg, pg. 20-15);

contractual transactions concluded within a province (Parsons; Multiple Access v. McCutcheon – Hogg, pg. 21-24);

family law (adoption, custody, spousal and child support, property division), apart from marriage and divorce [s.91(26)];

labour law (collective bargaining, employment standards, occupational health and safety), apart from federal public sector and private sector workplaces where the employer’s activities are federally regulated (Bell Canada 1988) - ** During time of emergency fed govt can take jurisdiction over labour relations;

professional regulation (eg Law Societies);

highway traffic;

intra-provincial marketing and retail transactions (eg Rothmans);

consumer protection; and

law of succession (wills, estates).

Exceptions - specifically named elsewhere including; shipping, 91(10), banking, 91(15). Some industries have been held to fall under 91 Peace, Order and Good Government: Aeronautics, atomic energy


Appears to overlap with provincial power of 92(13)

Citizens Insurance v. Parsons – 91(2) applies only to international and inter- provincial trade and general regulation of trade affecting the entire nation – Not intra-provincial trade and commerce which is provincial under 92(13)

GM v City Natl Leasing - upheld constitutionality of the federal competition legislation under the “general” trade and commerce power.

Analysis for whether a legislative provision is valid within the "general" branch of the Trade and Commerce power: (GM v City National Leasing)


Determine whether the federal statute impugned provincial power


Determine whether the statute is valid:

i. general regulatory scheme;

ii. scheme monitored by oversight of regulatory agency;

iii. legislation concerned with trade as a whole, rather than with a particular


iv. legislation should be of a nature that the provinces jointly or severally

would be constitutionally incapable

of enacting; and



failure to include one or more provinces or localities in the legislative

scheme would jeopardize the successful operation of the scheme in other

parts of the country. Determine whether the impugned provision is sufficiently integrated with the


legislation so that it should be upheld

Reference re: Securities Act (2011) – Held: Federal securities plan was an unconstitutional encroachment into provincial power of property and civil rights.

Regulation of specific industries, contracts and property is provincial power. Not proper for trade and commerce power (see GM test above)

i. pith and substance was regulation of participants in the public capital markets of Canada and transactions relating to securities, a provincial power

ii. Merely because something is of general interest throughout Canada is

not enough to create federal jurisdiction

iii There is no distinct and different federal purpose so double aspect

doctrine does not apply. “Divison of powers in the Constitution Act on economic subjects was designed to permit provinces to develop their local economies in the way they choose. Federal government seeking to displace a whole body of existing valid provincial law with federal enactment”


Any power that is not within a provincial head of power must be within the power of the federal government through POGG. The POGG power has spawned three branches of legislative power (1) The National Concern branch (2) The Emergency branch (3) The ‘Gap’ branch

National Concern - Matters which begin as local but acquire national dimensions or concern

The test is whether the matter of legislation “goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the dominion as a whole.” (Canada Temperance Federation )

Aeronatuics (Johannesson v. West St. Paul, 1952)

National Capital Region – an area around Ottawa in Ontario and Quebec (Munro v. National Capital Commission, 1966)

Marine Pollution (R. v. Crown Zellerbach, 1988)

Atomic Energy (Ontario Hydro v. Ontario, 1993 labour relations in Ontario Hydro’s nuclear plants are federal ~ but also decided on s.


National Concern – Requirements - When does an issue become the “concern of the Dominion as a whole”? Where the uniformity of the law throughout the country is not merely desirable, but essential. Where the problem is beyond the power of the province to deal with it. Where the failure of one province to act would injure residents in other provinces. To qualify as a matter of national concern the matter must have “a singleness, distinctness and indivisibility that clearly distinguishes it from matters of provincial concern” (R v Crown Zellerbach) Distinctness is a safeguard against the concern that this branch would tend to grow to absorb all federal power. Inflation was found not to be distinct enough to count as a matter of national concern (Anti-Inflation Reference, 1976).

Emergency – Emergency must be temporary – Hogg says difficult to challenge existence of emergency


War (Fort Frances Pulp v. Man Free Press, 1923)

Rent control during war (Wartime Leasehold Regulation Reference, 1950)

Apprehended Insurrection – Front de Liberation du Quebec, 497 arrested and

detained Inflation can be considered a national emergency (Anti-Inflation Reference, 1976 - established wage, price, profit, salary regulations).

Gap Filling – fills gaps in the scheme of the distribution of powers (very few)

The incorporation of companies of a federal nature.

Federal Institutions and agencies

Offshore mineral resources (not pollution)

Canadian treaties (imperial treaties are mentioned)



Exclusive federal jurisdiction to make laws in relation to “criminal law …

including procedure”: s.91(27) Provinces have an “ancillary” power to include punitive provisions (“fine, penalty

or imprisonment” (See Chatterjee) ) in otherwise valid provincial laws: s.92(15); also to “administer justice” and manage “criminal jurisdiction:” s. 92(14). Criminal law not as centralized as other federal heads of power

§91(28) – federal power of penitentiaries – sentence of 2 years or more

§92(6) – Provincial power over prisons – sentence < 2 years


Overlapping jurisdiction? Ease of federal expansion by “criminalization”? Ease of provincial expansion by “regulation,” broadening “property rights”? Incidental effect vs. technique of mutual modification?

When does a law fall under criminal jurisdiction? The criminal law power does not give Parliament an unconditional right to take action to

protect morality, safety and public health. HumanReproduction ) that a law:

Criminal Law Requires (Reference re


Supress an evil or safeguarding a threatened interest (The evil must be


real and the apprehension of harm must be reasonable) Establish a prohibition


Accompany that prohibition with a penalty

It is not enough to identify a public purpose that would have justified Parliament’s action.

Ward v Canada – federal regulation prohibiting sale of baby seals not criminal law despite regulation prohibited killing baby seals. Not criminal law as law not concerned about inhumane methods of killing seals but with managing fisheries which was not purpose that could sustain criminal law

The morals of society were sufficient to base criminal laws (R v Malmo Levine

Harm principle not requirement - marijuana laws valid) . Other examples include:

Protection of Environment

Animal Cruelty or bestiality


The federal jurisdiction over criminal law includes:

Manufacture of dangerous food and drugs and misbranded products

Advertising of tobacco products (as the protection of the public; RJR MacDonald v. Canada (1995), but the law was struck on charter grounds)

Protection of the environment (R v Hydro Quebec)

Gun control (re Firearms Act)

Sunday Observance (Big M Drug Mart) – Struck on charter grounds

Criminal Law and Civil Remedies

federal government can create statute specific torts (GM v City National Leasing )

Victim compensation provisions of Criminal Code valid because of criminal

character (R v Zelinski)

Provincial Penal Laws

Constitution Act, 1867, s. 92(15) – Provinces have jurisdiction over: “The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province”

Penalty sanctions usually upheld (See Chatterjee)



Not a separate head of power

Language of Statutes S. 133 of 1867 Act: Federal Parliament and Quebec legislature – either English or

language of the legislature) does not supersede s. 133 – must be official statutes

French may be spoken; statutes passed must be in both languages Manitoba Act: similar to s. 133.

