CANADIAN CONSTITUTIONAL LAW (2023 Syllabus)
TABLE OF CONTENTS
PRELUDE…………………………………………………………………………..……….1
PART 1: BASIC CONCEPTS
1. Sources and Nature of the Constitution………………………………………………...2
2. Amending Procedures…………………………………………………………………...6
PART 2: DISTRIBUTION OF LEGISLATIVE POWERS
3. Federalism…………………………………………………………………….…………11
4. Judicial Review and Principles of Interpretation…………………………………….17
5. Property and Civil Rights……………………………………………………………....27
6. Trade and Commerce…………………………………………………………………...31
7. Peace, Order and Good Government………………………………………………….35
8. Criminal Law…………………………………………………………………………....43
9. Ancillary Powers………………………………………………………………………...51
10. Paramountcy…………………………………………………………………………...53
11. Interjurisdictional Immunity…………………………………………………………55
PART 3: ABORIGINAL RIGHTS AND THE CONSTITUTION
12. Introduction……………………………………………………………………………57
13. Aboriginal Rights……………………………………………………………………...62
14. Aboriginal Title………………………………………………………………………..65
15. Treaty Rights…………………………………………………………………………..67
16. Duty to Consult………………………………………………………………………..69
PART 4: THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
17. Interpreting the Charter of Rights and Freedoms…………………………………..70
18. Application of the Canadian Charter of Rights and Freedoms…………………….73
19. Override of Rights………….…………..………………………………………….......78
20. Freedom of Conscience and Religion…………………………………………………81
21. Freedom of Expression………………………………………………………………...86
22. Life, Liberty and Security of the Person……………………………………………..97
23. Equality Rights………………………………………………………………………..108
24. Limitation of Rights…………………………………………………………………..123
25. Remedies………………………………………………………………………………130
Disclaimers
These notes are based on the updated Revised 2023 syllabus. They include the cases on the syllabus and readings from the Peter Hogg textbook
These notes have been compiled utilizing a variety of sources (Peter Hogg textbook, online legal websites – CanLII and Lexum, case law, scholarly articles, wiki, etc.).
You are expected to purchase a copy of the suggested text as per the NCA recommendation and to cross-reference. Practice due diligence.
Hours have been spent editing and reviewing the notes to ensure accuracy. Nonetheless, human error is always possible. As such, if a mistake or spelling error is found,
please inform me immediately so that the appropriate adjustment(s) can be made.
The information herein does not constitute legal or other professional advice.
You have purchased notes for your personal use only (personal non-commercial use). They are to be utilized solely to prepare and study for the NCA examinations. The
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PRELUDE
Constitutional law is one of the core NCA exam subjects. The Canadian Constitution is the supreme law in
Canada. It delineates and sets out the system of government in the country, in addition, to the rights and
freedoms of people who are citizens of Canada and those who are not citizens. As the Canadian Encyclopedia
states, “The Constitution provides Canada with the legal structure for a stable, democratic government”.
This subject, Canadian Constitutional law, focuses essentially on two major areas, that is, the division of
legislative powers and the Canadian Charter of Rights and Freedoms. In the Canadian Constitution Act, 1867,
powers have been assigned via sections 91 to 95 to the federal and provincial legislatures. The focal sections
are 91 and 92, with section 91 covering the federal heads of power and section 92 detailing the provincial heads
of power. In terms of the Charter, the rights and freedoms that are concentrated on are section 2(a), the right to
freedom of conscience and religion, 2(b) freedom of thought, belief, opinion and expression…, section 7, the
right to life, liberty and security of the person, section 15, the right to equality, and section 16, language rights.
Most of the questions you will encounter on the exam will relate to a violation or infringement of a Charter
right. You will first to identify the right being infringed by the impugned law. This is usually straightforward.
Then, you will need to establish if the claimant is entitled to the right and whether it has in fact been infringed.
If these questions are answered in the affirmative, you will move on to the Oakes, section 1 Charter test. Here,
one must ask whether the law, despite breaching a Charter right of the claimant, can still be upheld. In other
words, the Oakes test is executed to determine if the law can be “saved”, despite violating a Charter right.
Many students ask about the difficulty of this subject. Overall, it appears to be of medium difficulty. Students
tend to perceive professional responsibility as the easiest NCA examination. Foundations of Canadian law and
sometimes Canadian administrative law are reported to be more challenging for many students1. However, at
the end of the day, each individual learns differently, absorbs information at a dissimilar rate, enjoys various
and unalike content and will ultimately have a disparate opinion when it comes to rating the level of difficulty
of each examination.
Another common inquiry is in regard to what NCA exams should be taken with Canadian Constitutional law.
Once again, every student is different and so, the response generally depends on the individual student. Some
students prefer to write one exam at a time, while others take on all assigned examinations at once. Logically
though, it is sensible to write Constitutional law with Foundations of Canadian law and Canadian
Administrative law. A degree of overlap does exist amongst these three subjects. For instance, within the
Foundation’s syllabus, there is a section on unwritten constitutional principles. Also, the concept of federalism
is discussed in both Foundations and Constitutional law.
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This information is just based on my personal and professional experience as a tutor over the years.
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I.
BASIC CONCEPTS
1. SOURCES AND NATURE OF THE CONSTITUTION
Definitions of Constitutional Law
• “Constitutional law is the law prescribing the exercise of power by the organs of a State it explains which
organs can exercise legislative powers (making new laws), executive power (implementing the laws), and
judicial power (adjudicating disputes) and what the limitations on those powers are” (Peter Hogg, 1-1).
Constitution Act, 1867
• Akin to the United Kingdom, there is no single written document that is comparable to that of the United
States in Canada (i.e., there are unwritten Constitutional principles in Canada)
• The closest type of document to that of the United States is the British North America Act, 1867.
• The BNA Act was renamed the Constitution Act, 1867, in the year 1982 (Constitution Act, 1982, s.53(2)). It
established the new Dominion of Canada “by uniting three of the colonies of British North America and
providing a framework for the admission of all the other British North American colonies and territories”
(Peter Hogg 1-3).
• The BNA Act established the federalism rules (rules distributing governmental power between the federal
government and provincial legislatures).
• Nonetheless, the BNA Act failed to mention any independence from the United Kingdom. This is among
many other gaps contained in the BNA Act. Thus, although the new Dominion enjoyed a substantial degree
of self-government and autonomy, it remained a British colony.
• Essentially, the BNA Act did nothing more than what was necessary to achieve confederation. The reason
for this was stated in the preamble to the Act: the new nation was to have “a Constitution similar in
principle to that of the United Kingdom”.
• The BNA Act failed to incorporate an amending formula or clause. Why? Because the framers of the Act
believed they drafted a document that would never necessitate amendments and because the framers were
aware that if an amendment clause was lacking, this would mean that amendments would require enactment
by the imperial Parliament (the UK).
Constitution 1982
• In 1982, critical repairs were implemented in the Constitution – a domestic amending formula was adopted
(no longer had to revert to the UK for amendments), the authority over Canada of the UK (Imperial
Parliament) was abolished and the Canadian Charter of Rights and Freedoms was adopted.
• The issue however is that the comprehensibility of constitutional law in Canada was not improved in any
way. The main instrument of change in the constitutional settlement of 1982 was the Canada Act, 1982 (this
included short statute abolishing power of the UK over Canada; amending procedure and the Charter).
• “Neither the Canada Act 1982 nor the Constitution Act, 1982 purports to be a codification or even
consolidation of Canada’s constitutional law…In a sense, the two 1982 statutes worsen the formal state of
Canada’s constitutional law, because they add two more statutes to the variety of course which existed
before” (Peter Hogg, 1-6).
Constitution of Canada
• The phrase the “Constitution of Canada” is defined in s. 52(2) of the Constitution Act, 1982, as follows:
52. (2) The Constitution of Canada INCLUDES:
(a) The Canada Act, including this Act;
(b) The Acts and orders referred to in the schedule; and
(c) Any amendment to any Act or order referred to in paragraph (a) or (b)
•
NOTE: The reason the “Constitution of Canada” in s. 52 (2) is introduced by the word “includes” is because
this word insinuates that the definition is not comprehensive or exhaustive.
• In New Brunswick Broadcasting Co. v Nova Scotia (1993) 1 S.C.R. 319, the Supreme Court held the
definition in s. 52 (2) is not exhaustive.
• The definition of the “Constitution of Canada” is required to give substance to the supremacy clause (says
Constitution is the supreme law) and the entrenchment clause of the Constitution Act, 1982.
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The supremacy clause, which is s. 52(1), states that “The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect”.
This section grants supremacy to the “Constitution of Canada” where it is inconsistent with other laws.
By virtue of s. 52(1) of the Constitution Act, 1982, the Constitution of Canada is superior to all other laws
in force in Canada, whatever their origin.
The rule of law, an unwritten principle of the Constitution, flows from this section. By giving priority to the
Constitution and holding it is supreme, we are saying that nothing can triumph the Constitution and that all
people are to be held equal before the law (i.e. everyone must abide by the rules of the Constitution).
The entrenchment clause is s. 52 (3); it states that “Amendments to the Constitution of Canada shall be
made only in accordance with the authority contained in the Constitution of Canada”.
The impact of this clause is to provide that the Constitution cannot be amended by an ordinary legislative
action; only by special amending procedures in Part V of the Constitution Act, 1982.
Imperial Statutes
• Both the Constitution Acts (1867 and 1982) are imperial statutes in that they are statutes that were enacted
for Canada by the UK Parliament [in its function and role as imperial Parliament].
Parliamentary Privilege
• The federal House of Parliament and the provincial legislative assemblies obtain a set of powers, authority
and privileges that are mandatory and critical to their capacity and ability to function as legislative bodies.
These are known as “parliamentary privilege” (W.J. Newman).2
• Parliamentary privilege = legal immunity enjoyed by members of the legislature (Parliament).
• In New Brunswick Broadcasting Co v Nova Scotia [1993] 1 SCR 319, the Supreme Court held that the
Nova Scotia legislative assembly could ban and prohibit the televising of its proceedings, as the power to
bar/exclude “strangers” from the legislative chamber was part of parliamentary privilege.
• “Parliamentary privilege also extends to freedom of speech in debates; this includes immunity from legal
proceedings for any words spoken in debate” (Janssen-Ortho v. Amgen Can. (2005) 256 D.L.R. (4th) 407,
paras. 73-79 (Ont. C.A.)).
Canada v Vaid (2005) 1 S.C.R. 667
• Supreme Court said parliamentary privilege wasn’t applicable and didn’t extend to the majority of
the House’s employees who were staff members in the restaurant, library, public info, repair and
maintenance, parking and traffic control, etc. (those who were only indirectly connected to the
legislative proceedings in the House)
•
Because parliamentary privilege is not contained or written in any statute or other written instrument, it is
an unwritten principle of the constitution.
New Brunswick Broadcasting Co v Nova Scotia (1993) 1 S.C.R. 319
• Parliamentary privilege is part and parcel of the “Constitution of Canada”
• The powers authorized by parliamentary privilege are not subject to the Charter of Rights.
Unwritten Constitutional Principals
• The Supreme Court of Canada has through the process of interpretation found that “unwritten” principles
“underlie” the text of the Constitution Act (case law generated these unwritten principals) (Hogg, 1-17).
***
Reference re Secession of Quebec [1998] 2 S.C.R. 217 (or Secession Reference)
• The Court analyzed the constitutional principles in this case at section (3) starting at para.49.
• “The Supreme Court of Canada invoked unwritten principles of democracy, federalism,
constitutionalism and the protection of minorities to hold that, if a province were to decide in a
referendum that it wanted to secede from Canada, the federal government and the other provinces
would come under a legal duty to enter into negotiations to accomplish the secession” (Hogg, 12
W.K. Newman, “Parliamentary Privilege, the Canadian Constitution and the Courts” (2008) 39 Ottawa L. Rev. 573.
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17).
At para. 49, the Court stated: Our Constitution is primarily a written one, the product of 131 years
of evolution. Behind the written word is an historical lineage stretching back through the ages,
which aids in the consideration of the underlying constitutional principles. These principles inform
and sustain the constitutional text: they are the vital unstated assumptions upon which the text
is based. The following discussion addresses the four foundational constitutional principles that
are most germane for resolution of this Reference: federalism, democracy, constitutionalism and
the rule of law, and respect for minority rights. These defining principles function in
symbiosis. No single principle can be defined in isolation from the others, nor does any one
principle trump or exclude the operation of any other.
The Court explained that despite the fact that the underlying constitutional principles are not
EXPRESSLY made part of the Constitution via any written provision, it would not be possible to
conceive of Canada’s constitutional structure without them.
At para. 51, the Court comments, that the unwritten constitutional “principles dictate major
elements of the architecture of the Constitution itself and are as such its lifeblood”.
Para 52: The principles assist in the interpretation of the text and the delineation of spheres of
jurisdiction, the scope of rights and obligations, and the role of our political institutions. Equally
important, observance of and respect for these principles is essential to the ongoing process of
constitutional development and evolution of our Constitution as a "living tree", to invoke the
famous description in Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at
p. 136. As this Court indicated in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the
House of Assembly), [1993] 1 S.C.R. 319, Canadians have long recognized the existence and
importance of unwritten constitutional principles in our system of government.
The Court addressed at para. 54 whether the unwritten constitutional principles have the capability
to give rise to substantive legal obligations. In other words, do they have “full legal force”? The
Court answered this question with the following: Underlying constitutional principles may in
certain circumstances give rise to substantive legal obligations (have "full legal force", as we
described it in the Patriation Reference, supra, at p. 845), which constitute substantive limitations
upon government action. These principles may give rise to very abstract and general obligations,
or they may be more specific and precise in nature. The principles are not merely descriptive, but
are also invested with a powerful normative force, and are binding upon both courts and
governments. "In other words,", as this Court confirmed in the Manitoba Language Rights
Reference, supra, at p. 752, "in the process of Constitutional adjudication, the Court may have
regard to unwritten postulates which form the very foundation of the Constitution of Canada"
Prerogative
• “Royal prerogative consists of powers and privileges accorded by the common law to the Crown” (Hogg, 118). Dicey describes it as “the residue of discretionary or arbitrary authority, which at any given time is left
in the hands of the Crown”.3
• Case of Proclamations (1611) 12 Co. Rep. 74, 77 E.R. 1352 (KB.): The prerogative is a branch of the
common law due to the fact it is the decisions of the courts that have established its existence.
• Prerogative = powers unique to the Crown.
• Examples: foreign affairs, making of treaties, declaring of war appointment of the Prime Minister and other
Ministers, the issue of passports, the creation of Indian reserves and the conferring of honours.
• Majority of governmental power in Canada is exercised under statutory, not prerogative power.
Conventions
• These are constitutional rules NOT enforced by the courts.
• Considered to be “non-legal rules”
• Conventions stipulate the manner in which legal powers shall be exercised
• I.e., the Constitution Act, 1867 confers broad powers on Governor General, but a convention stipulates the
Governor General will exercise those powers only in accordance with the advice of the cabinet or Prime
Minister (Hogg, 1-22.1).
3
Dicey, Law of the Constitution (10th ed., 1965), 424.
4
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Patriation Reference (1981); Re Resolution to Amend the Constitution [1981] 1 S.C.R. 753
• Court held there was a convention; it mandated the federal government to acquire a “substantial degree”
or “substantial measure” of provincial consent before requesting the requisite legislation from the UK.
• It was held there was no legal obligation upon federal government to obtain the consent of the provinces
Convention and usage
• “A convention is a rule which is regarded as obligatory by the officials to whom it applies; a usage is not a
rule, but merely a governmental practice which is ordinarily followed, although it is not regarded as
obligatory” (Hogg, 1-25).
• A usage can graduate into a convention. If a practice is invariably followed over a long period of time, it
may become regarded as obligatory and thereby cease to simply be a usage
• The most that can be said is that there is a stronger moral obligation to follow a convention
Convention and agreement
• “…most conventions have developed from a long history of past practice, which has eventually attracted a
sense of obligation or normative character. But this process of evolution from usage to convention (or
custom) is not the only way in which a convention may be established” (Hogg, 1-27).
• If all the relevant officials consent to the adoption of a specific rule of constitutional conduct, then that rule
may immediately come to be deemed as obligatory.4
• Conventions established by agreement will typically be put down in writing.
Convention and the law
• A convention could be transformed or converted into law by being enacted as a statute (Osborne v. Can.
[1991] 2 S.C.R. 69).
• Another way a convention could be transmuted into law is if it were enforced by the courts
• I.e. If a court gave a remedy for a breach of convention
• In the Patriation Reference (1981), the provinces contended the convention mandating provincial consents
to constitutional amendments had “crystallized” into law; as such, there was a legal requirement to obtain
provincial consents. The court rebuffed the argument essentially saying that a convention was not possible
of being transformed into a rule of common law. The House of Lords held that “a convention develops
through precedents established by the courts” (774-775).
• If a convention is not enforceable by law, then why would anyone obey a convention? Peter Hogg suggests
that the main justification for obedience is that a violation of a convention could consequence in severe
political ramifications.
• Conventions “bring outdated legal powers into conformity with current notions of government” (Hogg, 129).
Convention and policy
• A convention is not capable of overriding a statute (Public School Boards’ Assn. of Alta v Alta [2000] 2
S.C.R. 409, paras. 38-42; Ont. English Catholic Teachers’ Assn. v. Ont. [2011] 1 S.C.R. 470, paras 63-66)
• The Court has held that “no convention restricted the policy or substance of what could be enacted by the
provincial legislature in exercise of its power to make laws in relation to education (s.93)”.5
END OF CHAPTER QUESTIONS:
1. Explain the difference between a usage and a statute.
2. Was the BNA Act significant in constitutional history? Why or why not?
3. Why are conventions significant to constitutional law? HINT: Peter Hogg states, “…because they do in fact
regulate the working of the constitution, they are important concern of the constitutional lawyer”.
4. Why do you think a convention cannot override a statute?
5. Why are the unwritten constitutional principles important to Canada’s constitutional structure?
4
Latham, The Law and the Commonwealth (1949), 610.
Public School Boards’ Assn. of Alta v Alta [2000] 2 S.C.R. 409, paras. 38-42; Ont. English Catholic Teachers’ Assn. v. Ont. [2011] 1 S.C.R. 470,
paras 63-66
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2. AMENDING PROCEDURES
History of Amendment
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The BNA Act, 1867 contained no general provision for its own amendment because the framers thought
amendments should be made in the same manner as BNA Act itself – by the Imperial Parliament.
Prior to 1982, before the amendments were made (i.e., Charter, amending procedure, etc.) this was
Canada’s amending procedure: amendments had to be enacted by the UK (imperial) Parliament.
Patriation Reference (1981); Re Resolution to Amend the Constitution [1981] 1 S.C.R. 753
• Prime Minister Trudeau proposed changes and amendments to the Constitution
• The proposed amendments, which included the Charter of Rights and an amending formula, had a
significant direct impact on the powers of the provinces.