Ss. 17-19 of the Charter: similar requirements applied to New Brunswick

Quebec (A.G.) v. Blaikie : Quebec Charter (making French the sole

in both languages in Quebec. Manitoba Language Reference (1985) SCC: almost all Manitoba statutes held invalid because enacted in English only, contrary to s. 23

Temporary suspension of invalidity – Court relied on the unwritten

constitutional principle of “rule of lawCould not allow English to prevail over French if conflict – equal authority given to both, no inferiority of one language

Language of Courts S.133 of 1867 Act: English or French in federal courts or courts of Quebec

Blaikie: Permission to use English in defined circumstances insufficient

s. 23 of Manitoba Act and s. 19(2) of Canadian Charter (New Brunswick) are similar

“Courts” includes federal, provincial courts and administrative tribunals (Blaikie)

The 7 other provinces are under no such constitutional requirement

Société des Acadiens v. Association of Parents (SCC 1986, Hogg. p.56-18)Claim one of three judges did not understand French

Beetz J. repeats his Macdonald view for majority (choice of “either” of the

two languages used by the court was not to be governed by the accused). Distinction between language rights and right to fair hearing

HOWEVER - Court’s current position: language rights deserve large, purposful

interpretation (DesRochers v Canada)

S. 14 of Charter guarantees right to an interpreter to party or witness (see R. v.

Tran- accused is not present at trial if they do not know what is going on)

Government S. 20(1): Right to communicate with and receive available services from federal government in English or French


Where there is significant demand or

where it is reasonable due to nature of office

s. 20(2): same right in New Brunswick, without the qualifications

DesRochers v. Canada


English & French services must be of equal quality

Equality is substantive – users of service must be getting equal benefits(not formal equality)


Commerce Constitution does not protect language rights in private (commercial) settings

Language laws may offend freedom of expression (Charter s. 2(b))


Ford v. Quebec: French-only law for signs and ads struck down

Devine v. Quebec: Requirement of French without prohibition on other languages offends s. 2(b) but is saved by s. 1


Education S. 23 of Charter: 3 categories of citizens have right to minority language education (Not absolute right - where numbers warrant)


Mother tongue of parent

Language of education of one child

education in a language all their siblings are entitled to receive their

Where one child has received

> does not apply in Quebec unless Que decides to adopt it (s. 59 of 1982 Act) Language of primary school education of parent in Canada



education in the same language

For mobility, continuity

Mahe v. Alberta (SCC 1990, Hogg p. 56-31)

Issue: Are parents entitled to powers of management of children’s education?

“Where numbers warrant” creates sliding scale

In Mahe, numbers warranted guaranteed number of Francophone reps on school board, but not a separate school board.




Flows from Aboriginal peoples occupation of the land in organized societies (“nations”) at the time of European colonization



Takes broad view –

Validity depends on pith and substance

If relates to Indians then valid federal law

Jurisdiction to make laws (3 orders of constitutional government):

Federal [s.91, especially s.91(24)]

Provincial [s.92]

Aboriginal (rights of self-government; treaty rights: s.35(1) Constitution Act, 1982)

Federal Jurisdiction

1. s.91(24) two branches: (i) “Indians” and (ii) “lands reserved for the Indians”

(i) “Indians” not defined in the Constitution, but probably has the same meaning as

“Aboriginal peoples” in s.35 of the Constitution Act,1982

(ii) “lands reserved for the Indians” includes reserves and lands subject to unsurrendered Aboriginal title 2. other heads of s.91 power

Provincial Jurisdiction

provinces cannot pass laws that are in pith and substance in relation to Aboriginal

peoples and lands; e.g., provinces lack the power to pass laws extinguishing Aboriginal rights provincial legislation that is validly enacted pursuant to s.92 heads of power can

affect Aboriginal peoples and lands, because of the operation of the pith and substance, necessarily incidental and double aspect doctrines: see, e.g., Kitkatla Band 2002 SCC 5 exception to the general rule that provincial laws can apply to Indians (1) If the law singles out Aboriginals (2) “Indianness” cannot affect aboriginal rights or treaty rights – Cannot extinguish rights (3) Paramountcy – if federal law covers Indians on subject (4) Natural Resources Agreement (5) S. 35 “aboriginal and treaty rights” (broader than second exception)

Indian Act s. 88

applicable to and in respect of Indians in the province S. 88 expands the body of provincial law that is applicable to Indians. Provincial laws affecting Indianness, which do not apply to Indians of their own force, are made applicable by s. 88. Provincial laws can, by s. 88, infringe on aboriginal rights, but they cannot extinguish aboriginal rights. Paramountcy continues to apply Any conflict between a treaty and provincial law must be resolved in favour of the treaty

all laws of general application from time to time in force in any province are

Constitution Act (1982) - §35

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are

hereby recognized and affirmed. s. 1 ‘justified infringement’ does not apply to s. 35

s. 33 ‘legislative override’ does not apply

S. 32 the rights are effective against more than just the government – private

parties prohibited from infringing aboriginal rights S. 24 the rights are not enforceable under the Charter – Cannot use to seek court remedy

Section 35(1) of the 1982 Constitution Act protects:

1. Aboriginal rights

Activity-specific rights (e.g., Sparrow, (1990); Van der Peet, (1996) Aboriginal title (Guerin; Delgamuukw (1997) Self-government rights (Pamajewon (1996)

2. Treaty rights (Marshall 1999 SCC)large and liberal interpretation doubts resolved in favour of Aboriginal signatories sensitivity to Aboriginal perspective honour of the Crown common intention

Section 35(1):

Recognizes and affirms existing Aboriginal and treaty rights

Rights are existing if they were not validly extinguished prior to 1982 – see

Sparrow, Federal and provincial governments may not interfere with the exercise of

existing Aboriginal rights or treaty rights Unless they are pursuing a compelling and substantial objective in a manner compatible with the honour of the Crown (Sparrow)


Property rights: common law of Aboriginal title

Treaty rights

Aboriginal rights

Provinces lack the power to extinguish (Delgamuukw)

Prior to 1982: parliamentary supremacy – aboriginal rights protected by treaty, statute or the common law could be violated by validly enacted legislation; only constraint was the federal division of legislative power

Post-1982: s. 35 of the Constitution Act, 1982; s. 25 of the Charter

To extinguish, the Crown must show that it had a clear and plain intention to

completely remove the ability to exercise the right (progressively restrictive regulation does not qualify: Sparrow If an Aboriginal or treaty right was not extinguished by the clear and plain intention of the federal Crown prior to 1982, then the entire right exists for the purposes of s.35(1) (not just the unregulated portion as of 1982)

Guerin v. The Queen - Beginning of modern aboriginal rights Aboriginal rights that have not been extinguished are enforceable by the courts – requires clear and plain intention – Even a right regulated in minute detail is not extinguished Only total elimination of rights constitutes extinguishment Rights extinguished prior to 1982 cannot be revived by §35 Aboriginal interest in land is sui generis (one of a kind):

1. They can only be transferred to Crown

2. Upon surrender of title to the Crown, the Crown is under a fiduciary obligation towards aboriginals

Fiduciary obligations of Crown

“Honour of the Crown

R v Sparrow – Fishing using improper sized net

Does s. 35(1) provide constitutional protection similar to the Charter?