Held: An agreement was reached between the Prime Minister and nine of the ten provincial Premiers on an
altered and amended version of the amendments.
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The Constitution Act, 1982, by virtue of Part V, introduces a set of amending procedures, which allow the
BNA Act and its amendments to be modified and altered within Canada without resort to UK Parliament.
As a result, the function of the UK Parliament in Canada’s amendment process is abolished, and the Canada
Act 1982 formally eliminates the authority of the UK Parliament over Canada.
“The roles of the federal and provincial governments in the amendment process are now defined in precise
statutory language” (Hogg, 4-4).
The new procedures in Part V of the Constitution Act, 1982 comprise of a complete code of legal (not
conventional) rules, which permit all parts of the “Constitution of Canada” to be amended.
The Constitution Act, 1982 was the culmination of discussions, debates and agreements as to the
appropriate domestic amending procedure (it was over time proper procedure finally transpired).
The Constitution Act, 1982 was a massive success solving numerous long-standing defects in the
Constitution of Canada.
“As well as the adoption of domestic amending procedures (ss. 38-49), a Charter of Rights was adopted (ss.
1-34), aboriginal rights were recognized (s.35), equalization was guaranteed (s.36), provincial powers over
natural resources were extended (ss. 50-51), and the Constitution of Canada was defined and given
supremacy over other laws (s.52)” (Hogg, 4-7).
One of the goals that the Constitution Act, 1982 failed to achieve was the improved accommodation of
Quebec within the Canadian federation. Quebec desired to be recognized as a “distinct society”, however,
this was not supported by the rest of the provinces.
Part V of the Constitution Act, 1982
Summary of Part V (Peter Hogg’s Summary)
Part V of the Constitution Act, 1982 is headed “Procedure for Amending Constitution of Canada”.
It provides five different amending procedures.
1) A general amending procedure (s.38) for amendments not otherwise provided for (as well as for
amendments listed in s.42), requiring the assents of the federal Parliament and two-thirds of the provinces
representing 50 per cent of the population;
2) An unanimity procedure (s.41), for five defined kinds of amendments, requiring the assents of the federal
Parliament and all of the provinces;
3) A some-but-not-all provinces procedure (s.43), for amendment of provisions not applying to all provinces,
requiring the assents of the federal Parliament and only those provinces affected;
4) The federal Parliament alone (s.44) has power to amend provisions relating to the federal executive and
House of Parliament; and
5) Each provincial Legislation alone (s.45) has power to amend “the constitution of the province”
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Constitution of Canada
• The “Constitution of Canada” is defined in s. 52(2) of the Constitution Act, 1982.
• The amending procedures of Part V of the Constitution Act, 1982 are applicable to amendments to the
Constitution of Canada
• The amending procedures are not necessary for the amendment of statutes or instruments that aren’t part of
the Constitution of Canada; “anything that is not part of the Constitution of Canada can be amended by the
ordinary action of the competent legislative body” (Hogg, 4-13).
Charter of Rights
• The Charter is part of the Constitution of Canada and as such, it can be amended by the general (seven-fifty)
amending procedure (s.38)
• The Charter is not applicable to the general amending procedure (s.38), the unanimity procedure (s. 41), or
the some-but-not-all-provinces procedure (s.43) (Penikett v. Can. (1987) 45 D.L.R. (4th) 108 (Y.T.C.A.). In
other words, it cannot be applied to these sections in terms of a Charter challenge (this point is separate
from the bullet above, which is in regard to the Charter being amended. The first point is not in relation to a
Charter challenge).
General Amending Procedure (s.38)
Section 38(1)
This applies when none of the other procedures (ss. 41, 43, 44, 45) are applicable (somewhat of a residual procedure)
38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor
General under the Great Seal of Canada where so authorized by
(a) Resolutions of the Senate and House of Commons; and
(b) Resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate,
according to the then latest general census, at least fifty per cent of the population of all the provinces.
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•
•
•
The two-thirds requirement = at least seven of the ten provinces must agree/consent to an amendment.
Seven provinces inevitably includes at least one of the four western provinces and at least one of the
four Atlantic Provinces.
50 per cent population requirement = agreeing provinces must include at least one of Ontario or Quebec,
since the combined population of Ontario and Quebec is more than 50 per cent of Canada’s population.
However, no single province has a constitutionally entrenched veto over amendments
Proclamation
• Once 7-50 requirement is met, s. 38(1) provides that the formal act of amendment is achieved by a
“proclamation issued by the Governor General under the Great Seal of Canada”.
• There are time limits on the issue of this proclamation (s.39)
o It is not to be issued until a full year has elapsed from adoption of “the resolution initiating the
amendment procedure” (s.39(1)).
o The proclamation is not to be issued after three years have passed from the adoption of the
resolution commencing the amendment procedure (s.39(2)).
Initiation
• The procedures for amendment “may be initiated either by the Senate or the House of Commons or by the
legislative assembly of a province” (s. 46(1)).
Opting Out
• “Opting out” is allowed by s. 38(3) in respect of any amendment “that derogates from the legislative
powers, the proprietary rights or any other rights or privileges of the legislature or government of a
province”. Section 38(3) allows a province to dissent to an amendment and so the amendment “shall not
have effect in [that] province” (Peter Hogg, 4-17)
• An amendment cannot be opted out by more than three (three is the max): if there are more than three
dissenting provinces, the amendment would not have the support of two-thirds of the provinces.
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Compensation for opting out
• By virtue of s.40, federal government must offer “reasonable compensation” to any province that opts out of
an amendment that converts “provincial legislative powers relating to education or other cultural matters”
from provincial Legislatures to federal Parliament.
• The goal of this compulsion is to make certain a province is not coerced or pressured by financial
considerations into vacating jurisdiction over educational or cultural matters.
• If the amendments does not relate to education or cultural issues, there is no constitutional right to
compensation for opting out.
• I.e. the federal government may propose to amend the Constitution by taking away the power of provinces
to govern and regulate recreational facilities. By doing so, the federal government would fund the
maintenance and operation of such facilities. A province may not want to be disadvantaged by the financial
element (the federal government will pay for the facilities and run them), but at the same time, may not
want to forgo their power and autonomy over this area.
Revocation of assent or dissent
• A resolution of assent can be retracted prior the issue of the proclamation (s. 46(2)).
• “A resolution of dissent (an opting-out resolution) may be revoked any time, before or after the issue of the
proclamation (s. 38(4))” (Hogg, 4-19).
Section 42
• There are six matters that can be amended by the general procedure (two-thirds provinces with 50 per cent
population).
• Paragraph (a) of s. 42(1) refers to “the principle of proportionate representation of the provinces in the
House of Commons”.
• The principle of proportionate representation in the House of Commons was a critical component of
confederation because it had the purpose of limiting the reduction in representation of the Maritime
Provinces that was inflicted by the relative decline in their populations.
• Paragraphs (b) and (c) of s. 42(1) – respectively, “the powers of the Senate and the method for electing
Senators” and “the numbers of members by which a province is entitled to be represented in the Senate and
the residence qualifications of Senators”
• Paragraph (d) of s. 42(1) refers to any amendment the Supreme Court of Canada other than its composition
(which is listed in s 41(d)).
• Paragraphs (e) and (f) – respectively, “the extension of existing provinces into the territories” and “the
establishment of a new province” it would probably be erroneous to treat these paragraphs as mandating the
seven-fifty formula for the extension of existing provinces or the establishment of new provinces because
the Constitution Act 1871, by virtue of section 2, permits the “federal Parliament to establish new provinces
in federal territories, and by section 3 authorizes the federal Parliament, with the consent of a province, to
extend the boundaries of a province” (Hogg, 4-21). These provisions have not been abolished or changed
and thus can still function without any alteration to the Constitution.
“Regional Veto” Statute
• The general amending formula of s.38 does not provide any one province a veto over constitutional
amendments.
• “The regional veto statute only applies to amendments that are to follow the general amending procedure of
s.38 and that do not afford a dissenting province the constitutional right to opt out” (Hogg, 4-24)
Unanimity Procedure (s.41)
• Section 41 lists five matters to which an amendment mandates Parliament and all of the provinces to assent
(i.e., Senate, House of Commons and legislative assembly of each province)
• As such, if anyone dissents, the amendment cannot be proclaimed (i.e. each province has a veto)
• The five topics are regarded as matters of national importance, “which should not be altered over the
objection of even one province”.
• The five matters include a) the office of the Queen, the Governor General and the Lieutenant Governor of a
province; b) the right of a province to a number of members in the House of Commons not less than the
number of Senators by which the province is entitled to be represented…; c) …the use of the English or
French language; d) the composition of the Supreme Court of Canada; and e) an amendment to this Part.
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Some-but-not-all-provinces procedure (s.43)
• There are provisions of the Constitution, which apply some (one or more but not all) provinces.
• Section 43 states “An amendment to the Constitution of Canada in relation to any provision that applies to
one or more, but not all of the provinces, including (a) any alteration to boundaries between provinces, and
(b) any amendment to any provision that relates to the use of the English or the French language within a
province, may be made by proclamation issued by the Governor General under the Great Seal of Canada
only where so authorized by resolutions of the Senate and House of Commons and of the legislative
assembly of each province to which the amendment applies”
• I.e., multiple language provisions are only applicable to Quebec and Manitoba or New Brunswick. For the
amendment of these provisions, s.43 obliges authorizing resolutions of only those provinces to which the
amendment applies (as well as the Senate and the House of Commons).
Federal Parliament alone (s.44)
• S. 44 permits the federal Parliament, by way of ordinary legislation, to amend those parts of the
Constitution of Canada, which relate to the “executive government of Canada or the Senate and House of
Commons”.
• S.44 is subject to ss.41(b) and 42(1)(a)
Provincial Legislature alone (s.45)
• S.45 authorizes each provincial Legislature, by way of ordinary legislation, to amend or alter the
“constitution of the province”.
• S.45 is subject to s.41 paragraph (a).
Future Amendments
• French-Canadian nationalism: French Canadians are a minority in Canada, but a majority in Quebec. Their
unique language and culture “has made them anxious to be masters in their own house” (Hogg, 4-35).
• Western regionalism: The four western provinces have distinctive economies. The majority of Canada’s
population is in Ontario and Quebec (central Canada). Federal policies favour the manufacturing industries
and markets of central Canada.
• Another force of constitutional change is the demand by aboriginal peoples of Canada [of entrenchment of
their heritage and traditional rights]
• Civil libertarian: instinct and desire to entrench a Charter of Rights in the Constitution (1982 amendments).
Quebec has never agreed to the Charter, although it is legally binding
• Continuing need for amendments: seen as necessary “to repair gaps in the existing constitutional provisions,
to alter judicial interpretations that are unacceptable or to give effected to values that were not recognized at
the time of confederation” (Hogg, 4-38).
SECESSION
What is secession?
• The procedure by which part of the territory of an existing state breaks away (separates) from that state (i.e.,
Quebec wanting to break away from Canada and become independent)
***
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (Secession Reference)
• QUESTION: Could Quebec secede unilaterally from Canada.
Held:
• The Court stated: “The Court in this Reference is required to consider whether Quebec has a right
to unilateral secession. Arguments in support of the existence of such a right were primarily based
on the principle of democracy. Democracy, however, means more than simple majority
rule. Constitutional jurisprudence shows that democracy exists in the larger context of other
constitutional values. Since Confederation, the people of the provinces and territories have
created close ties of interdependence (economic, social, political and cultural) based on shared
values that include federalism, democracy, constitutionalism and the rule of law, and respect for
minorities. A democratic decision of Quebecers in favour of secession would put those
relationships at risk”.
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•
•
•
•
•
Supreme Court held a province could not break away unilaterally from the rest of Canada in an act
of defiance of the terms of the Constitution of Canada.
The principle of the rule of law or constitutionalism = provinces must still obey the Constitution
rules.
Secession would mandate an amendment of the Constitution and would have to be achieved in
accordance with the amending procedure.
Conclude: Supreme Court answered that Quebec CANNOT secede UNILATERALLY under
Canadian or International law.
NOTE: An unconstitutional secession could be a success if the seceding government accomplished effectual
clout and control of a territory and recognition by the international community.
Secession by amendment
• The Secession Reference case confirmed that the secession of a province could be triumphant by
amendment of the Constitution of Canada. Nonetheless, it was not transparent as to which specific
amending procedure would be the accurate one to apply.
• It is obvious that a secession amendment is not capable of being enacted by reliance on s.45 of the
Constitution Act, 1982, as secession would not be merely an amendment of the constitution of the province.
• It is also evident that a secession amendment could not be enacted by the federal Parliament alone under
s.44 of the Constitution Act, 1982 or by the “some-but-not-all-provinces procedure” of s.43.
• Peter Hogg asks: “But what about the general amending procedure of s.38 of the Constitution Act, 1982
(seven-fifty formula) or the unanimity procedure of s.41 (requiring assents of both houses of the federal
Parliament and of the legislative assemblies of all of the provinces)?”
o Why the general amending procedure? It covers all matters not specifically provided for elsewhere
in the amending procedures and secession is not provided for anywhere else.
o “The argument for the unanimity procedure is that secession would have an indirect impact on the
matters specific in s.41 and it would be unusual if secession could be accomplished more easily
than some other classes of amendments” (Hogg, 5-40).
Secession by unilateral act
• Supreme Court in Secession Reference held Quebec had no right to secede unilaterally from Canada,
regardless if secession was consented to by a clear majority of people in Quebec voting in a referendum on
a clear question.
• But the referendum would give rise to a constitutional commitment and duty on the part of the federal
government and the other provinces to negotiate in good faith with Quebec with a prospect/goal/view to
formulating an agreed-upon amendment to the Constitution of Canada
• The Court did acknowledge and recognize the possibility of a unilateral declaration of independence by
Quebec
• A unilateral secession would be illegal, as it would be unsanctioned and unauthorized by the existing rules
of constitutional law.
END OF CHAPTER QUESTIONS:
1. Which two amendment procedures are most similar? Which two are most different?
2. Is secession from Canada a realistic goal for Quebec? Why or why not?
3. Why should the constitution be difficult to amend?
4. What amending procedure is required for amending the Constitution and/or the Charter?
5. What are the main takeaways from the Reference re Secession of Quebec case? Under what
circumstances would secession be possible.
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II.
DISTRIBUTION OF LEGISLATIVE POWERS
3. FEDERALISM
Constitution Act, 1867, ss.91 -95
VI. DISTRIBUTION OF LEGISLATIVE POWERS
Powers of the Parliament
Legislative Authority of Parliament of Canada
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make
Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of
Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to
restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this
Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of
Subjects next hereinafter enumerated; that is to say,
1. Repealed. (44)
1A. The Public Debt and Property. (45)
2. The Regulation of Trade and Commerce.
2A. Unemployment insurance. (46)
3. The raising of Money by any Mode or System of Taxation.
4. The borrowing of Money on the Public Credit.
5. Postal Service.
6. The Census and Statistics.
7. Militia, Military and Naval Service, and Defence.
8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the
Government of Canada.
9. Beacons, Buoys, Lighthouses, and Sable Island.
10. Navigation and Shipping.
11. Quarantine and the Establishment and Maintenance of Marine Hospitals.
12. Sea Coast and Inland Fisheries.
13. Ferries between a Province and any British or Foreign Country or between Two Provinces.
14. Currency and Coinage.
15. Banking, Incorporation of Banks, and the Issue of Paper Money.
16. Savings Banks.
17. Weights and Measures.
18. Bills of Exchange and Promissory Notes.
19. Interest.
20. Legal Tender.
21. Bankruptcy and Insolvency.
22. Patents of Invention and Discovery.
23. Copyrights.
24. Indians, and Lands reserved for the Indians.
25. Naturalization and Aliens.
26. Marriage and Divorce.
27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the
Procedure in Criminal Matters.
28. The Establishment, Maintenance, and Management of Penitentiaries.
29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by
this Act assigned exclusively to the Legislatures of the Provinces.
And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come
within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act
assigned exclusively to the Legislatures of the Provinces.
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Exclusive Powers of Provincial Legislatures
Subjects of exclusive Provincial Legislation
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of
Subjects next hereinafter enumerated; that is to say,
1. Repealed. (48)
2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.
3. The borrowing of Money on the sole Credit of the Province.
4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.
5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.
6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province.
7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary
Institutions in and for the Province, other than Marine Hospitals.
8. Municipal Institutions in the Province.
9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local,
or Municipal Purposes.
10. Local Works and Undertakings other than such as are of the following Classes:
(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings
connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the
Province:
(b) Lines of Steam Ships between the Province and any British or Foreign Country:
(c) Such Works as, although wholly situate within the Province, are before or after their Execution
declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of
Two or more of the Provinces.
11. The Incorporation of Companies with Provincial Objects.
12. The Solemnization of Marriage in the Province (ceremonies).
13. Property and Civil Rights in the Province.
14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of
Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in
relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.
16. Generally all Matters of a merely local or private Nature in the Province.
Non-Renewable Natural Resources, Forestry Resources and Electrical Energy
Laws respecting non-renewable natural resources, forestry resources and electrical energy
92A. (1) In each province, the legislature may exclusively make laws in relation to
(a) exploration for non-renewable natural resources in the province;
(b) development, conservation and management of non-renewable natural resources and forestry resources in
the province, including laws in relation to the rate of primary production therefrom; and
(c) development, conservation and management of sites and facilities in the province for the generation and
production of electrical energy.
Export from provinces of resources
(2) In each province, the legislature may make laws in relation to the export from the province to another part of
Canada of the primary production from non-renewable natural resources and forestry resources in the province and
the production from facilities in the province for the generation of electrical energy, but such laws may not authorize
or provide for discrimination in prices or in supplies exported to another part of Canada.
Authority of Parliament
(3) Nothing in subsection (2) derogates from the authority of Parliament to enact laws in relation to the matters referred
to in that subsection and, where such a law of Parliament and a law of a province conflict, the law of Parliament prevails
to the extent of the conflict.
Taxation of resources
(4) In each province, the legislature may make laws in relation to the raising of money by any mode or system of
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taxation in respect of
(a) non-renewable natural resources and forestry resources in the province and the primary production therefrom, and
(b) sites and facilities in the province for the generation of electrical energy and the production therefrom, whether or
not such production is exported in whole or in part from the province, but such laws may not authorize or provide for
taxation that differentiates between production exported to another part of Canada and production not exported from
the province.
“Primary production”
(5) The expression “primary production” has the meaning assigned by the Sixth Schedule.