(1) Is there an aboriginal right (s. 35)? (Van der Peet is used to determine – practices, customs or traditions integral (defining or of central significance) to distinctive culture) (2) Was it extinguished prior to 1982? (existing per s. 35 – R must show right

extinguished) (3) Is there an infringement of the right?(in purpose or effect)

Sparrow has established a 4 part test:

Onus on challenger to show infringement

Does the regulation impose undue hardship – significant limitation on exercise of aboriginal right

Does the regulation deny the rights holders their preferred means of exercising that right (4) Can the infringement be justified? Court must be satisfied (balance of probabilities) that:


asserted legislative objective is “compelling and substantial”(eg

conservation); 2) it is doing so in a manner that is compatible with the honour of the crown

R. v. Van der Peet – sells fish contrary to food fishing licence Is there an aboriginal right? Aboriginal practice must be “integral to culture”

1. Central significance to aboriginal society

2. Defining characteristic of the society

3. Developed before European contact

4. Not a practice that has developed solely as a response to European influence (except for Metis then time of effective European controlPowley – DIFFERENT REGION TO REGION)

Limits on Aboriginal Rights

Despite the fact that s.35(1) is not part of the Charter (and therefore not subject to s.1 or s.33), government may validly interfere with existing Aboriginal or treaty rights if it can demonstrate on the balance of probabilities that:

1. it is pursuing a compelling and substantial objective (e.g., conservation);

2. in a manner compatible with the honour of the Crown.

see Sparrow 1990 SCC: priority of access to salmon fishery required after conservation measures met

Where right has no internal limit (ie, commercial use) then right can be curtalied for pursuit of economic and regional fairness (Gladstone 1996, Hogg pg. 28-47)

Duty to consult and accommodate -The duty to consult with Aboriginal peoples arises whenever the Crown is contemplating a course of action that could have an impact on Aboriginal rights or on lands subject to a claim of Aboriginal title, even if the Aboriginal rights or title at issue has been asserted but not yet proven –

The degree of consultation depends on the strength of the claim and the severity

of the resource, however it must be meaningful consultation.

Haida Nation

duty to engage in meaningful consultation and accommodation as part of a process or reconciliation flowing from the Crown’s duty of honourable dealing: Haida Nation 2004 Mikisew Cree 2005

exists prior to (Haida) and after (Mikisew Cree) the legal recognition of Aboriginal or treaty rights

ABORIGINAL TITLE The right to exclusive occupation of land, which permits the aboriginal owners to use the land for a variety of purposes Aboriginal rights can exist where aboriginal title has been surrendered

i.e. Aboriginal’s can have a right to fish on land even though they don’t own it (R. v. Adams, 1996 SCC)

Delgamuukw v. B.C. – Claim of ownership of large area of BC – No treaty re land

Sui generis nature of title (differences between aboriginal and non-aboriginal title):

1. Source of title in historical occupation (pre-sovereignty not pre- contact) and possession of the land;

2. Range of use (must not be inconsistent with nature of attachment to land – ie strip mining)

3. Title inalienable, except to the Crown;

4. Title held communally and decisions with respect to the land are made communally

5. Constitutionally protected

Content of title:

1. right to exclusive use and occupation of the land for a variety of purposes

(not just for practices integral to distinctive Aboriginal culture);

2. cannot be used for purposes irreconcilable with the Aboriginal nation’s attachment to the land

Proof of aboriginal title: (Delgamuukw)

1. occupation prior to sovereignty; (different from Van der Peet)

2. continuity (“substantial connection”) between present and pre-sovereignty occupation (if present occupation is relied on must show continuity with pre- sovereign occupation – some disruption OK);

3. exclusive occupation (“intention and capacity to maintain exclusive control”)

Must rely on both perspective of aboriginals and common law placing equal weight on each.

Admission of oral history allowed – Proof of pre-sovereign occupation does not involve adherence to strict rules of evidence. no need to prove Van der Peet “integral to distinctive culture” test regarding title

Infringement of Aboriginal Title Aboriginal rights and title are not absolute. May be infringed, both by the federal (e.g., Sparrow) and provincial (e.g., Côté) governments.

Justification (Sparrow test applies)

1. Govt. pursuing a compelling and substantial objective ( “the development of

agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims”- Delgamuukw);

2. in a manner compatible with the honour of the Crown. Fiduciary duty ( eg - 1.

Aboriginal priority in process and allocation of resource - reflects prior interest in the land; 2. Title includes right to choose uses of land by involvement of aboriginal peoples in decisions taken with respect to their lands. There is always a duty of good faith consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified; 3. Compensation - amount of compensation payable will vary with the nature of the particular aboriginal title affected and with the nature and severity of the infringement and the extent to which aboriginal interests were accommodated)

Extinguishment of Aboriginal Title Only a clear and plain intention to extinguish will be accepted

Aboriginal title to land can be extinguished in two ways:


Voluntary surrender to the crown


Constitutional Amendment


Prior to 1982, title could also be extinguished through federal legislation

TREATY RIGHTS – Interpretation - §35 gives constitutional protection to treaty rights

R. v. Badger - hunting for food on land surrendered by treaty (1) Words in written document must not be interpreted technically but, in sense would have been understood by aboriginal people (2)The honour of the Crown is always at stake when dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfill its promises. (3) Ambiguities in wording resolved in favour of aboriginal peoples; corollary: limits will be narrowly construed. Sparrow test applies to treaty rights as well as aboriginal rights

R. v. Marshall - fishing for sale without licence – Def relied on treaty and not aboriginal rights – Treaty would not trade commodities except to managers of truck houses (trading post)

Treaty must be interpreted in light of context

Written terms of the treaty did not record the entire agreement. The court had to look to the intention of the parties and remember the honour of the Crown.

Extinguishment of Treaty Right Treaty rights can be extinguished in the same was as Aboriginal rights:

(1) Voluntary surrender to the crown (2) Constitutional Amendment (3) Prior to 1982, title could also be extinguished through federal legislation

Only a clear and plain intention to extinguish will be accepted by the courts


Aboriginal right to self government extends only to activities that took place

accompany Aboriginal title because title is a communal right, and uses to which

before European contact and only to those activities that were an integral part of aboriginal society (Pamajewan) may be constitutionally protected as Aboriginal rights if they meet the Van der

Peet test of “integral to the distinctive Aboriginal culture” at the time of contact

land is put are decided communally: Delgamuukw courts are reluctant to decide claims to self-government rights at a “level of excessive generality”: Delgamuukw; Pamajewon 1996 SCC

Possible to enter into self government agreements which would be preferable to

judicial interpretation as provides greater certainty. Delgamuukw indicated courts preference for negotiated solution

have been set out in treaties with the Nisga’a (2000), Tlicho (2003) and Labrador

Inuit (2005) these treaties confer on Aboriginal governments a range of legislative powers,

some subject to Aboriginal paramountcy, others to federal or provincial paramountcy validity of using the treaty process to entrench self-government powers has been

upheld Rights entrenched under s. 35 allow future agreements to be constitutionalized

Section 25 would allow aboriginal governments to design programs and laws which are different, for legitimate cultural reasons, and have these sections considered as relevant should such differences invite judicial review under the Charter


Applies to:

New laws passed by parliaments or legislatures

Actions taken by Government

Delegated duties?

Inaction taken by Government (silence)?


Other parts of the Constitution?

Common Law?

Private Citizens?


Illegal aliens in Canada?


Acting for the government?

Acting privately?

Corporations? S. 2, 7, 8, 9, 10, 12, 17 “Everyone has the right” S. 11, 19 “any person” S. 20 “any member of the public” S. 24 “anyone” Hogg believes all of the above are synonymous and included corporations

i.e s. 2b freedom of the press would be meaningless unless a newspaper corporation could invoke it However, some rights are, by their very nature, not available to corporations

s. 2a freedom of conscience or religion.

s. 7 life, liberty and security of the person.

S. 24, remedies, can be used by ‘anyone’ including corporations.


**** Charter Analytical Framework:


Does the Charter apply to the facts?

section 32: government action (negative rights) or government inaction (positive rights)?

section 33: override in legislation?

does the Charter right or freedom apply to the claimant? DOES CLAIMANT HAVE STANDING? (eg only citizens can claim rights under ss. 3, 6 or 23)

Is the court the correct forum ?– Superior court always correct. other

courts and tribunals,



Does the challenged government action interfere in purpose or effect with the

exercise of a Charter right or freedom? (ss. 2-23)


If so, is the interference with the exercise of rights and freedoms a

“reasonable limit”, “prescribed by law”, that can be “demonstrably justified in a

free and democratic society”? (s.1) (Oakes test)

4. If not, what is the appropriate remedy? (s.24 and s.52 of the Constitution Act,

1982) – Courts given discretion over appropriate remedy Who can clam Charter rights?

“Citizens” have rights pursuant to s.3 (right to vote), s.6 (mobility rights) and s.23 (minority language educational rights)

“Everyone” (includes any person resident in Canada, sometimes citizens

abroad, and corporations) may claim rights pursuant to ss.2, 8-10 and 12 Section 7 applies to “everyone”

Section 11 applies to “any person charged with an offence”

Section 15 applies to “every individual”


Government is bound by the Charter

s.32 and 30 – federal and provincial/territorial gov’t

Applies to any body exercising statutory authority

e.g., municipalities, police, administrative tribunals, law societies, even if independent of gov’t., Applies to government inaction, legislative silence and exclusions

e.g., Vriend (S.C.C. 1998), Dunmore (S.C.C. 2001) subject to certain limits e.g., parliamentary privilege, New Brunswick Broadcasting (S.C.C. 1993)

Who is a governernment actor?

1. No level of govt can enact laws contrary to the Charter. Nor can they delegate to a Crown agent action that is contrary to Charter

2. Where, by statute, govt delegates non-governmental powers to a private body, Charter does not apply. But where it makes a private actor its agent to deliver govt programs or services, the Charter does apply (Eldridge) .

3. The key issue is not the nature of the entity (state or private), but the nature of the activity performed.


The Charter does not apply to private litigation between private parties: Dolphin Delivery


The Charter does apply to adjudication of contracts negotiated between a govt actor and a private party: Levigne


The Charter applies to private entities action as agents of govt in delivering government programs, policies or services: Eldridge


The Charter applies to the common law when it is relied on in litigation where the government is one of the parties: Dolphin

- Where entity is not formally part of govt, focus on the activities performed, not on the type of entity (eg. Private or public). Look for govt delegation of govt powers, action on behalf of govt (agency) or delivery of govt service (Eldridge)


so employment rules enacted by a private actor are not state action (Stoffman) but delivery of state funded govt services like health care by the same private entity are subject to Charter: Eldridge.


merely being created by statute (like corporations), subject to government regulation (like hospitals and universities), in receipt of significant government funding (like universities or hospitals), serving an important public function or providing an important public service or does not make a body a government actor or agent: McKinney.


A Board primarily appointed by govt whose rules must be approved by

govt is not a govt actor or agent unless govt actually controls the entity. Hence Stoffman not subject to Charter but Kwantlen/Douglas is (community college).

- Government inaction may be subject to the Charter where:


the Charter imposes positive obligations such as funding minority language education: Mahe v Alberta


comprehensive federal or provincial legislation exists and a historically disadvantaged group is deliberately omitted from the Act: Vriend

Executive Branch (cabinet, ministers, departments or ministries) Statutory actors (police, tribunals) Judiciary (2 lines of reasoning) –generally does not apply (Dolphin)


Dolphin Delivery (1986) (a private action) Charter did not apply


to courts as not government – (a court injunction issued against a union - gov’t under s.32 means only the executive branch) B.C.G.E.U. v. B.C. (1988) Charter applied to injunction prohibiting picketing of the courts - infringed s.2(b), but justified under s.1

The ratio we take from these cases must be that a court order, when issued as a resolution of a dispute between private parties, and when cased on the common law, is not governmental action to which the Charter applies.

Corollary = Charter does not apply to:

i. private individuals; or

ii. private organizations

unless they are subject to government control or implementing government programs/functions or exercising statutory powers

Examples of private organizations or actors that are not subject to the Charter:

e.g., - security guards found drugs in locker, R. v. Buhay (2003)

not subject to

Charter as not subject to government control e.g., -private employers, Re Bhindi (1986) but the Charter does apply to

government employers Lavigne v. OPSEU (1991)) e.g., -universities, McKinney v. U. of Guelph (1990) but community college subject to substantial degree of government control was subject to Charter

Douglas/Kwantlen Faculty Ass’n v. Douglas College (1990) e.g., -hospitals, Stoffman v. Vancouver Gen. Hospital (1990), But Eldridge v. B.C. (1997), unless acting pursuant to a specific government policy or program,

Eldridge v BC – Failure to provide sign language at hospitals. Legislatures may not enact laws that infringe the Charter and they cannot authorize or empower another person or entity to do so. Even though a legislature may give authority to a body that is not subject to the Charter, the Charter applies to all the activities of government whether or not they may be otherwise characterized as "private" and it may apply to non-governmental entities in respect of certain inherently governmental actions.