Existing powers or rights
(6) Nothing in subsections (1) to (5) derogates from any powers or rights that a legislature or government of a province had
immediately before the coming into force of this section. (49)
Education
Legislation respecting Education
93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to
the following Provisions:
(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools
which any Class of Persons have by Law in the Province at the Union;
(2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate
Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the
Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec;
(3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter
established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or
Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of
the Queen’s Subjects in relation to Education;
(4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the
due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council
on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in
every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make
remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in
Council under this Section. (50)
Quebec
93A. Paragraphs (1) to (4) of section 93 do not apply to Quebec. (51)
Old Age Pensions
Legislation respecting old age pensions and supplementary benefits
94A. The Parliament of Canada may make laws in relation to old age pensions and supplementary benefits, including
survivors’ and disability benefits irrespective of age, but no such law shall affect the operation of any law present or future
of a provincial legislature in relation to any such matter. (52)
Agriculture and Immigration
Concurrent Powers of Legislation respecting Agriculture, etc.
95. In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the
Province; and it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to
Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any Law of the
Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as
far only as it is not repugnant to any Act of the Parliament of Canada.
_______________________________________________________________________________________________
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Distribution of governmental power
Federalism
• Federalism is a political system in which government power and responsibility is divided between
Parliament (federal) and the provincial legislatures. Canada is a federal state.
• Power is distributed between a central (federal) authority and the provincial authorities (provincial
legislatures), in such a manner that each person in the state is subject to [and must abide by] the laws of two
authorities, the central authority and a regional authority.
• Central authority and regional authorities are “coordinate”; neither is subordinate to the other (Hogg, 5-2).
• Unitary state (different from a federal state) = governmental power is vested in one national power or
authority (i.e., Parliament). There exist local/municipal governments with law-making power over their
local regions and territories.
• The local authorities within the unitary state are different from the provinces of a federation (i.e. the
provinces in Canada) because they are subordinate to the national authorities (all the power is centralized in
a unitary state). In Canada, the provinces are NOT subordinate to the federal government (i.e. national
authority). Instead, power is divided.
• In every federation, if there is a conflict between a federal law and a provincial or state law, it is the
federal or national law, which is supreme and prevails (parliamentary supremacy).
o To say that the central authority is a “higher level” of government is not accurate
o Regional authorities are not subordinate to the centre; they are coordinate or equal in status with
the centre (Hogg, 5-2).
o The provinces all coordinate with the central authority; thus, it is the central authority that ensures
the equal authority and autonomy of the provinces (manages authorities).
o Think about it like this, if authority was just left to the provinces alone, what would happen? It is
likely that the power houses (i.e. Ontario, Quebec) would bully the others; power and authority
would not be equally divided or managed (no guarantee of legal autonomy to each of the regional
authorities).
Confederation
• Canada is typically defined as a “confederation”. Canada decided to encourage separate British colonies to
unite so that it would be less susceptible to attack by United States (i.e. self-governing country rather than
various separate colonies of Britain).
• Outside Canada, confederation usually implicates a loose association or affiliation of states wherein the
central government is subordinate to the states.
• Technically speaking, in a confederation, the central government is the delegate of the states or provinces;
political power is decentralized.
• In Canada, the union of provinces established a central government (i.e. old province of Canada); this
government was in no way or form the delegate of the provinces. It was autonomous of the provinces and
coordinate with them.
• Indeed, to the extent the central government and the provinces are not coordinate, it is the provinces that are
subordinate to the central government (contrary to confederation) (Hogg, 5-5)
Legislative union
• A legislative union = entire incorporation of the provinces (they are all under one legislative)
• The UK is a legislative union of England, Wales, Scotland and Northern Ireland
• Canada had to settle for a federation, as Lower Canada (later on became Quebec) and the maritime
provinces - New Brunswick, Nova Scotia and PEI - would not have consented to a legislative union
Special status
• The provinces are not equivalent in wealth, status or actual power. Moreover, their constitutional situations
and status are not identical
• Multiple sections and provisions of the Constitution are applicable only to one or some of the provinces.
For instance, section 93 of the Constitution is not applicable to Quebec. Another example is s.16.1, which
speaks specifically to New Brunswick.
• While the provinces are not identical in nature nor precisely equal, the differences aren’t so drastic as to
justify or validate the description “special status” for any province.
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Regions
• The concept “region” really has no exact connotation in Canada. Remember, we call regions provinces.
• Membership when it comes to the Supreme Court has been founded on a ‘regional’ notion.
• The Supreme Court Act mandates that three of the nine judges be appointed from Quebec, three judges
from Ontario, two judges from the four western provinces and one judge from the four Atlantic provinces
• Seven-fifty formula of s.38 rebuffs and dismisses the notion of regions in preference of the equality and
equilibrium of the provinces.
o An amendment necessitates consent and agreement from the federal Parliament and two-thirds of
the provinces (7) having a collective and combined population of 50 per cent of the population of
all the provinces.
o “This formula does indirectly impose some regional requirements in that seven provinces will
always include at least one western province (Alberta, BC, Manitoba and Saskatchewan) and at
least one Atlantic province, and 50 per cent of the population will always include either Ontario or
Quebec” (Hogg, 5-11).
Subsidiarity
• “Subsidiarity is a principle of social organization that prescribes that decisions affecting individuals should
be made by the level of government closest to the individuals affected” (Hogg, 5-12).
• One of the primary goals of confederation was to preserve and sustain a substantial level of independence
for the four original provinces. In order to sustain a reasonable degree of autonomy, the BNA Act granted
the provincial Legislatures with authority and autonomy over such matters are property and civil rights, the
courts and police, municipal institutions, hospitals, and education.
Canada v Hudson (2001) 2 S.C.R. 241
• The notion of subsidiarity was invoked by the Supreme Court of Canada. The Court held that the
local decision (municipality in Quebec), to impose more rigid standards on pesticide use in the local
region and area, should be respected.
• L’Heureux-Dube J: “law-making and implementation are often best achieved at a level of
government that is not only effective, but also closest to the citizens affected and thus, most
responsive to their needs”
Reasons for Federation
• The federal system in Canada is a balance (a political compromise) between unity (legislative union) and
diversity (want to maintain the separate identities of their provinces)
• Canada is a vast country and has many diverse areas and regions. Therefore, it may be beneficial in terms of
efficiency and responsibility to divide the powers of government so that a national and central government
is accountable for issues of national concern and importance and provincial governments are accountable
for issues that concern local importance.
• Division of governmental power inherent in a federal system functions to prevent an excessive
concentration of power à check balance
• The contrary or opposing argument is that “federal government implies weak government”, because the
dispersal of power makes it hard to enact and implement new public policies” (Dicey).6
Federalism in Canada
Terms of the Constitution
• BNA Act provides the provinces only enumerated powers to make laws (their powers are set out under their
respect head of power), the residue of power is left to the federal Parliament.
• The framers of the Constitution set out the powers distributed to the provincial legislatures and to the
federal government via sections 91 and 92.
• Gaps within the Constitution = areas the framers did not contemplate at the time of drafting (POGG)
• Parliament was given, by section 91(2), the power to regulate “trade and commerce” without qualification.
• Banking (s. 91(15)), marriage and divorce (s. 91(26)), the criminal law (s. 91(27)) and penitentiaries (s.
91(28)) were other topics allocated to the federal Parliament in Canada
6
Dicey, The Law of the Constitution (10th ed., 1965).
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Supremacy of the Constitution
• Section 52(1) of the Constitution Act, 1982: “any law that is inconsistent with the provisions of the
Constitution are of no force and effect”
• The constitution must be “supreme” implicates that it must be “binding on, and immovably by, each of the
central and regional authorities” (Dicey).
• Changes to the Constitution: neither the federal government nor provincial legislatures can unilaterally
change or amend the provisions of the Constitution of Canada.
Cooperative Federalism
• “The dualistic approach to power-sharing promoted by the Judicial Committee of the Privy Council in
London (the court of final appeal for Canadian cases until 1949) has been followed by the more cooperative
approach to Canadian federalism exemplified in the jurisprudence of the Supreme Court of Canada” (page
135).7
• The notion of cooperative federalism has led to an enhanced number of overlaps between equally valid
provincial and federal legislation8; it is, as the term obviously expresses in its very name, a cooperative
approach. Instead of insisting only one law can stand, if both laws are equally valid, and the circumstances
permit, both laws are capable of being upheld.
• Various doctrines, which you will learn later about in the notes, demonstrate the cooperative approach (I.e.,
double aspect doctrine, incidental effects rule, ancillary doctrine).
• I.e., the federal government offering tax revenue to the states to fund interstate highways
• “The formal structure of the Constitution carries a suggestion of eleven legislative bodies each confined to
its own jurisdictions, and each acting independently of the others” (Hogg, 5-45).
o However, in many fields, effective policies mandate the combined/communal, or at the very least,
complementary, action of more than one legislative body
• The formal structure implicates eleven separate fiscal systems; “with each province levying taxes to raise
revenue for its legislative policies and federal government doing the same.”
• To balance Canada’s disparities in regional wealth, the richer regions have to assist the poor regions
• A federal nation could not survive and prosper during war and peace, depression and inflation without the
means of amending its constitution to progression/evolution/change. “But the formal institutions lack the
capacity to respond. Major change does not come through the courts” (Hogg, 5-45).
• Change also does not come through the amending process. The amending procedures of the Constitution
Act, 1982 mandate such expansive and encompassing consensus for most amendments that they cannot be a
regular form of adaptation (this approach would be far too time-consuming and inefficient).
• The amending procedure is elaborate and complex and as such, is not very responsive to change.
• Quebec (Attorney General) v. Canadian Owners and Pilots Association, [2010] 2 S.C.R. 536, par. 44: “The
Supreme Court stated that the cooperative approach to Canadian federalism goes hand in hand with the
perceived need to promote efficacy over formalism”.9
• Alexander Pless, of the Department of Justice: “reliance on the notion of cooperative federalism actually
tends to yield uncooperative consequences. Despite its name suggesting a preference for different orders of
government working together to achieve common goals, in practice courts have invoked this principal in
support of quite the opposite result. To take but one recent example, in Alberta (Attorney General) v
Moloney, the majority of the Supreme Court referred to cooperative federalism as a principle favouring a
restrained application of the paramountcy doctrine. Essentially, the call for cooperation can actually be
used to militate for the operationalization of both federal and provincial laws – but with the end results
being that both orders of government may act independently of one another, rather than in concert”.10
END OF CHAPTER QUESTIONS:
1. What amending procedure(s) can be used to amend the provisions of the Constitution of Canada? If there is
more than one procedure that is applicable, identify which is the most suitable.
2. Explain judicial review in the context of the separation of powers.
7
BROUILLET, E. (2017). The Supreme Court of Canada: The Concept of Cooperative Federalism and Its Effect on the Balance of Power. In
ARONEY N. & KINCAID J. (Eds.), Courts in Federal Countries: Federalists or Unitarists? (pp. 135-164). Toronto; Buffalo; London: University
of Toronto Press. Retrieved August 21, 2020, from http://www.jstor.org/stable/10.3138/j.ctt1whm97c.9.
8
Ibid.
9
Ibid.
10
Canada Bar Association, Cooperative Federalism – A Division of Powers Principle to Suit Every Need? January 02, 2018 (Olga Redko).
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4. JUDICIAL REVIEW AND PRINCIPLES OF INTERPRETATION
RECALL: Subsection 52(1) of the Constitution Act, 1982 provides that the Constitution of Canada is the
"supreme law of Canada", and that "any law inconsistent with the provisions of the Constitution of Canada
is, to the extent of the inconsistency, of no force or effect".
• A law that is inconsistent with the Constitution = is of no force or effect from the moment it is made. This
is, however, from a theoretical standpoint.
• From a practical standpoint, such a law is not deemed or viewed to be invalid until a court declares it to be
null due to inconsistency with the provisions of the Constitution.
• The Constitution of Canada by virtue of sections 91 and 92 (also other sections, such as 93) defines the
kinds of laws that may be enacted by the federal Parliament and the kinds of laws that may be enacted by
each provincial Legislature.
• “When a question arises whether the federal Parliament or a provincial Legislature has enacted a law that
comes within the Constitution’s definition of powers allocated to the enacting body, an authoritative answer
can be provided only by the courts” (Hogg, 15-2).
• This is the rationalization for judicial review of legislation, which is the power to decide if any particular
law is valid or invalid. JR = is the law valid/invalid?
• “The law is valid (intra vires) if the court finds it was enacted within the powers allocated by the
Constitution to whichever legislative body enacted the law and invalid (ultra vires) if the court finds the law
was enacted outside the powers allocated to the enacting body” (Hogg, 15-2).
Federal and Charter grounds
• S.52 makes it transparent that a law that is contrary to any provision of the Constitution is “of no force or
effect”. Peter Hogg clearly states that, “In reviewing the validity of a law, the first question is whether the
law is within the law-making power of the enacting body and the second question is whether the law is
consistent with the Charter of Rights”. If you answer yes to both = valid
• In other words, you approach division of power questions first, and the Charter second.
• Any provision, of course, includes the Charter of Rights and Freedoms; thus, if a law is enacted that violates
or breaches the Charter, it will be invalid [unless it can be saved by section 1 which be discussed later].
• Section 32(1) provides that the Charter is applicable to the federal Parliament and the provincial
Legislatures. It provides as follows:
32. (1) This Charter applies:
(a) To the Parliament and government of Canada in respect of all matters within the authority of
Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) To the legislature and government of each province in respect of matters within the authority
of the legislature of each province.
• What is meant by: “In respect of all matters within the authority of”?
• “This phrase limits the application of the Charter to laws within the distribution-of-powers authority of the
Parliament or Legislature”.
• In other words, if a law is enacted that is ultra-vires (outside the approved head of power), then the law is
struck down and whether the law violated the Charter is moot, because it has already been determine null
and void.
Important Points
• A law can either be invalid because it was enacted outside the powers allocated to the enacting body (i.e., a
province enacts a law that comes under a federal power) OR it can be invalid because it violates the Charter.
• If a law is challenged on both grounds, federal (i.e., division of powers) and Charter grounds, then do you
start with the division of powers or Charter?
• It doesn’t really matter because ultimately you would reach the same result.
• However, Peter Hogg does state he believes it is “meaningful and accurate to asset that the provisions of the
Constitution distributing powers to the federal Parliament and the provincial Legislatures are logically prior
to the Charter of Rights”.
• Therefore, first determine whether the law is within the law-making power of the enacting body and
secondly, establish if it is consistent with the Charter.
• For instance, if you are confronted with a question on the exam, and both the grounds are challenged, start
with the distribution of powers. If you find that the law is ultra vires, you can stop here and declare the law
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invalid. However, if you find the law is intra vires, and accordingly, it is valid, then declare it as such and
move onto the Charter review.
The Charter is addressed later in the notes. But bear in mind that a law can be saved if it violates the Charter
by virtue of section 1 (the Oakes test).
SIDE NOTE:
• This is a critical portion of the notes and will be a weighty component of the exam.
• For Division of Power Questions, you will almost always be conducting a pith and substance test, which
will enable you to determine what is at the heart or core of the law/statute/legislation in question.
• For instance, if a province, say Ontario, enacts a law, your job will be to analyze the new law and determine
what it is truly about (what is the dominant feature?).
• If the core of the law relates to federal powers, then the provincial Ontario Law will be ultra vires (it is
outside of its jurisdiction). This law will be struck down as being invalid.
• If the heart of the law is within the powers of the provincial government (either due to it being spelled out in
the Constitution s.92 OR due to case law – which, as you progress through the notes, you will become more
comfortable and familiar with) then the law will be upheld as valid.
JUDICIAL REVIEW
• The Constitution divides and separates the power to make laws between Parliament (federal) and the
provincial legislatures. This distribution is set out primarily in sections 91 and 92.
• In some instances, the Constitution makes it clear that Parliament and the provincial legislatures have a
shared (concurrent) authority to legislate in respect of a specific subject matter (i.e., s.95 – both can make
laws in relation to agriculture).
• Areas of legislative authority are referred to as “heads of power”.
• Judicial review involves analyzing and reviewing a law/statute/legislation that a governmental body enacts
to determine whether that body has created a law that falls under one of its “classes of subjects” (i.e., list of
the laws that are competent to that legislature).
• Hogg explains here are two main steps involved in the process of judicial review: (1) the characterization of
the challenged law and (2) the interpretation of the power-distributing provisions of the Constitution (i.e.
assigning the matter to one of the ‘classes of subjects’ or heads of legislative power) (15-6, 15-7).
• This will not always be straightforward, and the bulk of your job will be to analyze and examine the
dominant feature or matter of the law in question (discussed below).
Three doctrines have been developed by the courts to assist in examining and analyzing conflicts
regarding the federal division of powers.
1. Pith and substance = used to determine validity of the impugned law
2. Interjurisdictional immunity = used to determine the applicability of a provincial law that is valid but
in the specific circumstance the federal government will have immunity (the law will not impact the
federal government)
3. Federal Paramountcy = used to determine operability when there is a conflict between a provincial
and federal law
PITH AND SUBSTANCE DOCTRINE (TEST)
• If a level of government (Parliament or provincial legislatures) enacts a law, and it relates, in pith and
substance, to a head of power or one of the subject matters assigned to that specific body, then it will be
valid under the division of powers.
• For instance, the federal law has the power to enact laws in relation to banking; banking is one of its heads
of power or subject matters. Therefore, a federal law that is in pith and substance about banking will be
valid. If the federal government, however, enacts a law that says that all banks have to close at specific time,
this does not, in pith and substance, really relate to banking. Rather, it relates to business and working hours
(civil and property rights), and this would fall under property and civil rights, which is a provincial head of
power. In this particular example, the federal law would be invalid as it is ultra vires (civil and property
rights is under section 92 of the Constitution and as such, this is not a federal head of power).
• The pith and substance test involves two steps: characterization and assignment (classification)
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TWO-STEPS:
• (1) Identify the “MATTER” (pith and substance) of the challenged law
• (2) ASSIGN the matter to one of the “classes of subjects” (heads of legislative power). Note: make sure you
specify the specific head(s) of power (i.e., banking, insurance, etc.). There may be multiple heads.
1.
Identify the Matter
“MATTER”
• In judicial review, the first step is to identify and discern the most important and critical traits and
characteristic of the challenged law
• What is the “matter” of a law?
o Laskin: “a distillation of the ‘constitutional value’ represented by challenged legislation”.
o Abel says it is “an abstract of the statute’s content”
o Lederman says it is “the true meaning of the challenged law”
• It is necessary to identify and ascertain the dominant or most important characteristic of the challenged law.
o This dominant feature is the “pith and substance” or “matter”
• Chatterjee v Ontario (Attorney General): “What is the essence of what the law does and how does it do it?
(Binnie J.)
• I.e., provincial statute that imposes a direct tax on banks
o One feature is “direct taxation” which comes within a provincial class of subject (s. 92(2)); but
another feature is banking: comes within a federal class of subject (s. 91(15))
o In Bank of Toronto v. Lambe (1887) 12 App. Cas. 575., the Privy Council held that a provincial
law which taxed banks was valid, finding that the dominant characteristic of the law was to raise
revenue. Therefore, the “matter” of the provincial law was taxation; the dominant feature was NOT
banking, which would fall under the federal heads of power (section 91).
• It may not always be straightforward in terms of what class of subjects a law falls under. As Hogg points
out, “The difficulty in identifying the “matter” of a statute is that many statutes have one feature (or aspect)
which comes within a provincial head of power and another which comes within a federal head of power”
(15-8).
• How do we resolve such a situation? Ultimately, there is no real answer. “…the law has both the relevant
qualities and there is n logical basis for preferring one over the other. What the courts do in cases of this
kind is to make a judgment as to which is the most important feature of the law and to characterize the law
by that feature…the other feature is merely incidental” (Hogg, 15-8).
• Two cases that are great for comparison and that will deepen your understanding of this area are Bank of
Toronto v. Lambe and Alberta Bank Taxation Reference (1938); A-G. Alta v. A.-G. Can. (Bank Taxation)
[1939] A.C. 117.
o In the former case, as discussed, the court upheld the provincial law. However, in the latter, the law
was struck down because the provincial (Alberta) law imposed a special tax ONLY on banks. The
Court found that the pith and substance of the law was to discourage the operation of the banks in
Alberta. Its “matter” came within “banking” (federal head), not “taxation” (provincial head)
Quebec v Lacombe (2010)
• A municipal by-law in Quebec prohibited the use of lakes as aerodromes.
• Land use zoning falls under the provincial head of power - property and civil rights - and is usually
delegated by provincial Legislatures to municipalities. But was this law really about zoning?
Held:
Supreme Court of held the pith and substance of the by-law was in relation to aeronautics not zoning. As such,
the by-law was said to be ultra vires and was struck down. The by-law was deemed to be outside provincial
(and municipal) competence.
Singling Out
• The Alberta Bank Taxation Reference highlights the rule of singling out. The provincial Legislatures cannot
“single out” banks or other federal undertakings for special treatment.
• In Bank of Toronto v Lambe (1887), the taxing statute applied to other corporations as well as banks, the Privy
Council characterized the law as in relation to taxation, not banking.
• If the tax is of general application – i.e. to a specific region and it just so happens that banks happen to be in the
vicinity – then, this will obviously not be singling out
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Purpose
• The process of characterization is not a specific formula or technical test.
• In some situations, if you determine the purpose of the law, you can extract the “matter” and ascertain the
relevant head of power. Sometimes, you have to look beyond the surface. For instance, as discussed
previously, in Alberta Bank Taxation Reference (1938), just because on the surface the provincial law levied
a tax does not mean the law is about taxation. The Court inquired as to the purpose of the provincial law and
came to the conclusion that it was really about banking.
• The cases on Sunday closing show importance of legislative purpose in characterization.
R v Big M Drug Mart (1985)
• The federal Lord’s Day Act prohibited various commercial activities on Sundays.
• The purpose of the law had to do with religion.
• Court recognized if the purpose of the statute hadn’t been religious “but rather the secular goal of
enforcing a uniform day of rest from labour”, then the Act would been a provincial competence
R v Edwards Books and Art (1986)
• Ontario’s Retail Business Holidays Act, which prohibited retail stores from opening on Sundays,
was held to be a valid exercise of the province’s power under section 92(13) - over property and civil
rights in the province.
• Thus, the purpose was secular– providing a uniform pause day for retail workers - and this fell under
a provincial head of power (property and civil rights)
•
In the two cases above, the court focused on the purposes of the impugned laws – secular or religious.
Ward v Canada (2002) SCC 17
• A federal law prohibited the sale of baby seals.
• It was found the purpose of the law was the indirect one of limiting the killing of baby seals. It was
not about the marketing or regulation of seals which would falls under section 92(13), property and
civil rights in the province.
Held:
The Court found the pith and substance of the law was in fact the management of the fishery; this fell under
the federal authority over “seacoast and inland fisheries” (s. 91(12)). Therefore, the federal law was valid as it
fell within a federal competence
Effect
•
•
In characterizing a statute, a court will always take into account the impact or effect of the statute
The Court will give consideration to how the statute changes and alters the rights and liabilities of those
who are subject to it (what are the consequences and ramifications).
Alberta Bank Taxation Reference [1939] A.C. 117
• Lord Maugham LC: “The Court must take into account any public general knowledge of which the
Court would take judicial notice, and may in a proper case require to be informed by evidence as to
what the effect of the legislation will be”
• The Privy Council analyzed the impact and effect on the banks of the tax which Alberta proposed
and utilized the severity of the tax as one of the justifications for reaching the conclusion that the
statute should be characterized as relating to banking rather than taxation
Efficacy
• Reviewing courts should not necessarily “pass judgment on the likely efficacy of the statute. That would
breach the longstanding injunction that courts are not concerned with the wisdom or policy of legislation”
(Hogg, 15-18)
Re Firearms Act (2000)
• The issue in this case was if Parliament’s gun control legislation should be upheld as criminal law
• Here there was no question that the purpose was to promote public safety (typical criminal purpose)
• Those attacking the constitutionality of it contended that the legislation’s scheme of registration of
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guns and licensing of owners would be entirely useless as a contributor to public safety
The proper response to the argument was the institutional one (separation of powers principle) =
efficacy is a matter for Parliament and not the Court:
o “Parliament is the judge of whether a measure is likely to achieve its intended purpose;
efficaciousness it not relevant to the Court’s division of powers analysis” (para 18)
Colourability
• The doctrine of colourability is the concept that when a legislature wants to do something that it is not
permitted to do (within the constraints of its government's constitution and assigned heads of power), it
colours the law with a substitute purpose, which enables it to achieve its original goal. In other words, the
government conceals the true purpose/intention.
• Peter Hogg explains “Colourability” as: “when a statute bears the formal trappings of a matter within
jurisdiction, but in reality, is addressed to a matter outside jurisdiction” (15-19).
• In Alberta Bank Taxation Reference, the Privy Council held the legislation, although apparently and
allegedly designed as a taxation measure, was in reality and practice directed at banking.
• “The doctrine applies the maxim that a legislative body cannot do indirectly what it cannot do directly”.
***
R v Morgentaler (No 3) (1993) 3 S.C.R. 463.
• A Nova Scotia statute that mandated “designated” medical procedures to be performed in a hospital
was struck down by the Supreme Court
• The Nova Scotia regulation listed nine medical procedures; the fourth was abortion.
• The statute pronounced that its purpose was “to prohibit the privatization of the provision of certain
medical services to maintain a single high-quality health-care delivery system for all Nova Scotians”
• On the face of it, prima facie, the statute appeared to be a health measure; this of course would fall
within the constitutional power of the province.
• Court held the statute and regulation “were aimed primarily at suppressing the perceived harm or evil
of abortion clinics” and that they were properly characterized as invalid criminal laws”.
Held:
“The Court struck down the statute and regulation in their entirety despite the fact that 8 of the 9 designated
hospital procedures had nothing to do with the abortion. The Court made clear that it regarded the designation
of the eight non-abortion procedures as a SMOKESCREEN to conceal from a reviewing court the true purpose
of the legislation” (Hogg, 15-20).
Criteria of Choice
• Peter Hogg points out that in the most difficult cases, “the choice in not compelled by either the nature of
the statue or the prior judicial decisions. It is inevitably one of policy. In other words, for policy reasons,
who should have control of the matter” (15-21)
• The notion of federalism should direct your choice.
• “The only political values which may be accepted as legitimate to judicial review are those that have a
constitutional dimension to them, that is, values that may reasonably be asserted to be enduring
consideration in the allocation of power between the two levels of government” (Hogg, 15-21).
• Simeon has recommended the three values of community, efficiency and democracy as criteria that are
helpful to an appraisal of the allocation of power in a federal system.11
NOTE: Now we will go through various principles of interpretations, situations, exceptions/caveats, etc.
What if you determine that the law is valid but effects a subject matter under the other governmental body?
Incidental Effect
• It is possible for a valid provincial law to impact a federal area, and vice versa. This ‘accidental’ impact, if
you will, is inevitable in a lot of circumstances; as long as there is not a conflict, or a severe impact, this will
be permitted.
11
R.E. Simeon, “Criteria for Choice in Federal Systems” (1983) 8 Queen’s L.J. 131.
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•
•
•
•
If the court analyzes a provincial law and determines that there is a dominant feature and a secondary (less
important) feature, then as long as the dominant characteristic is intra vires (a provincial subject matter) and
the incidental effect does not severely impact a federal head of power, then the law will be valid.
Recall Bank of Toronto v Lambe (1887): when the law was examined, it was obvious that the dominant
feature was to “raise revenue”. Thus, the “matter” of the law was taxation, not banking (federal). The
impugned law was “in relation to” taxation and merely “affected” banking. This affect or impact was only
incidental in nature and did not impair or severely impact “banking” which falls within the federal
competence or head of powers.
The “pith and substance” doctrine enables one level of government to enact laws with some impact on
matters outside its jurisdiction
There are many examples of laws which have been upheld despite their “incidental” impact on matters
outside the enacting body’s jurisdiction (Hogg, 15-9)12
o A provincial law in relation to insurance (provincial matter) may validly restrict or even stop the
activities of federally incorporated companies (federal matter)
o A federal law in relation to shipping and navigation (federal matter) may validly regulate labour
relations in a port (provincial matter)
What if the impact on the other level of government goes beyond an “incidental effect”?
Ancillary Powers Doctrine
• “The pith and substance doctrine enables a law that is classified as “in relation to” a matter within the
competence of the enacting body to have incidental or ancillary effects on matters outside the competence
of the enacting body” (Hogg, 15-39).
• In General Motors v. City National Leasing (1989) 1 S.C.R. 641, Dickson C.J. tried to clarify the multiple
and varying approaches taken by the Courts in terms of defining the degree of the legislative power to
impact matters outside the competence of the enacting legislature (i.e., there was no consensus or consistent
approach in terms of how much one legislature can encroach on the other’s competence)
• Dickson C.J. stated: “As the seriousness of the encroachment on provincial powers varies, so does the test
required to ensure that an appropriate constitutional balance is maintained” (Id., 671).
• The Court must assess the degree and extent of encroachment of a legislative scheme on the realm of power
of the other government and then the Court must establish how vital and necessary the impugned provision
is to the otherwise valid legislative scheme (Id., 668-669).
• With the ancillary powers doctrine, we are looking at schemes, not a single law. Within the scheme, there
will be multiple provisions, typically one or two which may be outside of that enacting government’s
competence. However, that one provision may be necessary to uphold the entire scheme.
• The ancillary powers doctrine can be used to justify the validity of a law that substantial impacts a head of
power not within its jurisdiction/division (enumerated list).
• This doctrine enables one level of government to enact provisions that, although encroaching on the other
level of government, are nevertheless valid, as they comprise a significant and vital portion of a broader
legislative scheme that happens to lie within its scope of competencies.
• What are the applicable tests? (General Motors)
o For minor or trivial encroachments = rational connection test is suitable (just need to show a
functional relationship)
o For more serious encroachments = a more rigid test is employed, that is, the “truly necessary” or
“essential” test (i.e. the provision in the scheme is absolutely required; without it, the whole
scheme would crumble).
• NOTE: the provision [within the broader scheme] cannot be the central theme of the act or scheme; this
would not be ancillary but the dominant feature and as such, it would not be valid.
• The Kirkbi v. Ritvik Holdings (2005) 3 S.C.R. 302 case is a prime example of this area and should be
referred to in order to gain a greater comprehension. In this case, the Trade-marks Act was attacked because
section 7(b) offered a civil remedy for a breach of an unregistered trademark. This remedy did not stand
independently; rather, it was part of the greater scheme, that is, the Trade-marks Act. This Act was a valid
law (trade and commerce power). The remedy was able to survive as the intrusion into the provincial
competence was trivial (minimal). A “functional relationship” with the broader scheme of the Trade-marks
Act was all that was required to uphold the civil remedy.
12
Hogg lists a number of examples on 15-9 under 15.5 Characterization of Laws, (a) “Matter”.
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Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453
At para [102]: “In the case of a constitutional challenge that relates not to an entire set of rules established in a
statute but only to one or more specific provisions, it is not enough for the court to consider how the impugned
provisions, considered in isolation, may relate to the division of powers. It must take the analysis further by
determining whether the entire statute containing the provisions is valid and, if it is, ascertaining the extent to which
the provisions are integrated into the statute. Provisions that would be invalid if considered in isolation may be
found to be valid if they are sufficiently integrated into a statute that is itself valid as a whole.”
What if you determine that there are two valid laws (one federal and one provincial) in relation to the same
subject matter?
Double Aspect (this is when you have both a federal valid law and a provincial valid law) (Hogg, 15-11)
• If you conduct a pith and substance test and conclude that the federal law is valid and the provincial law is
also valid, then the double aspect doctrine is a principle that may be applicable
• Double aspect is used when the valid federal law and valid provincial law DO NOT conflict
• Double aspect doctrine: “subjects which in one aspect and for one purpose fall within s.92, may in another
aspect and for another purpose fall within s.91” (Hodge v. The Queen (1883) 9 App. Cas. 117, 130).
• Apparently, as Hogg explains, courts have not elucidated when it is suitable to execute the double aspect
doctrine and when a decision is required in terms of choosing either the federal or provincial features of an
impugned law (15-12).
• Lederman’s explanation appears to be suitable: “the double aspect doctrine is applicable when the contrast
between the relative importance of the two features is not so sharp”.13
• Hogg explain Lederman’s explanation in the following terms: “When the court finds that the federal and
provincial characteristics of a law are roughly equal in importance, then the conclusion is that laws of that
kind may be enacted by either Parliament or a Legislature” (15-12).
• I.e. The federal government has laws in relation to dangerous driving (i.e. driving 50+ of the speed limit =
car impounded; negligent driving, etc.). The provincial government = provincial highway traffic offences
• Canada (Attorney General) v PHS Community Services Society (2011) SCC 44: “…in practice there is
significant overlap between the federal and provincial areas of jurisdictions and provides that both
governments should be permitted to legislate for their own valid purposes in these areas of overlap”.
If the impugned law is found to be invalid, can it be saved?
NOTE: Severance and Reading Down are remedies to laws that are found to be invalid.
Severance (remedy)
• From a constitutional perspective, the statute considered is one, entire law, and it will stand or fall in its
entirety when its validity is in question.
• Sometimes, merely a portion or segment of a statute is invalid, and the balance of it would in fact be valid if
it stood independently. The question thus becomes “whether the court should “sever” the bad part, thereby
saving and preserving the good part, or whether the court should declare the entire statute to be bad” (Hogg,
15-24).
• A.-G. Alta. V. A.-G. Can.: “The rule which the courts have developed is that severance is inappropriate
when the remaining good part is so inextricably bound up with the part declared invalid that what remains
cannot independently survive”.14
• In the event the two parts are capable of existing independently of one another, so that it is possible to view
them as two laws with two different “matters”, then severance is suitable, “as it may be presumed that the
legislative body would have enacted one even if it had been advised that it could not enact the other”.15
• “A ‘severance clause’ is a section of a statute stating that, if any part of the statute is judicially held to be
unconstitutional, the remainder of the Act is to continue to be effective” (Hogg, 15-25).
• A.G. B.C. v A.G. Can. (Natural Products Marketing) [1937] A.C. 377; the Privy Council refused to sever
the provision of the statute that was unconstitutional from the rest of the statute.
13
Lederman, Continuing Canadian Constitutional Dilemmas (1981), 244; Multiple Access v. McCutheon [1982] 2 S.C.R. 161.
A.-G. Alta. V. A.-G. Can. (Alta. Bill of Rights) [1947] A.C. 503, 518.
Lederman, Continuing Canadian Constitutional Dilemmas (1981), 247-248; Strayer, The Canadian Constitution and the Courts (3rd Ed., 1988),
301-303.
14
15
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•
•
Severance is much more common and typical in Charter cases compared to federalism cases
There is only one Charter case in the Supreme Court where the whole statute was struck down: R v Big M
Drug Mart (1985) 1 S.C.R. 295, which held the Lord’s Day Act was bad in its entirety.
Reading Down (remedy)
• The “reading down” doctrine mandates that, whenever feasible, a statute is to be interpreted as falling under
one of the competencies of the enacting legislative body
• The general language in the statute will be interpreted more narrowly in order to keep it within the confines
and permissible scope of power.
• Reading down is like severance in that both approaches alleviate and soften the impact of judicial review;
but reading down accomplishes its remedial purpose exclusively by the interpretation of the challenged
statute, whereas severance comprises of holding part of the statute to be invalid. Thus, reading down is not
as drastic (there is not cutting down of the statute or eradicating a piece of it)
• It allows the bulk of the legislative policy to be accomplished, while trimming off those applications that are
constitutionally bad.
Reading In (remedy)
• This is when a court adds wording to a statute to make it conform to the constitution.
• Department of Justice (Canada): In some cases, the inconsistency between a law and the Constitution arises
from what the statute wrongly excludes or omits. In such cases, the remedy of “reading in” may be
available, though this remedy is to be used sparingly (Trial Lawyers Association of British Columbia v.
British Columbia (A. G.), 2014 SCC 59, [2014] 3 S.C.R. 31 at paragraph 66).
• Reading in is not available if it would substantially change the nature or objective of the legislative scheme
(Vriend paragraph 161).
APPLICABILITY
Interjurisdictional Immunity
• D. Gibson contends that the concept “interjurisdictional immunity” bears no specific meaning.16
• NOTE: this doctrine is distinct from the paramountcy doctrine (to be discussed). The paramountcy doctrine
= two pieces of legislation regulate the same activities and CONFLICT (i.e., one says you must drive at
night, the other says you cannot drive at night) à the federal law is supreme, triumphs and renders the
provincial legislation inoperative. In contrast, interjurisdictional immunity is activated EVEN IF THERE IS
NO MEETING of legislation or CONTRADICTION between the federal and provincial laws.
• I.e., the law in The Bank of Toronto v Lambe [1887] imposed a tax on banks; it was held intra vires (within
the provincial competence) because the dominant characteristic was NOT banking, which is a federal head.
If the law actually related to banking, such as a provincial law that limits the rights of creditors in terms of
debt enforcement (this law would hinder banking), it would be ruled inapplicable.
• “It has been held that an otherwise valid provincial law may NOT impair the status or essential powers of a
federally-incorporated company. Thus, a provincial law prohibiting all extra-provincial companies from
operating in the province (John Deere Plow Co. v. Wharton [1915] A.C. 330)” was read down in order to
excuse federally incorporated companies (Hogg, 15-29)
• Even though a provincial law may be constitutionally valid (pith and substance = valid competence), there
exists certain and specific circumstances (exceptions) wherein it is unconstitutional to apply the law to
certain “federal regulated persons or undertakings”.
• For example, provincial labour laws are within the property and civil rights in the province (92(13)) and are
therefore generally valid in regard to workplaces within the province. However, labour laws are not
applicable to particular workplaces that are exclusive to the federal government (I.e., aeronautics, banks).