Entities will be subject to the Charter not only if they are characterized as government but ALSO if they perform an act properly characterized as a governmental activity. This analysis involves looking not only at the organization itself but at the specific act which the organization performs (i.e., the implementation of a specific statutory scheme or a government program. If the act is found to be an act of government the organization is subject to the Charter with regards to that act (and not in respect of its other private activities).

Two types of Charter violations – Must determine which type of violation present


and not saved by sec. 1 – Court will strike down pursuant to sec 52(1) Const Act 1982


Legislation remains valid but remedy may be sought under 24(1) of the Charter.

Legislation found to be unconstitutional on its face because it violates Charter

Charter may be infringed by actions of a delegated decision maker in applying it.

Greater Vancouver Transportation Authority v Canadian Federation of Students -

Claimants challenged refusal of public transit system to post political advertisements on the sides of buses

There are 2 ways to determine whether the Charter applies to an entity’s activities (per Eldridge):

1. by enquiring into the nature of the entity; or

2. by enquiring into its activities --- An entity which is not itself government but

performs governmental activities is subject to the Charter only in relation to those activities which are governmental in nature


Charter applies to the common law when relied upon by a government actor (e.g., court acting on own motion, not in private dispute – BCGEU)

The Charter does not apply to the common law in litigation between

private parties Hill v. Church of Scientology (1995) However, even in private litigation, the common law must be applied and developed in a manner consistent with “Charter values”: Dolphin Delivery

(1986); Hill (1995)

Dagenais v CBC


Time Charter applies from 1982 onwards

Mack (ONCA 2002) , Benner (SCC 1997)

Territorial limits

foreign governments are not bound by the Charter per s.32, Schreiber v. Canada (1998) - letter by DOJ to Swiss govt requesting bank records; R. v. Harrer (1995) accused in Canada cannot object to statement given to U.S. law enforcement officers who failed to comply with Charter standards

Extra-territorial limits,

(2007) Canadian police seize evidence in Turks and Caicos Islands. Charter applies only to actions inside Canada BUT Kadhr (2008) –Charter can apply in exceptional cases ie Canadian involvement

state would breach s.7 of the Charter, U.S. v. Burns (2001) - reversing Kindler v. Canada (1991)

before constitutionally deporting person who may face torture in country to which he is returned, Suresh (2002)

(i)Charter generally does not apply to Canadian actors in a foreign state, Hape

extradition without assurances that death penalty will not be imposed by foreign

s.7 of the Charter requires cogent evidence of danger to public safety in Canada


about balancing rights but about legislature passing a law that is known to be in conflict with Charter – Law immune from Charter challenge. Used infrequently – 1) commitment to Charter and 2) Political resistance to its use

s.33 enables federal or provincial governments to enact legislation that is

expressly declared to operate “notwithstanding” ss. 2 or 7-15 of the Charter (other Charter rights cannot be overridden). Declaration must be in statute but can also be inserted into a past statute through amendment

5 year “sunset”)

a s.33 “override” is valid only for up to 5 years (any re-enactments also subject to

s.33 serves to remove any requirement to justify under s.1

S. 33 can be used to infringe:

s. 2 ( fundamental freedoms)

s. 7 – 14 (legal rights)

s. 15 (equality rights)

S. 33 cannot be used to infringe:

s. 3 – 5 (democratic rights)

s. 6 (mobility rights)

s. 16 – 23 (language rights)

s. 24 (enforcement provisions)

s. 28 (sexual equality clause)

Ford v Quebec - The constitutionality of Quebec’s 1982 standard override clause was challenged Held: references to “each of the Acts” adopted by Quebec was sufficient, Omnibus reference to “ss. 2 and 7-15” was sufficient, as legislature entitled to override more than one Charter provision. Importantly, S.C.C. held that the normal presumption against retroactivity applied to s.33, thus Quebec could not retroactively override Charter rights

15. LIMITATIONS ON RIGHTS - §1 - Rights are not absolute – limits can

be placed on rights Basic Elements

“guarantees” rights and freedoms subject only to reasonable limits

pressing and substantial objective

prescribed by law

proportionality test


rational connection


minimal impairment


proportionate effects

“prescribed by law”


Limitation must originate in a statute, regulation or common law rule


If not – state action not justifiable


law must be accessible and intelligible


If not, action void for vagueness


Legally unauthorized acts cannot be s.1 limits – ie police breaks law cannot use s 1 to justify actions


Limiting law must not be too vague, ie, must provide an intelligible basis for legal debate; formulated with sufficient precision to guide conduct

(Irwin Toy ???)

s. (1) contains a two stage analysis: - PROOF ON BALANCE OF PROBABILITIES

(1) Decide whether the challenged law has the effect of limiting one of the guaranteed rights.

Burdon on challenger to show prima facie violation of fundamental right

Court construes rights “purposively” and “generously” rather than

legalistically Either purpose or effect of law may be found to infringe Charter (Big M Drug Mart)

(2) Decide whether the limit is reasonable and justified in free and democratic society.

Burdon on government to justify law is a reasonable limit

R v Oakes - possession of narcotic presumed for purpose of trafficking unless accused can establish the contrary

Provides framework for what limits are justifiable

Burdon of Proof is balance of probabilities

High standard of justification as law does infringes protected right

Section 1 Analysis - Oakes Test

1. Does the Charter apply? (Chapter 13–Application)

2. Is there an infringement? (onus on claimant)

ie Possibility of conviction despite reasonable doubt (Oakes)

3. Section 1: (onus on government)

Prescribed by law (was the act lawful or not?)