• In situations like this, the provincial law, despite being typically valid, will be “inapplicable” due to the
doctrine of interjurisdictional immunity (the federal body is immune; the provincial law does not apply to
it). You can almost visualize this. Imagine a bunch of boxes and each represents a different tech company.
All the names on the boxes are of Ontario-based companies, except one, it is a federally incorporated
company (incorporated under the Canada Business Corporation Act and not the Ontario Business
Corporation Act). The province enacts a law that applies to labour laws for tech companies. The federally
incorporated tech company will be immune, and the provincial law won’t apply to it (“inapplicable”).
16
D. Gibson, “Interjurisdictional Immunity in Canadian Federalism” (1969) 47 Can. BarRev. 40.
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•
NOTE: this doctrine is rarely applied in practice; the Supreme Court has held it is a “narrow” doctrine that
should only be applied with “restraint”.
***
Canadian Western Bank v. Alberta (2007) 2 S.C.R. 3
• “Interjurisdictional immunity would apply only if a provincial law would impair a “core competence”
of Parliament or “a vital or essential part of an undertaking it duly constitutes” would be impaired by a
provincial law. If the core competence or vital part would merely be affected (without any adverse
consequence) by a provincial law, no immunity applied” (Binnie and Lebel JJ)
• Binnie and LeBel JJ. said impairment would consist of an “adverse consequence” that placed the core
or vital part “in jeopardy”, albeit “without necessarily, ‘sterilizing’ or ‘paralyzing’ (para 48).
Held:
It was held by the Court that the vital part of an undertaking should be confined/restricted to functions that
were “essential” or “indispensable” or “necessary” to the federal character (core) of the undertaking.
The Court went on to state that the promotion of insurance by banks was too distant and far removed from
the core of banking to constitute as a vital part of the banking undertaking (paras 51, 63). Thus, the Alberta
Insurance Act was capable of being validity applicable to the banks when they promoted insurance
•
Just three years later, after the Canadian Western Bank case, the Court in Quebec v. Canadian Owners and
Pilots Associations (below) gave a more expansive application and interpretation of the interjurisdictional
immunity doctrine.
***
Quebec (Attorney General) v Canadian Owners and Pilots Association (2010) SCC 39, 2 SCR 536
• The main question in this case was if a provincial law, which stipulated specific regions as
agricultural zones within the provinces which could not be utilized for non-agricultural purposes,
could ban the operation of an airstrip (aeronautics) on land zoned as agricultural.
Held:
Supreme Court held the provincial law was intra vires and thus valid, as it related to land use planning
and/or agriculture, which was a provincial competence. The Court applied the doctrine of interjurisdictional
immunity and concluded that the provincial law was “inapplicable to the extent that it prohibits aerodromes
in agricultural zones” (para 4). McLachlin C.J. held that “the location of aerodromes was “essential” to the
federal power over aeronautics and was therefore within the “core” of the power. The effect of the
provincial law on that core was sufficiently serious to count as an “impairment” (Hogg, 15-37).
•
•
RULE à Beetz J (Canadian Western Bank [2007] 2 S.C.R. 3): if the provincial law would affect the
“basic, minimum and unassailable” core of the federal subject, then the interjurisdictional immunity
doctrine stipulated that the provincial law must be restricted in its application (read down) to exclude the
federal subject.
o If the provincial law did not affect/impair the core of the federal subject, then the pith and
substance doctrine stipulated that the provincial law validly applied to the federal subject
o “Only if the provincial law would “impair” the core of the federal subject, would
interjurisdictional immunity apply” (Hogg, 15-38.4).
Remedy = reading down is the remedy that is used in interjurisdictional immunity cases.
OPERABILITY
Federal Paramountcy
• If you have a valid federal law and a valid provincial law that OVERLAP, it may be a non-issue. The two
laws may not conflict at all and there will be no problem.
• NOTE: you will have completed the pith and substance test and determined the laws are both valid. This
test is separate as you will now be analyzing the operability of provincial legislation.
• If the two laws do in fact conflict, then this is problematic. To determine whether they do in fact conflict,
you should execute the test from Rothmans, Benson & Hedges Inc v Saskatchewan [2005] 1 S.C.R. 188:
o Dual compliance: First ask if it is possible to comply and adhere to both laws (the federal and
provincial law). For instance, if the provincial law says wear a helmet while you ride a bike and the
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•
•
•
federal law says the helmet must be fastened. These two laws overlap; but it is capable to comply
with both. Therefore, there is no conflict and “dual compliance” is possible.
o Frustration of purpose: Next, ask if compliance with the provincial law would frustrate the federal
law’s purpose.
If dual compliance is possible, but to comply with both laws will result in frustrating the purpose of the
federal law, then there will be a conflict.
If a law says don’t wear a helmet and the other law says wear a helmet = “impossibility of dual compliance”
In any conflict = federal law is paramount (i.e., federal paramountcy!)
Progressive Interpretation
• The doctrine of progressive interpretation is one of the ways the Constitution Act 1867 has been able to
adjust and evolve to the changes and progression in Canadian society.
• “What this doctrine stipulates is that the general language used to describe the classes of subjects (or heads
of power) is not to be frozen in the sense in which it would have been understood in 1867” (Hogg, 15-48).
• Doctrine is vetoed by some scholars who contend the courts are bound for eternity by the “original
understanding” of the Constitution (“Originalism” position).
• In the Same-Sex Marriage Reference (2004), the Court held that it was not bound by the original meaning
of “marriage” (union of a man and a woman). It was not tied to “frozen” terms or concepts. The Court
explained that the Canadian Constitution “is a living tree which, by way of progressive interpretation,
accommodates and addresses the realities of modern life” (para 22).
Unwritten Constitutional Principles
• There are a set of unwritten or implicit principles of the Constitution that have significantly affected and
impacted the drafting of the text and continue to influence and impact its interpretation (i.e. democracy,
constitutionalism, rule of law, independence of judiciary, protection of civil liberties, federalism)
• In the case, Secession Reference (1998) 2 S.C.R. 217, which was discussed earlier in the notes and is a case
enumerated on the syllabus, the Court held that any secession must honour four unwritten Constitutional
principles, that is, democracy, federalism, constitutionalism and the protection of minorities”.
Manitoba Language Reference (1985) 1 S.C.R. 721, 752 per the Court
• Supreme Court of Canada held that “in the process of constitutional adjudication, the Court may
have regard to unwritten postulates which form the very foundation of the Constitution of Canada”
Re Remuneration of Judges (1997) 2 S.C.R. 3
• The Court held that the provincial statutes decreasing the salaries of provincial court judges were
unconstitutional, as they infringed judicial independence (unwritten constitutional principle)
END OF CHAPTER QUESTIONS:
1. Is interjurisdictional immunity part of the pith and substance test? Why or why not? Provide an example of
interjurisdictional immunity that does not arise in the case law (be creative).
2. Manitoba has enacted a law that makes it illegal to vape within 20 meters of a building. The Federal government
has enacted a law that stipulates vaping is only permitted if 100 meters away from a building. Are these laws
valid? Are any doctrines applicable? Provide full explanation and details.
3. Refer to question 2: instead consider the Federal government has banned vaping. Does this change your
response?
4. Are unwritten constitutional principles part of the Canadian Constitution Act?
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5. PROPERTY AND CIVIL RIGHTS
Importance of Property and Civil Rights
• Section 92(13) of the Constitution Act, 1867 confers upon the provincial Legislatures the power to make
laws in relation to “property and civil rights in the province” (Tremblay, Les competences legislatives au
Canada et les pouvoirs provinciaux en matière de propriete et de droits civils (1967)).
• This is indeed the most significant and critical of the provincial heads of power.
• Unlike in the United States, where "civil rights" is tantamount with "human rights", civil rights in Canada
means the capability of a person to make contracts (comprise primarily of proprietary, contractual or
tortious rights).
Local or private matters
• “The provincial “residuary power” in s.92(16) over “all matters of a merely local or private nature in the
province” has turned out to be relatively unimportant, because the wide scope of “property and civil rights
in the province” has left little in the way of a residue of local or private matters” (Hogg, 21-4).
• This section is usually recommended and suggested as a possible alternative to s. 92 (13) rather than an
autonomous source of power.
• Think of subject matters that are very local in nature (i.e., small counties and towns, parks).
Insurance
• “The insurance industry became the arena in which the two levels of government contended for the power
to regulate business, or at least that part of business activity over which legislative power was not
specifically allocated by the Constitution Act, 1867” (Hogg, 21-5). Dissimilar to the federal competence,
banking (s. 91(15)), insurance is not specifically addressed in the Constitution.
Provincial power
• In Citizens’ Insurance Co v Parsons (1881) 7 App. Cas. 96, the Privy Council upheld an Ontario statute,
which mandated that specific prerequisites be incorporated in every policy of fire insurance entered into in
Ontario. “Their lordships held that regulation of the terms of contracts came within property and civil rights
in the province (s. 92(13)) and did not come within trade and commerce (s. 91(2))” (Hogg, 21-6).
Insurance Reference (1916) 1 A.C. 588
• Privy Council held the Insurance Act, 1910 (which was a statute/act enacted by the federal
government) to be unconstitutional
• The court turned down the contention premised on trade and commerce; the House of Lords held the
regulation of a particular industry fell under property and civil right in the province. It did not matter
that industry and particular firms went beyond the geographic boundaries of any one province.
Business in general
• “Some industries fall within federal jurisdiction because they are enumerated in s.91, such as navigation and
shipping (s. 91(10)) and banking (s. 91(15)) or because they are excepted from s. 92(10), namely, interprovincial or international transportation and communications undertakings (s. 92(10)(a) and (b)) and works
declared to be for the general advantage of Canada (s. 92(10)(c))” (Hogg, 21-8.1, 21-9).
Professions and trades
• Regulations of professions and trades typically come in the shape of restraints and controls on entry, joined
with rules of conduct.
• Inter-provincial mobility, as described on the Law Society of Ontario website, is a term used to explain the
manner in which: (i) a lawyer called to the bar in one Canadian province or territory can provide legal
services temporarily in or with respect to the law of another province or territory; and (ii) a lawyer called to
the bar in one province or territory may be called to the bar of another province or territory.17
• In Kriegar v Law Society of Alberta (2002) 3 S.C.R. 372, the Supreme Court held the Law Society, which
was authorized by provincial law to regulate the legal profession in the province did have the jurisdiction.
17
Law Society of Ontario, Mobility and Inter-Jurisdictional Frequently Asked Questions. https://lso.ca/lawyers/about-your-licence/manage-yourlicence/lawyers-from-outside-ontario/mobility-and-inter-jurisdictional-faq
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Labour Relations
Provincial power
• “The regulation of labour relations over most of the economy is within provincial competence under
property and civil rights in the province” (Hogg, 21-10)
• I.e., your work/employment contract (contractual in nature = civil rights).
• The caveat/exception to labour relations being under the provincial power/head is when it is a federal
corporation/undertaking = interjurisdictional immunity
• In the Labour Conventions case (1937)18, the House of Lords held that “laws imposing labour standards
came within property and civil rights in the province”.
Federal power
• In 1925, the federal Parliament changed its labour legislation so that it was applicable to only “employment
upon or in connection with any work, undertaking or business that is within the legislative authority of the
Parliament of Canada” (Industrial Disputes Investigation Amendment Act, S.C. 1925, c.14).
• In the Stevedores Reference (1955)19 case, the Supreme Court held the federal law was valid. This case
made it clear that Parliament has the authority and power to regulate and govern employment in works,
undertakings or businesses within the legislative authority of the federal legislature (Parliament).
Provincial competence over labour relations is the rule, and federal competence is the exception
• RULE: Federal competence exists only where it is found that the work performed or executed by the
employee or worker is an integral and central part of an undertaking within federal jurisdiction and that
finding is dependent upon “legislative authority over the operation, not over the person of the employer”
(Can. Labour Relations Bd. V. Yellowknife [1977] 2 S.C.R. 729, 736)
• “Federal jurisdiction over labour relations will extend outside the federal sectors of the economy in times of
national emergency” (Hogg, 21-15).
Marketing
• It is obvious that under s.92(13) the provinces have the authority and power to regulate intraprovincial
trade, though “they lack the power to regulate inter-provincial trade. A provincial marketing scheme will
nearly always have an impact on producers or consumers in other provinces. The question is to what extent
should a province be permitted to burden interprovincial trade in the course of regulating intraprovincial
trade?” (Hogg, 21-17).
Shannon v Lower Mainland Dairy Products Board (1938) A.C. 708
• Privy Council upheld a provincial scheme that applied to milk sold in the province, including milk
produced in other provinces. The application of the scheme to milk that was produced outside of
the province was deemed as an incident of an essentially intraprovincial scheme.
Manitoba Egg Reference (1971) S.C.R. 689
• Supreme Court of Canada struck down a provincial scheme to regulate the marketing of eggs
• The scheme was applicable to all eggs that were sold in Manitoba; this also included eggs produced
elsewhere (therefore, interprovincial and NOT MERELY Intraprovincial)
• The justification for the application of the scheme to eggs produced outside of the province was
that the scheme was capable of being undermined by imports of an unregulated and less expensive
product. Furthermore, “the application of provincial regulation to a product produced outside the
province was upheld in Shannon (1938) and Home Oil Distributors v AG B.C. (1940) cases”
Held:
“The Plan now in issue not only affects interprovincial trade in eggs, but that it aims at the regulation of
such trade”. As such, the plan was found to be unconstitutional in its entirety.
•
18
19
There is a fine line – if the provincial scheme just has an incidental interprovincial impact (i.e., a company
is in Ontario and Manitoba, and the Manitoba office has some of the products), then it may be upheld as
provincial. BUT, if the impact goes beyond having an incidental affect and the provincial law tries to
A.-G. Can. v. A.-G. Ont. (Labour Conventions) [1937] A.C. 326.
Re Industrial Relations and Disputes Investigations Act (Can.) [1955] S.C.R. 529.
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•
•
regulate industries in other provinces, it is going beyond its jurisdiction (i.e. it is the federal government
who has control over interprovincial).
Re Agricultural Products Marketing Act (1978) 2 S.C.R. 1198: it is important to look at the destination of
the product; in this case, it was found that 90 per cent of the eggs produced in Canada were consumed
within the province of production.
If production controls and limits are imposed in a province specifically for physical conservation needs (i.e.
don’t over-farm the land; sustainability), then there is no doubt about the existence of provincial power. In
Spooner Oils v Turner Valley Gas Conservation Bd. (1933) SCR 629, the Supreme Court upheld Alberta
legislation to restrict the production of natural gas in the Turner Valley gas field. The controls were in place
to prevent producers from extracting huge amount of gas and engaging in wasteful and inefficient practice.
Securities Regulation
• The provinces have the authority to regulate the trade in corporate securities. There is one important caveat
to the generality of provincial power over the securities industry. “It has been held that the province has no
power to confer upon a provincial agency discretionary power over the issue of securities by a federallyincorporated company, because the capacity to raise capital is an essential attribute of corporate status”
(Hogg, 21-23; A.-G. Man. V. A.-G. Can. (Manitoba Securities) [1929] A.C. 260).
• Besides the limited immunity of federally incorporated companies, the provincial power has been granted
an expansive scope by the courts.
Property
• The creation of property rights is within property and civil rights in the province.
• Therefore, the law of real (i.e., house) and personal property and all its derivatives (i.e. landlord and tenant,
trusts and wills) are within provincial power
• Heritage property: Kitkatla Band v British Columbia (2002) 2 SCR 146 established that the safeguarding of
heritage or cultural property fell within the provincial competence under section 92(13), property and civil
rights in the province.
***
Citizens' Insurance Company of Canada v. Parsons, (1881) 7 A.C. 96 (P.C.)
• Citizens argued and contended that insurance was under federal jurisdiction and as such, the provincial
insurance legislation was ultra vires.
• The Supreme Court found that this was a contractual dispute falling under s.92(13), property and civil
rights; therefore, it is provincial jurisdiction.
• Thus, insurance = contract (property and civil rights)
• Sir Montague Smith held that the trade and commerce power possesses three traits: 1) the “Regulation of
trade and commerce” should NOT be read literally; (2) It includes international and interprovincial trade as
well as “general regulation of trade affecting the whole dominion”; and (3) it does NOT extend to regulate
contracts between businesses.
***
Chatterjee v Ontario (Attorney General), 2009 SCC 19, [2009] 1 SCR 624
Facts:
• Chatterjee’s car was searched (incidental to his arrest); the police discovered cash and illegal drug
associated items (but no drugs were found).
• The Attorney General under the Civil Remedies Act (CRA) seized the money and equipment.
• Chatterjee argued that the CRA was unconstitutional; he contended that the forfeiture provisions were ultra
vires the provinces, as they violated the federal criminal power.
Held:
• It is clear that the purpose of the CRA is “to make crime in general unprofitable, the capture resources
tainted by crime so as to make them unavailable to fund future crimes and to help compensate private
individuals and public institutions for the costs of past crime”.
• The court held that these are valid provincial objects. The court explained that “it would be out of step with
modern realities to conclude that a province must shoulder the costs to the community of criminal behaviour
but cannot take legislative steps to suppress it” [3-4] [18] [23].
• It was concluded that the CRA is an enactment “in relation to” property and civil rights. The provisions of
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the CRA, consequently, can incidentally affect criminal law and procedure without infringing or damaging
to division of powers.
***
Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837
• The court in this case explained the pith and substance test stating:
“To determine the constitutional validity of legislation from a division of powers perspective, the
pith and substance analysis requires the courts to look at the purpose and effects of the law. The
inquiry then turns to whether the legislation falls under the head of power said to support it. If the
pith and substance of the legislation is classified as falling under a head of power assigned to the
adopting level of government, the legislation is valid. When a matter possesses both federal and
provincial aspects, the double aspect doctrine may allow for the concurrent application of both
federal and provincial legislation.”
• It was concluded that the securities market in principle may be capable of supporting federal intervention
due to the economic significance and prevalent and universal character, however, this does not “justify a
wholesale takeover of the regulation of the securities industry”.
• Instead, the court held that “a cooperative approach” is needed that enables a scheme acknowledging the
essentially provincial nature of securities regulation while permitting Parliament to deal with genuinely
national concerns. Thus, if national concern is raised = federal intervention is permissible.
END OF CHAPTER QUESTIONS
1. Why should provinces be able to take legislative steps in terms of crime prevention?
2. The governance of labour relations is within the provincial power. What is an exception to this?
3. Explain the verdict of the Reference re Securities Act. Is the securities market within the provincial or
federal competence?
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6. TRADE AND COMMERCE
Relationship to property and civil rights
• Section 91(2) of the Constitution Act, 1867 bestows upon the federal government (Parliament) the power
and authority to make laws in relation to “the regulation of trade and commerce”.
• Prima facie, the federal competence of “the regulation of trade and commerce” (s. 91(2)) and the provincial
power over “property and civil rights in the province” (s. 92(13)) seem to overlap.
o Trade and commerce is executed by contracts, which give rise to “civil rights” over “property”.
Nonetheless, the courts, by virtue of “mutual modification” have confined the two classes of
subjects to terminate the overlapping and make each power exclusive.
• Parsons is a critical and key case in relation to this area
Citizens’ Insurance Co. v Parsons (1881) 7 App. Cas. 96
• The validity of a provincial statute was challenged; this statute specified particular conditions were to be
incorporated in all fire insurance policies entered into in the province.
Held:
The Privy Council found that the statute was a valid law relating to property and civil rights in the province. The
provincial statute did not fall under the federal trade and commerce power, as that power should be read as not
including “the power to regulate by legislation the contracts of a particular business or trade, such as the business
of fire insurance in a single province”.
What “the regulation of trade and commerce” did include was “political arrangements in regard to trade requiring
the sanction of Parliament; regulation of trade matters of inter-provincial concern and general regulation of trade
affecting the whole dominion” (Id., 113)
•
•
•
“Since the Parsons case, it has been accepted that, in general, intraprovincial trade and commerce is a
matter within provincial power, under “property and civil rights in the province” (s. 92(13)), and the federal
trade and commerce power is confined to (1) interprovincial or international trade and commerce, and (2)
“general” trade and commerce” (Hogg, 20-2).
Limitations of Parsons in the allocation of powers between the federal government and provinces:
Two categories of trade and commerce:
o Interprovincial or international trade and commerce
o General regulation of trade affecting the whole dominion
General Motors of Canada Ltd. v City National Leasing (1989) is a leading case on the scope of
Parliament’s trade and commerce power. It illustrates the modern perspective of the Court that prefers
interprovincial economic integration; in line with Peter Hogg’s view: “It is obvious that major regulation of
the Canadian economy has to be national. Indeed, a basic concept of the federation is that it must be an
economic union”.20
***
Reference re Securities Act (2011)
• Court concluded comprehensive securities regulation did not come within the general branch of the
trade and commerce power.
• Canada argued that securities law transcends all industries, and thus should be a valid exercise of the
trade and commerce power, in the same way as for competition law.
• Other side argued securities industry should be viewed in same manner as the insurance industry, which
since Citizen's Insurance Co. v. Parsons has been held to fall under provincial jurisdiction.
• “Parliament cannot regulate the whole of the securities system simply because aspects of it have a
national dimension”.
• At para [6]: “Canada has shown that aspects of the securities market are national in scope and affect the
country as a whole. However, considered in its entirety, the proposed Act is chiefly directed at
protecting investors and ensuring the fairness of capital markets through the day-to-day regulation of
issuers and other participants in the securities market. These matters have long been considered local
concerns subject to provincial legislative competence over property and civil rights within the
20
Peter Hogg; Warren Grover (1976). "The Constitutionality of the Competition Bill". Canadian Business Law Journal. 1: 197–228.
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province. Canada has not shown that the securities market has so changed that the regulation of all
aspects of securities now falls within the general branch of Parliament’s power over trade and commerce
under s. 91(2). Applying the settled test, we conclude that the proposed Act does not fall within the
general trade and commerce power”.
Interprovincial or international trade and commerce
In the Privy Council
• The Parsons case did NOT outline or delineate when trade and commerce became adequately
interprovincial to come within the federal power.
• This definition was left to the Haldane period.
Insurance Reference (1916) 1 A.C. 588 (A.-G. Can v. A.-G. Alta (Insurance) [1916] 1 A.C. 588)
• The federal law (Federal Insurance Act of 1910) created a licensing regime for insurance companies,
except for provincial businesses executing business wholly within the province of incorporation. The
exclusion emphasized that the goal of the Act was to impose federal regulation on an industry, which
reached across Canada.
Held:
• Privy Council found that the scope of the industry or of specific companies was immaterial and
irrelevant.
• Viscount Haldane said: “It must now be taken that the authority to legislate for the regulation of trade
and commerce does not extend to the regulation by a licensing system of a particular trade in which
Canadians would otherwise be free to engage in the provinces” (Id., 596).
•
•
•
The trade and commerce power was also rejected as a support for the legislation in the Board of Commerce
case (1922) 1 A.C. 191 and Toronto Electric Commissioners v Snider (1925) A.C. 396, 410.
In Natural Products Marketing Reference (1937), a statute which formed marketing schemes for natural
products and goods whose chief market was outside the province of production was held to be invalid
o The Privy Council found “the entire statute was invalid because it included within its purview
some transactions, which could be completed within the province” (Hogg, 20-5)
The Privy Council’s final consideration of the trade and commerce power:
Margarine Reference (1951) A.C. 179
• The federal government banned the manufacture, sale or possession of margarine to safeguard the dairy
industry. The House of Lords held that this was entirely invalid, as it forbid not only interprovincial
business transactions but also transactions that could be conducted within a province (intraprovincial)
• “A provision in the statute which prohibited the importation of margarine had been upheld by the
Supreme Court of Canada as a valid exercise of the trade and commerce power” (Hogg, 20-5)
In the Supreme Court of Canada
• Since the eradication of appeals to Privy Council, the trade and commerce power has re-emerged.
Re Agricultural Products Marketing Act (1978) 2 S.C.R. 1198
• The Court upheld a federal marketing statute. The statute was the federal piece and component of
interlinking and connecting federal and provincial statutes that together:
(1) Established and empowered a national egg marketing agency and provincial egg marketing agencies;
(2) Controlled the supply of eggs by the imposition of quotas on each province and within each
provincial quota, on each producer;
(3) Provided for the disposal of the surplus product; and
(4) Imposed levies on producers to finance the cost of the scheme and especially the cost of surplus
disposal
•
Peter Hogg comments that Re Agricultural Products Marketing Act is a significant extension of federal
power into regional and local markets. However, he goes on to state that “the case is an unusual one and
may not be an important precedent” (20-8).
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General Trade and Commerce
• Until 1989 (General Motors case), the only clear examples of valid exercise of trade and commerce power:
Canada Standard Trademark case (1937) A.C. 405
• A federal statute which created a national mark called “Canada Standard” was upheld by the Privy
Council. Utilization of the mark was voluntary; however, if the mark was in fact used, then the federal
standards in relation to the quality of product so marked had to be adhered to. The use of mark was not
restricted only to interprovincial/international trade
• It appeared that this case determined that the general trade and commerce power would permit and allow
federal standards of production or manufacture for products traded locally, as long as the federal
standards were connected to the voluntary utilization of a distinctive mark.
Labatt Breweries v AG Can (1979) 1 S.C.R. 914
• In this case the Court said they did not view the Canada Standard Trademark case as “controlling”
precedent. As such, the Court held invalid compositional standards for light beer (under federal Food
and Drugs Act).
• The Court distinguished this case from Canada Standard Trademark stating that the 1937 case involved
the use of a distinctive description, whereas Labatt Breweries involved the use of a common description.
• MacPherson explained, “the use of a distinctive description is genuinely voluntary, because it is easy for
manufacturers who do not wish to comply with the federal standards to avoid the use of the distinctive
description. But the use of a common description is virtually mandatory since it is often not practicable
for a manufacturer to produce a marketable product without calling the product by its common name”.21
•
“The standards laid down under the federal Food and Drugs Act can be supported under the general trade
and commerce power only if that power is held to extend to the mandatory prescription of nation-wide
standards for the manufacture of foods and drugs” (Hogg, 20-13)
MacDonald v Vapor Canada (1976) 2 S.C.R. 134
• The validity of a federal law was in question. This federal law banned and offered a civil remedy for,
any “act” or “business practice” which was “contrary to honest industrial/commercial usage in Canada”
Held:
• Laskin C.J. addressed the fact that the formulation or “extension of civil causes of action of an
essentially contractual or tortious character was a matter within property and civil rights in the province.
While a new civil remedy would be upheld as an incident to an otherwise valid federal law, in this case
the remedy stood alone” (Hogg, 20-14).
• In other words, the civil remedy was not part and parcel of the federal law, but rather, was its own,
distinct provision, if you will. It stood alone and not part of the entire legislation. Recall, the ancillary
powers doctrine. In this case, it could not be said that the civil remedy was ancillary in nature; it was not
part of a “regulatory scheme”.
***
General Motors of Canada Ltd. v City National Leasing (1989) 1 SCR 641
• A challenge to the validity of the civil remedy that had been introduced into the federal Competition Act
in 1975 (used to be called the Combines Investigation Act)
Held:
• The Supreme Court held the Combines Investigation Act was indeed a valid exercise of the “general”
trade and commerce power.
• Dickson CJ applied and executed the Vapor test, which comprised of three factors/elements:
(1) The presence of a “general regulatory scheme”
(2) The “oversight of a regulatory agency”
(3) A concern “with trade as a whole rather than with a particular industry”
• Dickson CJ added a fourth and a fifth to these three above elements:
(4) “The legislation should be of a nature that the provinces jointly or severally would be
constitutionally incapable of enacting”
21
J.C. MacPherson, “Economic Regulation and the British North America Act” (1980) 5 Can. Bus. L.J. 172, 187.
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(5) “The failure to include one or more provinces or localities in a legislative scheme would
jeopardize the successful operation of the scheme in other parts of the country”
•
•
•
•
•
•
In this case all of the five elements were present. (1) There was a regulatory scheme; (2) It operated under
the oversight of a regulatory agency; and (3) It was concerned with trade in general, not with a particular
place or particular industry.
Furthermore, in relation to elements (4) and (5), “only national regulation of competition could possibly
be effective, because of the ability of factors of production to move freely from one province to another”
(Hogg, 20-16).
It is vital to realize that the general branch of the trade and commerce power permits the regulation of
intraprovincial trade (federal can regulate provincial trade).
The Court concluded (Dickson C.J.) that Parliament (as well as the provinces) has the constitutional
power to regulate intraprovincial aspects of competitions.
The Constitution Act 1867 grants Parliament the power to legislate in relation to patents (s. 91(22) and (23))
BUT the Act is silent in regard to trademarks.
“However, Canada has had a federal Trade-marks Act since shortly after confederation. The current Act
provides a system of registration of trademarks, a right of exclusive use of registered marks and remedies
for their infringement. The Act recognizes unregistered trademarks, and provides them with protection of a
civil remedy” (Hogg, 20-17).
END OF CHAPTER QUESTIONS:
1. In the Parsons case, Sir Montague Smith stated, “….it becomes unnecessary to consider the question how
far the general power to make regulations of trade and commerce, when competently exercised by the
dominion parliament, might legally modify or affect property and civil rights in the provinces, or the
legislative power of the provincial legislatures in relation to those subjects”. Explain what he is implicating.
2. What is the difference between interprovincial and intraprovincial trade?
3. Can regulation of general trade single out a particular industry or trade?
4. Why did the provision that banned importation of margarine survive and was not struck down in the
Margarine Reference case?
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7. PEACE, ORDER AND GOOD GOVERNMENT
Hogg, Chapter 17
Peace, Order and Good Government
• The Fathers of Confederation (drafters of the Constitution) thought at the time they created the Constitution
that they had covered every possible new area of law with a clause in the Constitution.
• The first paragraph of s.91 of the Constitution Act 1867 states that the federal government has the power to:
“To make laws for the peace, order and good government of Canada, in relation to all matters not
coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces”
in addition to the powers specifically listed as federal.
•
•
Therefore, any area of law that doesn’t come specifically under the provincial heads = federal
It quickly became apparent and obvious, however, that the POGG section, if interpreted too broadly or
expansively, could effectively rob the provinces of most of their powers (because then we are just granting
everything to federal heads if the area does not fall within an enumerated head of power or class of subject).
“Pith and Substance”
• Judicial Committee of Privy Council created the "pith and substance" test/doctrine. This test essentially said
that, whenever a government's legislation was challenged for being ultra vires (outside the jurisdiction of
the enacting legislature or body), the JCPC would assess and determine the "pith and substance" of the
legislation.
• Once legislation's "pith and substance” was established, the Court would determine which of the listed
powers in s. 91 or 92 of the BNA Act most closely matched with that "pith and substance"
• When the pith and substance of the law was considerably or significantly within the government's
jurisdiction, then any incidental affects the law had on another government's jurisdiction were allowable.
• This ensured that not every area was automatically distributed to the federal government via POGG; pith
and substance made sure that the dominant feature and purpose of the law was the focus
Theories that explain operation of power under POGG
ALBERT ABEL
• He used the existence of section 92 (16) as the premise for a contention that there is no residuary
power in the Constitution at all
• POGG and s 92 (16) cancel each other out – they are two complementary grants of power which
distribute the residue between the two levels of government
O’CONNER REPORT
• POGG is not residuary, rather it is the entire federal power
• POGG does not consist of what is left after subtraction or reduction of the federal as well as the
provincial enumerated heads; instead, the POGG power is the whole federal power, “that is to say,
all power not allocated to the provincial Legislatures” (Hogg, 17-3).
• The enumerated heads of federal power are literally just illustrations and examples of POGG
PETER HOGG
• “This “general” theory of POGG, as including the whole of federal legislative power, is not
particularly helpful way of reading the Constitution” (17-4)
• First, many of enumerated heads are not just instances or examples of the opening words
o Subjects such as “trade and commerce” (section 91 (2)), banking (s.91 (15)), etc. would
likely have been found to fall under the provincial head of “property and civil rights in the
province” if they had not been specifically listed and enumerated in the federal list
o “If not specifically enumerated, they would therefore have been excluded from POGG,
since it does not include provincial heads of power” (17-4).
• Second, the general theory does not accord or align with the practice and reality of the courts
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POGG Power: Three Branches
The POGG power - three branches of legislative power:
1) The “gap” branch
2) The “national concern” branch
3) The “emergency” branch
The” Gap” Branch
• One of the functions of POGG power is to fill voids, or gaps in the Constitution; things the drafters of
the Constitution forgot to think about but would unambiguously have allocated to Parliament if they had
• There are very few undisputed gaps in the distribution of power that have to be filled in this manner.
• One gap relates to the incorporation of companies. The Constitution Act 1867, section 92 (11), grants the
provincial Legislatures the power to make laws in relation to “the incorporation of companies with
provincial objects”, but there is no equivalent enumerated federal power of incorporation”
• “The courts have held that the power to incorporate companies with objects other than provincial must
fall within federal POGG power due to its residuary nature” (Citizens’ Insurance Co. v Parsons).
• A similar rationalization can be made in relation to the treaty power
• Section 132 demonstrates the framers of the Constitution did not contemplate that Canada would
eventually acquire the power to enter into treaties on its own behalf. This section in the Constitution
grants power to the federal Parliament to create laws for performing and executing the obligations of
Canada “as part of the British Empire, towards foreign countries, arising under treaties between the
empire and such foreign countries”.
• As such, section 132 is silent about performing the duties of Canada that arise under treaties that are
entered into by Canada in its own right or capacity, that is, as an international person. In Radio
Reference (1932) A.C. 304, it was held that the POGG power filled this gap
• Viscount Dunedin announced that the power to perform Canadian treaties fell under the POGG power,
due to the fact that it was “not mentioned explicitly in either s 91 or 92” (Id., 312).
• “However, it was later empathetically rejected by a differently constituted Privy Council, speaking
through Lord Atkin, in the Labour Conventions case (1937) A.C. 326. Recent dicta by SCC suggest
reasoning in Radio Reference could be returning to judicial favour” (Hogg, 17-6).
The “National Concern” Branch
• This branch enables Parliament to legislate on matters, that would normally fall under the provincial
government competence, when the issue is of such importance that it concerns entire country
• The test is whether the matter of the legislation “goes beyond local or provincial concern or interests and
must from its inherent nature be the concern of the Dominion as a whole” (Local Prohibition case (1896)
A.C. 348). If this test is fulfilled, then the matter comes within the POGG powers in its national concern
branch. Must be “of import or significance to all parts of Canada”
• It will be relevant to and apply to cases where uniformity and consistency of law throughout Canada is not
only desirable, but essential and critical, in the sense that the problem “is beyond power of provinces to deal
with it. This is the case when the failure of one province to act would injure or harm the citizens and
residents of the other cooperating provinces.
• In Johannesson v West St Paul (1952) S.C.R. 292, the failure or lack of one province to agree to uniform
procedures and processes for the use of air space and ground facilities would jeopardize the residents of
other provinces engaged in inter-provincial and international air travel. Thus, aeronautics satisfied the test
of national concern.
• This branch applies to both new matters which didn’t exist at Confederation and to matters which, although
originally matters of a local or private nature in a province, have since become matters of national concern
Distinctiveness
• To qualify as a “matter” coming within the national concern branch of POGG, a topic must be “distinct”.
***
Reference re Anti-Inflation Act (1976) 2 S.C.R. 373
• The Anti-Inflation Act provided the creation by the Governor in Council of guidelines for the restraint
of prices and profit margins, compensation of employees and dividends, and by s. 4(1) applied to the
Government of Canada and its agents and the Territorial Governments and their agents.
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•
Held:
•
•
•
The two questions were posed to the Supreme Court:
I) Is the Anti-Inflation Act, Statutes of Canada 1974-75-76, Chapter 75 (a copy of which Act and the
Anti-Inflation Guidelines made thereunder are attached hereto as Annex "A") ultra vires the
Parliament of Canada either in whole or in part, and, if so, in what particular or particulars and to what
extent?
II) If the Anti-Inflation Act is intra vires the Parliament of Canada, is the Agreement entitled
"Between the Government of Canada and the Government of the Province of Ontario", entered into on
January 13, 1976, (a copy of which is annexed hereto together with copies of the Orders of the
Governor in Council and the Lieutenant Governor in Council as Annex "B") effective under the AntiInflation Act to render that Act binding on, and the Anti-Inflation Guidelines made thereunder applicable to, the provincial public sector in Ontario as defined in the Agreement.
The Court held that the Act was valid legislation for the peace, order and good government of Canada
and did not encroach upon provincial legislative jurisdiction.
Laskin C.J. left open the potential for federal wage and price controls to be upheld under the national
concern branch.
Beetz J. thought that inflation was far too expansive and “diffuse a topic to qualify as a “matter”
coming within the national concern branch of the p.o.g.g. power. In order to qualify as a matter, a
topic MUST BE “DISTINCT”: it must have “a degree of unity that makes it indivisible, an
identity which makes it distinct from provincial matters and sufficient consistence to retain the
bounds of form” (Hogg, 17-15; Id., 457-458)
***
R v Crown Zellerbach (1988) 1 S.C.R. 401
• The Court held the federal Ocean Dumping Control Act (marine pollution) was a matter of
national concern (Le Dain J)
• La Forest J dissented as he thought marine pollution lacked the distinctness mandated of a matter
of national concern.