Oakes Test

a) Pressing and Substantial Objective – What did legislators hope to achieve by passing the law – what is the objective of infringing measures? sufficiently important to justify overriding a constitutional right or

freedom (Big M) (is the law trivial?) – Standard must be high

Purposes directly contrary to Charter values don’t qualify (Big M) Government must rely on the legislative intent at the time of enactment not a new or shifting objective (Big M)

Government cannot rely on ultra vires objective (Big M)

Fiscal restraint without more cannot qualify a pressing and

substantial BUT it can where there is fiscal crisis (N.A.P.E)

Almost all cases pass this stage except Lords Day Act and Big M

How objective is framed has an important impact on analysis

b) Reasonable and Demonstrably Justified

i. Rational Connection – Easily satisfied in most cases

The law must be “carefully designed to acheive the

objective in question”, it should not be “arbitrary, unfair, or based on irrational considerations” Law’s means must contribute to the achievement of its objective

ii. Minimal Impairment – turning point in most § 1 cases

should impair “as little as possible” the right or freedom in

question – Must be least restrictive manner of accomplishing the objective of the impugned provision

you can always think of a less restrictive way…

would allow the legislatures some scope in not choosing the

most minimally impairing law the court ought not to substitute its opinions as to where to draw a line that is inevitably somewhat arbitrary (Edwards Books)

analysis are:

Even if rationally connected to the objective, the means

Requires consideration of alternatives HOWEVER since

judges should allow some ‘margin of appreciation’ which

Some factors the courts consider in their contextual

o the importance of the rights or freedoms at issue in the specific context;


whether the legislature carefully weighed the competing rights or freedoms at issue;


whether the legislation protects a vulnerable group (eg Irwin Toy );


whether the claimant is a member of a relatively powerful group (Irwin Toy);


whether the issue requires the consideration of complex social science evidence (Irwin Toy);


whether the law seeks to reconcile the legitimate claims of competing groups (Irwin Toy);


whether the law allocates scarce resources (NAPE).

iii. Proportionality – Is Charter infringement too high a price for society to pay for the benefit of the law

Must be reasonable balance between the negative effects on the exercise of Charter rights or freedoms and:


The importance of the objective (Oakes); and


The positive effects of the governmental action (Dagenais) (Wilson Colony)

o Balance the negative effects on the right or freedom vs positive effects of infringing measure Oakes also applies to common law (Swain, Daviault)


Federalism: legislation concerning religion could be valid by either Parliament or

provinces (Edwards Books) Guaranteed to “everyone”

“Conscience” – include non-theocentric belief systems

Subject to section 1 – If infringement must do sect 1 analysis

Syndicat Northcrest v Amselem Condo prohibited construction on balconies -- Private dispute Canada Charter does not apply – decided on Quebec Charter

1. Broad definition of religious freedom:

Need not be part of established religious tradition, or even shared with others. It could be unique to the claimant

Covers obligatory and voluntary practices that are connected to religion

2. Subjective test:

All that was required was that the claimant sincerely believes that practice is of religious significance

Expert testimony useful only for credibility

The inquiry into sincerity should be as limited as possible

HELD: could invoke religious freedom to resile from the contract and were allowed to

build the Succuhs.

Bruker v Marcovitz – Backtrack from Syndicate Northcrest – husband invoked religious freedom as reason not getting jewish divorce (“get”) HELD - bound by the contract to obtain the ‘get’ in spite of his religious freedom.

Alberta v. Hutterian Brethren of Wilson Colony – Photo required to get drivers licence HELD – Upheld under sect 1 – freedom of religion minimally impaired - alternative measures would not meet objective. Negative impact on Hutterites did not outweigh positive effects of law

Same-Sex Marriage Reference A proposed act of Parliament legalzing same-sex marriage contained a section stating “Nothing in this Act affects the freedom of officials of relgious groups to refuse to perform marriages that are not in accordance with their religious beliefs.” The SCC held that the guarantee of religious freedom is broad enough to protect religious officials from being compelled by the state to perform marriages that are contrary to their beliefs. They also indicated that the compulsory use of sacred places (churches) for gay marriage would also be forbidden.

Funding denominational schools - Constitution Act, 1867, s. 93 requires the government to fund Protestant and Catholic school boards. Government does not fund other religious schools Adler v. Ontario (1996) – the SCC said that this inequality was not a breach of religious freedom (2(a)) or equality (15).


“freedom of thought, belief, opinion and expression, and freedom of the press

Expression is any non-violent activity that conveys a meaning

Protection afforded by s.2(b) is content-neutral; all communicative activity is

protected provided the method and location of the expression does not undermine the purposes of the guarantee – The content of a statement cannot deprive it of the protection under 2(b) (R v Keegstra, R v Zundel) The focus of debate in most s.2(b) challenges to laws or policies is the s.1 proportionality analysis

Freedom of expression can be violated in purpose or effect – 3 ways

1. Expressive or outright prohibition of activity

2. If law acts to 1) control access to message; 2) control access to meaning; 3) limit ability to communicate (control of physical consequences without concern for meaning – eg noise restrictions)

3. Is government trying to control physical components that would limit freedom (eg handing out pamphlets

Means of Restricting Expression Prior restraint or administrative censorship (e.g. Ontario film review board, courtroom publication bans, importation restrictions) Criminal offences (e.g. blasphemous libel, defamatory libel, sedition, alarming her majesty, treason, hate propaganda, obscenity, child pornography, criminal harassment) Regulatory offences (e.g., re professional advertising, election advertising, bilingual labelling etc.) Court and tribunal rulings in civil actions (e.g., damages for defamation,

injunctions against picketing) Policies or rules restricting expression on public property or in public media (e.g., restrictions on access to government property; transit advertising)

Language requirements (Quebec’s laws re: French)

Licensing of broadcasters

Time, place and manner laws (e.g. noise by-laws; publication restrictions on

election polls; restrictions on parades, demonstrations or pickets) Compelled expression (e.g. consumer labelling requirements; tobacco warnings – RJR McDonald v Canada)

Commercial Expression – Protected by 2(b)

1) it is a type of expression

(2) it is difficult to distinguish from other types of expression (political, social etc.)

(3) allows consumers to make choices

Commercial signs are protected expressions (Ford v. Quebec 1988)

Advertising to children is protected (Irwin Toy – ban upheld under §1)

Picketing – Protected by 2(b) The purpose of picketing is to advise the public that the picketers are on strike, to dissuade strikebreakers from entering the workplace, and to encourage consumers to boycott the goods or services produced.

Dolphin Delivery 1986

BCGEU v. BC 1988

Hate speech – Material that promotes hatred against minority groups Analysis should not be limited to criminalcode but may provisions in human rights legislation also applies When speech in its effects interferes with equality rights, equality rights will prevail

Defamation Grant v. Tortstar Corp. (2009)

Overruled Hill v. Scientology (1995)

Common Law of Defamation should be modified to recognize a defense of “Responsible Communication”

(i) The publication must be on a matter of public interest

(ii) The publication must be responsible (due diligence)

** This was to get over the Libel Chill in the media

Defamation has always been more forgiving of opinion through the doctrine of Fair Comment

(1) opinion is based on fact

(2) is in a matter of public interest

(3) is one that an honest (but not necessarily reasonable) person could hold


1. Does the activity at issue convey a meaning in a non-violent form?

2. Is the method and location of the expression consistent with the purposes underlying s.2(b)?

3. Is the purpose of the impugned government action to control expression by reference to its content? If so, violation established Does the impugned government action have the effect of suppressing expression


related to seeking truth, democracy or self-realization? If so, violation established

See Irwin Toy and City of Montreal


1. Pressing and substantial

2. Proportionality – a) Rational Connection; b) minimal impairment; c) proportionality

Montreal v. 2952-1355 – access to public property Facts: a Montreal strip club was broadcasting music and DJ commentary into the street. Montreal had a by-law prohibiting noise produced by sound equipment from escaping outside. Issue: Did the by-law infringe s. 2(b)? Answer: yes it infringed s. 2(b), but it was justified by s. 1.

(1) Purpose: to control noise that interferes with the enjoyment of the environment (2) Is it a public place where one would expect constitutional protection for expression on the basis that expression in the place does not conflict with the purposes of s. 2(b), namely

(3) To answer this question, the following factors should be considered:

whether other aspects of the place suggest that expression within it would undermine

democratic discourse truth finding self-fulfillment
democratic discourse
truth finding

from Irwin Toy v Quebec

the historical or actual function of a place; and

the values underlying free expression

(4) Infringement Justified?

S. 1 Analysis applied.

No contribution to democracy

No contribution to truth

Played a role in personal fulfilment.

The prohibition was justified under s. 1



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.” Life, liberty and security of the person are three distinct claims. Violation of any one can give rise to §7 violation

§7 Analysis 1) Claimant must show there an infringement of life, liberty, or the security of the person due to government action? 2) Claimant must demonstrate that the infringement is not in accordance with principles of fundamental justice? – if in accordance with PFJ then no violation of §7 3) Can government show the infringement upheld by a §1analysis – Oakes test? If no, 4) Remedy

Who is covered by §7?

Citizens and visitors

Legal & Illegal Immigrants Singh v. Minister of Employment and Immigration – right to refugee hearing

Not corporations – corporations cannot have life, liberty, security of the person

BUT, corporations are not “everyone” can use s. 7 to invalidate criminal

provisions (R v Wholesale Travel) Not foetuses (R v Morgentaler 1,2, & 3)

Applies to actions of Canadian government abroad if implicated in violations of international law or with consent of foreign state: Hape 2007 SCC; Khadr 2008 SCC; Khadr 2010 SCC

Liberty Liberty includes freedom from physical restraint Liberty does not include freedom from a fine, nor suspension of a driver’s licence, nor economic liberty, nor the right to do business, nor rights protected elsewhere in the charter (expression, assembly, association, vote, travel) Liberty includes the freedom to make ‘fundamental personal choices’ (Blencoe v. B.C. 2000)

Security of the Person R. v. Nasogaluak 2010 SCC – the use of excessive force by police in making an arrest is a breach of security of the persn Canadian Foundation for Children, Youth and the Law v. Canada 2004 – CC provided defence for teachers and parents spanking children, this law was challenged. SCC found that spanking did infringe security of the person, but there was no breach of fundamental justice. Cdn Foundation for Children, Youth and the Law v. Canada (SCC 2004, Hogg 47-12): spanking is deprivation of SOP (but consistent with fundamental justice) Chaoulli v. Quebec, SCC 2005: Excessive wait times in health care system = deprivation of security of the person (Court split on fundamental justice)

Rodriguez v. British Columbia, SCC 1993: SOP includes control over one’s body (but law preventing of assisted suicide did not breach fundamental justice)

New Brunswick v. G.(J.), 1999 & Winnipeg Child and Family Services v. K.L.W.

– removal of children can deprive SOP

Blencoe v. British Columbia, SCC 2000: psychological stress associated with delays can breach SOP

Gosselin v. Quebec, SCC 2002: SOP does not include minimum welfare benefits.

– §7 has not been interpreted as imposing positive obligations on the state to ensure that each person enjoyed those rights.

Property - deliberately left out of §7. Leaves room for operation of Bill of Rights

To establish violation of §7 – 2 step process


claimant must demonstrate an interference, in purpose or effect, with one of

the three interests (life, liberty, security of the person) protected in s.7; and


the claimant must demonstrate that the interference is not in accordance with

the principles of fundamental justice If get past step 2 burden shifts to government and Oakes test for justification

To qualify as Principle of Fundamental Justice – All must be met:

1. be a legal principle;

2. must be a consensus that it is fundamental to the way the legal system ought fairly to operate; and

3. must be capable of being stated with precision and yielding manageable standard or predictable results

POFJ Includes (in addition to rights 8-14) substantive and procedural rights:

No imprisonment without fault (BC Motor Vehicle Reference)

-But strict liability valid No overbreadth – least restrictive means (Heywood– vagrancy, Demers

fitness for trial- Problem of hypotheticals No disproportionality between negative and positive effects of govt action

(Malmo-Levine – Marijuana) No arbitrariness - rational connection must exist (A.C. v. Manitoba, – mature

minor; Chaoulli v. Quebec– health care) Intelligible standards (vagueness) – Vague laws will violate the principles of fundamental justice, which cause a deprivation of life, liberty and security of the person. Because:

1. the law does not provide fair notice to persons of what is prohibited, and

2. The law does not provide clear standards of enforcement which leads to arbitrariness by the government

( See Nova Scotia Pharmaceutical “unduly” lessening competition not

vague - “Adequate basis for legal debate”) Fair trial in civil and administrative context – including right to make full answer and defence

State-funded in some circumstances

Protection from extreme violations of human dignity (Charkaoui - security certificates / deportation for torture)

Bedford v Canada - prostitutes faced increased safety risks when precluded from operating indoors, hiring security, and from taking steps to screen clients. The court accepted that prostitutes faced increased safety risks where they were precluded from operating indoors with other personnel present and from taking steps to screen their clients. The impugned provisions therefore deprived them of security of the person. The living off the avails provision was intended to prevent the exploitation of prostitutes by pimps, but was arbitrary as it was actually exposing prostitutes to greater harm. Neither the communicating nor the bawdy- house provisions was arbitrary as both had some connection to the objective of controlling public nuisances. Acting in concert, the provisions were arbitrary. The living off the avails and bawdy-house provisions were overbroad. The effects of the impugned provisions were grossly disproportionate to their purposes. The communicating provision violated the prostitutes' rights to free expression, and was not a reasonable limit on such freedom as it prohibited communications other than simply those contributing to social nuisance.

“The laws individually and together force prostitutes to choose between their liberty interests and their right to security of the person as protected under the Canadian Charter of Rights and Freedoms”


Harm principle (Malmo-Levine)

Best interest of child (Canadian Foundation for Children, Youth and the Law –– removed criminal sanction for spanking for behaviour modification


The Current Test For S. 15 (Withler v Canada) Claimant must establish:


differential treatment imposed by law or other government action (claimant is treated differently than others - purpose on it face, or in

effect - law neutral on face but disproportionately effects an enumerated or analogous group):


Is the distinction on an enumerated or analogous grounds?