• Le Dain J: “For a matter to qualify as a matter of national concern…it must have a singleness,
distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern
and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental
distribution of legislative power under the Constitution”
• The Court stated: “The control of marine pollution meets the test. Marine pollution, because of its
predominantly extra-provincial as well as international character and implications, is clearly a matter
of concern to Canada as a whole. The pollution of marine waters, including provincial marine waters,
by the dumping of substances is sufficiently distinguishable from the pollution of fresh waters by
such dumping to meet the requirement of singleness or indivisibility”.
• The Court in this case cited Viscount Simon in Canada Temperance Federation at pp. 205-206:
In their Lordships' opinion, the true test must be found in the real subject matter of the legislation: if it
is such that it goes beyond local or provincial concern or interests and must from its inherent nature be
the concern of the Dominion as a whole (as, for example, in the Aeronautics case and the Radio case),
then it will fall within the competence of the Dominion Parliament as a matter affecting the peace,
order and good government of Canada, though it may in another aspect touch on matters specially
reserved to the provincial legislatures. War and pestilence, no doubt, are instances; so, too, may be the
drink or drug traffic, or the carrying of arms. In Russell v. The Queen, Sir Montague Smith gave as an
instance of valid Dominion legislation a law which prohibited the sale of alcohol. Nor is the validity of
the legislation, when due to its inherent nature, affected because there may still be room for
enactments by a provincial legislature dealing with an aspect of the same subject in so far as it
specially affects that province.
• Supreme Court stated the "National Concern" doctrine is valid, and has the effect of essentially
adding a new category to the list of federal powers, if one can answer "yes" to all questions:
o Is the jurisdiction in question a single, distinct jurisdiction? At para 33, the Court said the
matter “must have a singleness, distinctiveness and indivisibility that clearly
distinguishes it from matters of provincial concern and a scale of impact on provincial
jurisdiction that is reconcilable with the fundamental distribution of legislative power
under the Constitution”.
o Is it impossible for provinces to deal with this jurisdiction on their own? At para. 34, the
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•
•
•
•
Court referred to this factor as the “provincial inability test”. It was stated that this test
would be a justification for finding that a certain matter is one of national concern: “that
provincial failure to deal effectively with the intra-provincial aspects of the matter could
have an adverse effect on extra-provincial interests”.
Does it have ascertainable and reasonable limits, so that it does not remove large areas of
jurisdiction from the provinces?
Le Dain J held that “marine pollution, because of it predominantly extra-provincial as well as
international character and implications, is clearly a matter of concern to Canada as a whole”.
The failure of one province to protect and safeguard its waters could probably result in the
pollution of the waters of other provinces as well as the (federal) territorial sea and high sea.
“The requirement of “distinctiveness” is a necessary but not a sufficient condition for a matter to be
admitted to the national concern branch of p.o.g.g. A distinct matter would also have to satisfy the
provincial inability test (or other definition of national concern) in order to be admitted to the national
concern branch of POGG” (Hogg, 17-16). Thus, distinctiveness alone will not suffice.
Newness
• In the case of R v Crown Zellerbach (1988) 1 S.C.R. 401, the Court at para. 33 stated: “The national
concern doctrine applies to both new matters which did not exist at Confederation and to matters which,
although originally matters of a local or private nature in a province, have since, in the absence of national
emergency, become matters of national concern.
• Beetz J in Anti-Inflation Reference referred several times to a “new matter” or “new subject-matter” and
had described inflation as a “a very ancient phenomenon”
• Peter Hogg comments that “newness” is NOT a requirement for the national concern branch.
The “Emergency” Branch
• Parliament may invoke emergency powers under the emergency branch of POGG.
• This concept came into view when the JCPC ruled in Russell v. The Queen [1882] UKPC 33 that the federal
government could legislate in relation to alcohol, because despite the fact this would probably have been
considered provincial jurisdiction in ordinary circumstances, the federal government was acting to ensure
order in Canada.
The non-emergency cases
• The emergency test first emerged in the Board of Commerce case (1922), although the word emergency
was not used in the opinion.
Board of Commerce case (1922) 1 A.C. 191
• The Privy Council struck down legislation banned the hoarding of “necessaries of life” (defined
as food, clothing, and fuel) and mandated stocks of such necessaries to be sold at fair prices.
• Their lordships rejected the POGG power as authority for the statute on the ground that “highly
exceptional” or “abnormal” circumstances would be required to justify the invocation of POGG;
as examples, they suggested “war or famine” (Hogg, 17-20)
Toronto Electric Commissioners v Snider (1925)
• The issue here was whether legislation for the settlement of industrial disputes was valid or not.
• Privy Council held it was not; relations between employers and employees fell within the
provincial competence of civil rights (within provincial jurisdiction).
• The POGG power was held to be available only in “cases arising out of some extraordinary peril
to the national life of Canada, such as the cases arising out of a war”
•
•
•
The Snider case categorized intemperance or overconsumption in Canada as an emergency: an evil “so
great and so general that at least for the period it was a menace to the national life of Canada so serious and
so pressing that the National Parliament was called on to intervene to protect the nation from disaster”
POGG on the premise of the emergency test was rejected in the Margarine Reference [1951] A.C. 179.
The National Products Marketing Reference [1922] confirmed p.o.g.g. doesn’t resolve issues of creating
effectual marketing schemes.
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War
•
•
•
•
The War Measures Act was announced into force for both world wars; during the wars, the federal
government initiated wide-ranging economic controls in regulations made under the Act.
In Fort Frances Pulp and Power Co. v Man. Free Press Co. [1923] A.C. 695, the Court held: “In a
“sufficiently great emergency such as that arising out of war”, the POGG power would permit laws which
in ordinary times would be competent only to the provinces (Id., 705)
“The emergency branch of POGG should be confined to the temporary and extraordinary role required for
national regulation in time of actual war (or other emergency)” (Hogg, 17-24).
Aside from the two world wars, the War Measures Act was proclaimed in force only one other time and
“that was the “October crisis” of October 1970 when Front de Liberation du Quebec kidnapped a British
diplomat and a Quebec cabinet minister and had made various demands” (Hogg, 17-24).
Inflation
Anti-Inflation Reference [1976]; Re Anti-Inflation Act [1976]
• The federal scheme was temporary in nature. The Act was set to automatically expire at the end of 1978
(it could be aborted earlier or extended by the government with parliamentary approval)
• After 6 months of being in force, the federal government referred (reference question; discussed earlier
in this section) the Act to the Supreme Court for a decision as to its constitutionality.
• The Court held the Act was valid as an exercise of the federal Parliament’s emergency power.
•
“All the Court needs do is to find that a “rational basis” exists for a finding of emergency. Moreover, it is
not necessary for the proponents of the legislation to establish a rational basis, it is for the opponents of the
legislation to establish the absence of a rational basis” (Hogg, 17-27).
Temporary character of law
• One critical restraint and limitation on federal emergency power is that it will support only temporary
measures. A permanent measure has never been upheld under this branch of POGG (emergency power).
Relationship between national concern and emergency
• The “gap” branch of POGG is fairly straightforward. However, the national concern and emergency
branches require greater elaboration and explanation.
• Lederman commented that subject matters such as aviation, the national capital region and atomic energy,
each had a “natural unity that is quite limited and specific in its extent” (Id., 610).
o He compared these “limited and specific” subject matters with “sweeping categories such as
environmental pollution, culture or language” (Hogg, 17-29).
• If these so-called sweeping categories were embraced as federal subject matters merely on the premise of
national concern, then the federal legislative powers would really have no limit or boundaries. This in turn
would tamper with the stability of the existing distribution of legislative powers.
• It is only in an emergency situation that the federal Parliament can presume “the plenary power over the
whole of a sweeping category” (Hogg, 17-30).
• In an emergency, the power of the federal Parliament “knows no limit other than those which are dictated
by nature of the crisis. But one of those limits is the temporary nature of the crisis” (Anti-Inflation
Reference). As Beetz J. said, “in practice, the emergency doctrine operates as a partial and temporary
alteration of the distribution of power between Parliament and the provincial Legislatures”.
• The thesis put forth by Lederman and adopted by Beetz J. in the case of Anti-Inflation Reference is that the
POGG power implements two distinct objectives or functions in the Constitution.
o “First, it gives to the federal Parliament permanent jurisdiction over “distinct subject matters
which do not fall within any of the enumerated heads of section 92 and which, by nature, are of
national concern”, for example aeronautics and the national capital region” (Hogg, 17-31).
o Second, the POGG power grants the federal Parliament temporary power and jurisdiction over all
subject matters required to handle an emergency
• “On this dual function theory, it is not helpful to regard an emergency as being simply an example of a
matter of national concern” (Hogg, 17-31).
• The leading “emergency” cases did consist of legislation which claimed a sweeping novel category of
federal power or jurisdiction over property, prices, wages or persons, for instance, combinations, hoarding,
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•
prices and profits in Board of Commerce, prices in Fort Fences, labour relations and standards in Snider and
Labour Conventions. As such, in these cases the laws were upheld only if there was an emergency
“The leading “national concern” cases each involved legislation over a more distinct and specific subject
matter, for example, aeronautics in Johannesson, the national capital in Munro, atomic energy in Ontario
Hydro and marine pollution in Crown Zellerbach…” (Hogg, 17-32). As such, in these cases an emergency
was NOT called for, and the laws were upheld if the subject matter was deemed to be of national concern.
***
References re Greenhouse Gas Pollution Pricing Act 2021 SCC 11
Facts:
• In 2018, Parliament enacted the Greenhouse Gas Pollution Pricing Act (GGPPA).
• The GGPPA contains four parts and four schedules. Part 1 establishes a fuel charge applicable to producers,
distributors and importers of various types of carbon-based fuel. Part 2 sets out a pricing mechanism for
industrial greenhouse gas (“GHG”) emissions. Part 3 authorizes the Governor in Council to make
regulations providing for the application of provincial law concerning GHG emissions to federal works and
undertakings, federal land and Indigenous land located in that province, as well as to internal waters located
in or contiguous with the province. Part 4 requires the Minister of the Environment to prepare an annual
report on the administration of the GGPPA and have it tabled in Parliament.
• Saskatchewan, Ontario and Alberta challenged the constitutionality of the first two parts and the four
schedules. In split decisions, the courts of appeal for Saskatchewan and Ontario held it is constitutional,
while the Court of Appeal of Alberta held that it is unconstitutional.
Held:
• The objectives of federalism are to reconcile diversity with unity, promote democratic participation by
reserving meaningful powers to the local and regional level and foster cooperation between Parliament and
the provincial legislatures for the common good. Under the division of powers, broad powers were
conferred on the provinces to ensure diversity, while at the same time reserving to the federal government
powers better exercised in relation to the country as a whole to provide for Canada’s unity.
• The Court set out the two-stage analytical approach (pith and substance test). The Court cautioned against
jumping to a conclusion that the national concern doctrine applies, as it is “permanent” in nature and
“confers exclusive jurisdiction over that matter on Parliament”.
• Finding that a matter is one of national concern involves a three-step analysis.
1. As a threshold question, Canada must establish that the matter is of sufficient concern to the
country as a whole to warrant consideration as a possible matter of national concern.
2. The matter must have a singleness, distinctiveness, and indivisibility.
3. Canada must show that the proposed matter has a scale of impact on provincial jurisdiction that is
reconcilable with the division of powers. The purpose of the national concern analysis is to identify
matters of inherent national concern — matters which, by their nature, transcend the provinces.
• The first step a common-sense question about the national importance of the proposed matter. This approach
functions to limit the application of the national concern doctrine and provides important context.
• The second step mandates that a matter have a singleness, distinctiveness and indivisibility that clearly
distinguishes it from matters of provincial concern. Jurisdiction should be found to exist only over a specific
and identifiable matter that is qualitatively different from matters of provincial concern AND only where
the evidence establishes provincial inability to deal with the matter.
• At the final step, Canada must show that the proposed matter has a scale of impact on provincial jurisdiction
that is reconcilable with the fundamental distribution of legislative power under the Constitution. The
purpose of the scale of impact analysis is to protect against unjustified intrusions on provincial autonomy
and prevent federal overreach. At this stage of the analysis, the intrusion upon provincial autonomy that
would result from empowering Parliament to act is balanced against the extent of the impact on the interests
that would be affected if Parliament were unable to constitutionally address the matter at a national level.
Identifying a new matter of national concern will be justified only if the latter outweighs the former.
• In this case, the true subject matter of the GGPPA is establishing minimum national standards of GHG price
stringency to reduce GHG emissions. Both the short and long titles of the Act confirm that its true subject
matter is not just to mitigate climate change, but to do so through the pan-Canadian application of pricing
mechanisms to a broad set of GHG emission sources. Likewise, it is clear from reading the preamble as a
whole that the focus is on national GHG pricing.
• The legal effects of the GGPPA confirm that its focus is on national GHG pricing. It does not require those
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•
to whom it applies to perform or refrain from performing specified GHG emitting activities. Nor does it tell
industries how they are to operate in order to reduce their GHG emissions. Instead, all it does is to require
persons to pay for engaging in specified activities that result in the emission of GHGs. It leaves individual
consumers and businesses free to choose how they will respond, or not, to the price signals sent by the
marketplace. The legal effects are thus centrally aimed at pricing GHG emissions nationally.
Applying the 3-part national concern test:
1. Threshold Question
• Canada has adduced evidence that clearly shows that establishing minimum national standards of
GHG price stringency to reduce GHG emissions is of sufficient concern to Canada as a whole that
it warrants consideration in accordance with the national concern doctrine.
• The history of efforts to address climate change in Canada reflects the critical role of carbon
pricing strategies in policies to reduce GHG emissions.
• There is also a broad consensus among expert international bodies that carbon pricing is a critical
measure for the reduction of GHG emissions.
• This matter is critical to our response to an existential threat to human life in Canada and around
the world. As a result, it passes the threshold test and warrants consideration as a possible matter of
national concern.
2. Matter must have a singleness, distinctiveness, and indivisibility
• Minimum national standards of GHG price stringency relate to a federal role in carbon pricing that
is qualitatively different from matters of provincial concern.
• GHGs are a specific and precisely identifiable type of pollutant.
• The harmful effects of GHGs are known, and the fuel and excess emissions charges are based on
the global warming potential of the gases.
• GHG emissions are also predominantly extra provincial and international in their character and
implications. Moreover, the regulatory mechanism of GHG pricing is also specific and limited.
GHG pricing is a distinct form of regulation that does not amount to the regulation of GHG
emissions generally or encompass regulatory mechanisms that do not involve pricing. Provincial
inability is established in this case.
• First, the provinces, acting alone or together, are constitutionally incapable of establishing
minimum national standards of GHG price stringency to reduce GHG emissions.
• Second, a failure to include one province in the scheme would jeopardize its success in the rest of
Canada. The withdrawal of one province from the scheme would clearly threaten its success for
two reasons: emissions reductions that are limited to a few provinces would fail to address climate
change if they were offset by increased emissions in other Canadian jurisdictions; and any
province’s failure to implement a sufficiently stringent GHG pricing mechanism could undermine
the efficacy of GHG pricing everywhere in Canada because of the risk of carbon leakage.
• Third, a province’s failure to act or refusal to cooperate would have grave consequences for extra
provincial interests.
3. Balancing test
• Although the matter has a clear impact on provincial jurisdiction, its impact on the provinces’
freedom to legislate and on areas of life that would fall under provincial heads of power is
qualified and limited.
• First, the matter is limited to GHG pricing of GHG emissions — a narrow and specific regulatory
mechanism.
• Second, the matter’s impact on areas of life that would generally fall under provincial heads of
power is also limited. The discretion of the Governor in Council is necessary to ensure that some
provinces do not subordinate or unduly burden the other provinces through their unilateral choice
of standards.
• Although this restriction may interfere with a province’s preferred balance between economic and
environmental considerations, it is necessary to consider the interests that would be harmed if
Parliament were unable to constitutionally address the matter at a national level.
• This irreversible harm would be felt across the country and would be borne disproportionality by
vulnerable communities and regions.
• The majority concluded that any constitutional impact is outweighed by the irreversible
consequences on the environment, human health and safety, and for the economy. The overall
well-being of the environment and humanity outweighs any negative constitutional impacts.
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Key Takeaways from References re Greenhouse Gas Pollution Pricing Act
• Federal government’s GHG emission pricing standards will stay put.
• This implicates that provincial and territorial GHG pricing schemes currently below the GGPPA’s standard
will need to be raised to the national minimums as expounded in the GGPPA.
• If the federal government was not capable of addressing GHG emissions on a national level, then the
consequences on the environment, human health and safety would be dire and irreversible.
• The majority commented that the national concern doctrine is rarely used in Canada and is rigidly confined
to maintain and respect the autonomy of the provinces and diversity of confederation. This case was,
however, an appropriate situation where the matter was of genuine national concern and where use of the
doctrine was warranted.
END OF CHAPTER QUESTIONS
1. Which of the three branches of POGG do you believe is most used?
2. In her article, Sina A. Muscati states, “The concept of “public health” has not been explicitly defined in any
Canadian legislation or case law. A 2003 report published by Health Canada’s National Advisory
Committee on SARS and Public Health (the Naylor Report) defines public health as “the science and art of
promoting health, preventing disease, prolonging life and improving quality of life through the organized
efforts of society.”22 Would public health fall under POGG? If so, what branch?
3. Discuss the national concern test as set out in References re Greenhouse Gas Pollution Pricing Act 2021
SCC 11. Did the Court in this case clarify the approach?
22
Sina A. Muscati, POGG as a Basis for Federal Jurisdiction over Public Health Surveillance, Constitutional Forum Constitutionnel: Volume 16,
Number 1, 2007.
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8. CRIMINAL LAW
Distribution of Powers
• Section 91(27) of the Constitution Act, 1867 confers on federal Parliament the power to make laws in
relation to: The criminal law, except the constitution of courts of criminal jurisdiction, but including
the procedure in criminal matters.
• This provision makes clear that the criminal law is a federal responsibility. The criminal law in Canada has
been codified in one federally enacted Criminal Code.
• Nonetheless, for the most part, the provinces enforce the Criminal Code. Therefore, the decisions to
investigate, charge and prosecute offences are subjects or matters of provincial policy.
• The function of the provinces in criminal justice comes from s. 92(14) of the Constitution Act, 1867, which
confers on the provincial Legislatures the power to make laws in relation to: The administration of justice
in the provinces, including the constitution, maintenance, and organization of provincial courts, both
of civil and criminal jurisdiction, and including procedure in civil matters in those courts.
• “This provision authorizes provincial policing and prosecution of offences under Criminal Code, although
there is (unexercised) concurrent federal power too on the basis federal legislative power over criminal law
(or any other subject matter) carries with it the matching power of enforcement” (Hogg, 18-2).
• Criminal trials take place in provincial courts. However, rules of procedure and evidence in a criminal trial
are federal: “procedure in criminal matters” is enumerated in federal power by s. 92(14).
• Another provincial head of power (s. 92(15)) authorizes the provincial Legislatures to make laws in relation
to: The imposition of punishment by fine, penalty or imprisonment for enforcing any law of the
province made in relation to any matter coming within any of the classes of subjects enumerated in
this section.