Did the impugned law (distinction) perpetuate disadvantage, prejudice, or stereotype? – Claimant must have been denied benefit others are granted or carry a burden others do not by reason or personal characteristic that is enumerated or analogous (Withler)- Tell how the law or action will perpetuate the harm

If no, then claim over. If yes, then move on to s. 1 justification.


§15(2) allows for affirmative action

Enumerated grounds – race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability

Analogous grounds - - Cannot be easily changed, not voluntary, what a person is “a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity” Corbiere v. Canada analogous grounds so far:

Marital Status (Miron v. Trudel – legal v. commons law spouse) Citizenship (Andrews v BC Law Society) Sexual Orientation (Egan v. Canada ; Vriend) Aboriginality residence off reserve (Corbiere v Canada – residence on reserve required for voting in band elections – off res still part of band) Rejected Grounds: Place of Residence (comparing law of one province to another), Occupation, substance orientation (marihuana), temporal distinction

Perpetuation of Disadvantage When law treats a historically disadvantaged group in a way that exacerbates the situation of the group (Withler)

Stereotyping Stereotyping results in perpetuation of prejudice and disadvantage. Groups that have not historically experienced disadvantage may find itself the subject of conduct that would create a discriminatory impact on the group (Withler)

Analysis Focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group.

20 REMEDIES - §24 AND §52

§52 – Constitution is supreme (52(1))

Supremacy clause gives Charter power to override and courts ability to strike

down legislation Only available where laws (including delegated legislation) are being challenged

Possible remedies:

1. Declaration of invalidity (Nullification) – Entire act struck down

2. Temporary suspension of invalidity – (Manitoba Language Ref – Avoiding lawless province –; Schachter v Canada – Under inclusive legislation)

Schracter Guidelines for temporary invalidity in exigent circumstances:


Danger to public (example: Swain)


Threaten rule of law (Manitoba Language Ref)


Result in deprivation of benefits to deserving persons ( Schacter)

New (CURRENT) Rationale – Dialogue with Parliament –

determining best solution often left to Parliament.

encourages democratic process BUT allows unconstitutional legislation to temporarily remain valid


3. Severance - Appropriate when only part of statute is held to be invalid and rest can survive independently (Ex: Hess – statutory rape; felony murder rule). When violation is precisely clear Does remainder make sense?

4. Reading in - - Where law under inclusive courts will read in a clause (Schacter – SCC has power to read in new language if necessary to remedy a constitutional defect. Ex: Vriend – sexual orientation into the grounds for prohibited discrimination) –

Serious intrusion into role of parliament – only appropriate in clearest of cases:

a) Addition of excluded class was consistent with legislative objective;

b) Little choice on how to cure constitutional defect;

c) Reading in would not involve substantial change in cost or nature of the legislative scheme;

d) Alternative remedy of striking down under inclusive

provision would be an inferior remedy – Consider significance of remaining portion of law If ambiguities when reading in strike down and send back to legislature

5. Reading down - Appropriate when statute will bear two

interpretations, one of which offends the Charter and the other would

not. Court should interpret the statute so there is no constitutional breach

6. Constitutional exemption - Court has indicated 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. (Big M Drug Mart; Edwards Books) (Example - In Sunday closing legislation, the act might not apply to religions that want to close on Saturday. Allows court to uphold a law

that is valid in most applications by creating a exemption for those that

would offend the Charter. Disadvantage:

that could involve many solutions. That choice best left to legislative body).

Court must define scope

General §52 Analysis

1) remedial precision


Define the extent of inconsistency which must be struck down – How it failed §1


Decide whether appropriate to use one of possible remedies : Nullify, Sever,


Read In, Read Down Wither severance or reading in consider:

2) Interference with legislative objective 3) Change in significance of the remaining portion Whether to temporarily suspend the declaration of invalidity


Whether to consider constitutional exemption – In case of minimum sentences overbroad law cannot be saved by constitutional exemption (Ferguson)

Remember – When determining appropriate remedies:

- Respect for role of legislature

- Respect purposes of Charter

- General Rule - Courts should not reconstruct statutes (Hunter v Southam)

§24 Remedial clause

For Charter breaches only

Claimant must have standing – must be past or imminent infringement of personal

rights Appropriate and just - Individualized remedies including:

1. Exclusion of evidence – 24(2) permits exclusion of evidence if its admission would bring the administration of justice into disrepute,

2. Declarations that the rights of an individual or group have been infringed (declares legal position but does not require defendant to

actually do anything ex: Khadr) ,

3. Damages (Ward - illegal strip search - Damages serve three functions:


Compensate for loss


Vindicate his Charter rights


Deter future breaches)

4. Costs (Ex: Charter breaches that delays litigant)

5. Injunctions (both prohibitory or mandatory),

6. Supervision of court orders (Doucet-Boudreau v Nova Scotia)

7. Any other remedy court considers just and appropriate. Non-exclusive

Discretion should be guided by 4 factors:

a. Redress the wrong

b. Encourage future compliance with Charter

c. Avoid interference with government power

d. Consider the ability of the Court to administer the remedy awarded

Available in cases where Charter infringement is the result of actions of public

officials, including police, who operated outside their constitutional scope and authority Used where invalidity or other general remedy not applicable – challenges to government acts as compared to laws

Standing: Available only to those whose Charter rights “have been infringed or

denied” Granted by a “court of competent jurisdiction”


Trial court can hear an application for a remedy that relates to conduct of a trial (Askov)


Available to admin tribunals only if they have jurisdiction over 1) parties, 2) subject matter & 3) remedy - (authority to decide questions of law) (Weber v. Ontario Hydro 1995, Hogg 40-32)

Range of remedies Defensive Remedies

Dismisses charge, stays proceeding, quashes search warrant, declares law invalid Offensive Remedies

Ordering state funded legal aid, ordering return of goods, injunction requiring positive action, monitoring government progress

General approach - Charter 4 Stages of Analysis

1. Does the Charter apply to the facts?

section 32: government action (negative rights) or government inaction

(positive rights)? section 33: override in legislation?

does the Charter right or freedom apply to the claimant? DOES CLAIMANT HAVE STANDING? (eg only citizens can claim rights

under ss. 3, 6 or 23) Is the court the correct forum ?– Superior court always correct. other

courts and tribunals,


2. Does the challenged government action interfere in purpose or effect with the

exercise of a Charter right or freedom? (ss. 2-23)

3. If so, is the interference with the exercise of rights and freedoms a “reasonable

limit”, “prescribed by law”, that can be “demonstrably justified in a free and democratic society”? (s.1)


If not, what is the appropriate remedy? (s.24 and s.52 of the Constitution Act,