Definition of Criminal Law
• In the Board of Commerce case (1922), Viscount Haldane said that the federal Parliament’s power to enact
“criminal law” was applicable only “where the subject matter is one which by its very nature belongs to the
domain of criminal jurisprudence”. However, his definition seemed to be far too confined and narrow.
• Lord Atkin in the P.A.T.A. case (1931) A.C. 310, 324 made it transparent that the federal power was “not
confined to what was criminal by the law of England or of any Province in 1867”, and that “the power may
extend to legislation to make new crimes”. He said: “The criminal quality of an act cannot be discerned by
intuition; nor can it be discovered by reference to any standard but one: Is the Act prohibited with penal
consequences? This definition was too expansive and would allow the reach of the federal government to
go beyond what was appropriate (i.e., it could indefinitely expand its jurisdiction).
• Clearly, in order to obtain a proper balance in the distribution of legislative powers a third ingredient in the
definition of criminal law was needed.
Margarine Reference (1951) A.C. 179
• The impugned law in banned the manufacture, importation or sale of margarine.
• The function of this law was to protect and safeguard the dairy industry
Held:
• It was held by the Privy Council that despite the law perfectly aligned with the criminal form of a
prohibition coupled with a penalty, the economic object of shielding an industry from its competitors
made the law in pith and substance in relation to property and civil rights to the province.
• The third ingredient of a criminal law is a typically criminal public purpose.
• The Privy Council held that a prohibition was not criminal unless it served “a public purpose which
can support it as being in relation to the criminal law” ([1949] S.C.R. 1, 50.)
• What public purposes which would qualify? “Public peace, order, security, health, morality: these
are the ordinary though not exclusive ends served by that law…”.
• Rand J was cautious to not offer an exhaustive definition of the purpose of the criminal law. It was
sufficient for him to be confident and convinced that the protection of the dairy industry was not a
qualifying purpose.
• NOTE: When conducting pith and substance, or analyzing a law, determine whether the 3 P’s exist:
public purpose, prohibition and penalty!
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•
•
The protection and sustainability of the environment and the shielding of animals from cruelty are both
public purposes that will sustain laws enacted under the criminal law power.
Nevertheless, in Ward v Canada (2002), a case discussed earlier, the Supreme Court of Canada held that a
federal regulation that banned the sale of baby seals was not capable of being upheld under the criminal law
power. It was found that the ultimate goal of the law was to regulate and manage the fishery and this did not
fall under a criminal public purpose. The law was held to come within the federal power over fisheries.
R. v. Malmo-Levine (2003) 3 S.C.R. 571: “a purpose that will qualify to sustain a law as a criminal law
does not necessarily involve the prevention of harm to other human beings” (Hogg, 18-7).
Reference re Assisted Human Reproduction Act (2010) 3 S.C.R. 457
• The Supreme Court was unanimous that absolute prohibitions of immoral or risky practices associated with
assisted human reproduction was a valid exercise of Parliament’s criminal law power. However, the Court
divided on whether qualified prohibitions that were subject to exceptions or applied to activities unless they
were carried out in accordance with regulations to be made under the Act, under licence and in licensed
premises, fell under the criminal law power.
• McLachlin CJ would have upheld the entire Act due to the existence of prohibitions (absolute or qualified),
penalties, and typically criminal purposes of morality, public health and the personal security of donors,
donees and persons unborn.
• LeBel and Deschamps JJ., on the other hand, held the criminal law power would not extend to the qualified
prohibitions. They believed Rand J’s list of typically criminal purposes “does little to clarify the content of
this substantive component of the criminal law”; in their opinion, the only public purpose that could support
a criminal law “must involve suppressing an evil or safeguarding a threatened interest” (para. 232).
• LeBel and Deschamps JJ held the view that since assisted human reproduction was “not inherently harmful”
and was “not an evil needing to be suppressed” it could not be regulated under the criminal-law power.
• McLachlin C.J. felt that this new definition of the purpose of criminal law “substitutes a judicial view of
what is good and what is bad for the wisdom of Parliament” (para. 76).
• The new definition was rejected by the majority of the Court
• Essentially, the issue of human reproduction/cloning/etc. was more of an ethical issue that did not squarely
fall under a public purpose. The question of whether it is “right or wrong” should be left to Parliament.
Summarizing the Common Law: Definition of Criminal Law
• Prohibition
• Penalty
• Must have a public purpose
o Must look at the pith and substance of the impugned legislation
o Does not matter what the effect is
o May look to surrounding circumstance
o Non-exhaustive list of what counts as “public purpose” – peace, order, morality, health,
security, prevention of crime, environmental protection
• Colourable legislation – construed as if it was criminal law (Morgentaler)
Food and Drugs
Food and drug standards
• A ban on the manufacture or sale of margarine was struck down in Margarine Reference (1951) on the
premise that the purpose of the legislation was an economic one (protecting the dairy industry).
• “It is well-established food and drug legislation, making illegal the manufacture or sale of dangerous
products, adulterated products or misbranded products is within the criminal law power” (Hogg, 18-8.1).
• In Margarine Reference, however, the federal government agreed margarine was not injurious to health.
Illicit Drugs
• Non-medical use of drugs (cocaine, heroin) is prescribed by federal Narcotic Control Act, which forbids the
production, importation, sale and possession of a wide array of illicit drugs
Schneider v The Queen (1982) 2 S.C.R. 112.
• The Supreme Court upheld British Columbia’s Heroin Treatment Act, which provided for obligatory
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•
•
•
•
apprehension, examination and treatment of drug addicts
The Court categorized the legislation as falling within provincial competence.
The Act was tailored to treat, help and cure drug addicts; it was not designed to prevent or punish them.
Dickson J held the medical treatment of drug addiction came within provincial authority over public
health as a “local or private” matter within s. 92(16) of the Constitution Act, 1867.
The coercive elements of the Act were incidental to its public health purpose
Tobacco
RJR-MacDonald v Canada [1995] 3 S.C.R. 199.
• The validity of the federal Tobacco Products Control Act was reviewed in this case.
• Was this a valid criminal law? The Act consisted of a prohibition and a penalty. But was there a
typically criminal public purpose?
Held:
• In terms of the stipulation of warnings, the Court held that the protection of public health fulfilled the
mandatory criminal public purpose
• But in terms of advertising it is not dangerous in and of itself. Also, advertising normally falls under
provincial jurisdiction (property and civil rights).
• The Court held that a prohibition on advertising still had the same aim and underlying public purpose of
safeguarding the public from a dangerous product. As such, the act was held as a valid criminal law.
Assisted Human Reproduction
• “The federal Assisted Human Reproduction Act was an attempted exercise of the criminal-law power to
regulate the use of assisted human reproduction techniques with a view to protecting morality, public health,
and the personal security of donors and donees of sperm and ova and persons not yet born” (Hogg, 18-14).
• In Re Assisted Human Reproduction Act (2010), the Court concurred that the outright ban of disreputable
and dishonourable practices, such as the sale of human embryos, was a valid exercise of the criminal law
power. Nonetheless, the majority found a significant number of the prohibitions in the Act were subject to
exceptions or to a regulatory and licensing scheme, which fell outside the criminal law power.
Competition Law
• Because economic activity neglects provincial boundaries and labour, capital and technology are highly
mobile, it is challenging to govern and regulate anti-competitive practices at a provincial level.
o Generally, it is agreed this type of regulation has to be federal if it is to be effectual.
• In the Board of Commerce case (1921), the statutes were found to be unconstitutional.
• Following the Board of Commerce case, the federal Parliament established the Combines Investigation Act,
1923. This Act repealed the two earlier statutes and substituted them with a more simplified ban on
combines in restraint of trade.
• In the P.A.T.A. case (1931) A.C. 310, the Privy Council upheld the Act as a valid criminal law. Lord Atkin
stated that “if Parliament genuinely determines that commercial activities which can be so described [as
contrary to the public interest] are to be suppressed in the public interest, their Lordships see no reason why
Parliament should not make them crimes” (323-324). This decision made clear the criminal law power was
able to expand into the commerce world.
• In 1935, another statute enacted was a prohibition of anti-competitive price discrimination, which was
added to the Criminal Code. The Privy Council upheld this as a criminal law.
• In 1951, the federal Parliament prohibited resale price maintenance. The Supreme Court of Canada upheld
this as a criminal law.
• Many anti-competitive practices are now de-criminalized; though, criminal sanctions have been retained for
some practices (recall the case of General Motors).
Sunday Observance Law
Federal power
• Before 1903, it was generally agreed and understood that laws relating to Sunday observance were
competent to the provinces (s. 92(15)). That assumption was shattered in A.-G. Ont. V. Hamilton Street
Railway [1903] A.C. 524, where the Ontario’s Lord’s Day Act was struck down as a criminal law.
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•
The Court’s decision in Hamilton was confirmed in the Henry Birks case (1955) S.C.R. 799, in which “a
provincial law, which authorized a municipal by-law requiring the closing of shops on six days recognized
as holy days by the Roman Catholic Church was held to be in the same category as a Sunday observance
law and therefore unconstitutional” (Hogg, 18-18).
R v Big M Drug Mart (1985) 1 S.C.R. 295
• The Supreme Court affirmed the Lord’s Day Act was a valid exercise of the criminal law power
due to the fact it pursued the religious objective of preserving the sanctity of the Christian Sabbath
• “The law came within the typically criminal purposes stipulated by Rand J. in the Margarine
Reference, because it was intended to safeguard morality.
•
The religious purpose is what granted the Lord’s Day Act its criminal character and as such, it was vital to
its validity as an enactment of the federal Parliament. Without a religious purpose, the prerequisite of a
uniform day of rest would be beyond the federal competence”.
Provincial power
• Provinces have the power to regulate and govern the conduct of most business or recreation in the province,
along with labour relations, as maters of property and civil rights or local matters in the province
• This authority encompasses the imposition of limits on hours of work for labour (Reference re Legislative
Jurisdiction over Hours of Labour [1925] S.C.R. 505).
• In Lieberman v The Queen (1963) S.C.R. 643, the Supreme Court “upheld a provincial law which required
the closing of pool rooms and bowling alleys between midnight and six a.m. any weekday and all day on
Sunday” (Hogg, 18-19)
• The Court distinguished Hamilton Street Railway, Henry Birks and other Sunday observance cases on the
basis that the prohibition in those cases had religious intent, whereas the prohibition in Lieberman was
“primarily concerned…with secular matters” (Id., 649).
Gun Control
• For many years, Canada’s Criminal Code controlled access to guns, banning some kinds of guns and
restricting others with registration and licensing prerequisites.
• Parliament in 1995 amended the Criminal Code provisions by enacting the Firearms Act,; this broadened
the existing rules by mandating all guns to be registered and gun owners to be licensed.
***
Reference re Firearms Act (2000) 1 S.C.R. 783
• Supreme Court held the Act was a valid exercise of the criminal law power
• The Act’s objective and purpose was to restrict and control access to inherently dangerous things.
• All of the requirements within the Act were directed at public safety.
• “It was true guns were property, but the Act’s focus on public safety distinguished it from provincial
property registration schemes. The effect on property was incidental to the main purpose of public
safety” (Hogg, 18-20).
• The Court found that the Act was not only regulatory in nature. Its provisions were implemented by
the criminal-law means of prohibition and penalty, as the Act banned possession of a gun without a
license and a registration certificate, and imposed penalties for breach of the prohibition.
Prevention of Crime
Prevention in general
• It is possible for a law to be validly enacted “in relation to” the criminal law, despite the law not having the
features or traits of a criminal law.
• The Criminal Code contains an elaborate regime (scheme) of assessment, treatment and disposition to
handle accused persons who suffer from mental disorders. There are two groups covered by the regime.
• The first group relates to accused persons found “not criminally responsible on account of mental disorder”.
o The preventive feature of the criminal law power authorizes the continued detention of these “not
criminally responsible on account of mental disorder” offenders, despite they have not been convicted
of any crime.
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The function of the criminal law only extends to those NCR offenders who pose a substantial threat to
society. “Once an NCR accused is no longer a significant threat to public safety, the criminal justice
system has no further application” (Winko v. B.C. [1999] 2 S.C.R. 625).
The second group covered by Criminal Code regime consists of accused persons who have been charged
but have not been tried on the ground they are “unfit to stand trial” by reason of mental disorder.
o They stay in the criminal justice system, not because they present a significant threat to public safety,
but due to the fact they are subject to an unsettled criminal charge.
o “It is the criminal procedure aspect of the criminal law power, not the preventative aspect, that
permits the continued detention of accused who are unfit to stand trial” (Hogg, 18-22).
o
•
Criminal law and civil remedy
Federal power generally to create civil remedies
• The federal Parliament does not have autonomous authority to formulate civil remedies similar to its power
over criminal law. “This means if the pith and substance of a federal law is the creation of a new civil cause
of action, the law will be invalid as coming within the provincial head of power “property and civil rights in
the province” (s. 92(13)) (Hogg, 18-23).
• In MacDonald v Vapor Canada (1976) 2 S.C.R. 134, the Supreme Court held s. 7(e) of the federal
Trademarks Act was invalid. A section within the Act permitted a court to grant civil relief – injunction,
damages or accounting of profits – for violation of s. 7(e). The Act did not include a criminal sanction for
infringement of the section. “Laskin C.J. for the majority of the Court described s. 7(e) as essentially an
extension of tortious liability, which therefore came within property and civil rights in the province”.
• “Where the pith and substance of a federal law is not the creation of a civil remedy, but is some other matter
within federal power, there is no reason to doubt the validity of a civil remedy provided for enforcement of
the law. The remedy is valid as incidental to the main purpose of the law” (Hogg, 18-23)
• In Papp v. Papp [1970] 1 O.R. 331 (C.A.), the Court upheld the custody provisions of the federal Divorce
Act because there was a “rational, functional connection “between them and the admittedly valid provisions
of the Act concerning divorce” (Id., 336).
Criminal law power to create civil remedies
• The criminal law power diverges from the other heads of federal power because the criminal law power
considers public instead of private enforcement.
• In R v Zelensky (1978) 2 S.C.R. 940, the Court upheld a provision of the Criminal Code that permitted a
criminal court to order the accused to pay compensation to the victim for any harm or loss inflicted by the
commission of the offence. The compensation order was considered part of the criminal sentencing
procedure in the criminal proceedings, rather than being a distinct, disparate civil action.
• The criminal law power will never authorize the creation of a civil remedy.
• If a federal statute has all the conventional traits of a criminal law and it intends to confer a civil right of
action as an auxiliary method of enforcement, the inquiry or test “of the validity of the civil remedy should
depend upon the answer to the question that was posed in Papp v Papp: whether there is a “rational,
functional connection between what is admittedly good [the prohibition coupled with a penalty] and what is
challenged [the civil remedy]” (Hogg, 18-27).
Criminal Law and Regulatory Authority
• The main inquiry here is if the criminal law power will sustain the creation of a regulatory regime wherein
an administrative agency, body or official executes discretionary power.
• Lord Atkin’s definition of a criminal law (prohibition + penalty) insinuates that formal traits (i.e.,
administration by enforcement officials) were vital to any law which was capable of being classified as
criminal. The competition and insurance cases bolster the notion that the criminal law power will not
support a regulatory scheme, which depends on more complex tools than a mere prohibition + penalty.
***
Reference re Firearms Act (2000)
• It was contended the Act was regulatory instead of criminal legislation due to the sophistication of the
regime and discretionary authority vested in the licensing and registration authorities.
• It was argued that only an outright ban of guns would be a valid criminal law
• The court relied on its decision in R v Hydro-Quebec (1997) for the proposition that the criminal-law
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•
power authorizes complex legislation, including discretionary administrative authority. And the Court
relied on its decision in RJR-MacDonald v Canada for the proposition that a criminal purpose may be
pursued by indirect means” (Hogg, 18-31).
Tactics that would indirectly progress the legislative purpose and intention, for instance, the advertising
prohibition in RJR-MacDonald or the licensing and registration conditions of the gun control
legislation, were permitted by the criminal-law power.
Reference re Assisted Human Reproduction Act (2010)
• Parliament created an Act under its criminal law power to regulate and govern the procedures, processes
and technologies affiliated with assisted human reproduction.
• Some of the provisions were ABSOLUTE PROHIBITIONS (i.e. human cloning)
• Other prohibitions were QUALIFIED by exceptions
• Then there were other bans (“controlled activities”) were applicable to activities unless they were
executed in correspondence with regulations made in the Act, under licence and in licensed premises
• “All prohibitions were back by penalties. The Act included the power to make regulations and
established Assisted Human Reproduction Agency of Canada to administer licensing and regulatory
functions. Quebec directed a reference to its Court of Appeal to challenge constitutionality of most of
the Act” (Hogg, 13-31).
• The absolute prohibitions were agreed to be valid criminal law. It was held all the prohibitions, but the
absolute prohibitions were unconstitutional.
Held:
• McLachlin C.J. would have upheld the entire Act under the criminal law power.
• Hydro-Quebec was cited: “The complexity of modern problems often requires a nuanced scheme
consisting of a mixture of absolute prohibitions, selective prohibitions based on regulations and
supporting administrative provisions.
• “The purpose of these various prohibitions was to safeguard morality, public health and the personal
security of donors, donees and persons not yet born” (Hogg, 18-32).
• For McLachlin C.J. the elements of a valid criminal law – (1) prohibitions, (2) penalty, and (3) typical
criminal purposes – were fulfilled.
• LeBel and Deschamps JJ held Parliament had created technically two Acts rather than a single Act from
a constitutional law standpoint:
o “The absolute prohibitions were prohibitions of reprehensible practices and were properly
classified as criminal law, BUT the qualified prohibitions – those subject to exceptions or to
regulatory or licensing requirements – were the promotion of beneficial practices and outside the
realm of criminal law” (Hogg, 18-32).
• The pith and substance or dominant characteristic of the qualified prohibitions was “the regulation of
assisted human reproduction as a health service” (para. 227)
• The class of subjects fell within exclusive provincial jurisdiction over hospitals, the medical profession,
property and civil rights and local matters.
• LeBel and Deschamps JJ viewed the majority of the Act as “COLOURABLE”. They said, “Parliament
has therefore made a specious attempt to exercise its criminal law power by merely juxtaposing
provisions falling within provincial jurisdiction with others that in fact relate to the criminal law” (para
278). AND they further commented, “Parliament’s intention was to enact legislation in relation to a
matter outside its jurisdiction” (para. 280).
• The absolute prohibitions were upheld as criminal law, but the qualified prohibitions and the licensing
and regulatory regime were for the most struck down
Provincial Power to Enact Penal Laws
• Provincial Legislatures have the authority by virtue of s. 92(15) of the Constitution Act, 1867 to impose
“punishment by fine, penalty or imprisonment” for purposes of enforcing otherwise valid provincial laws.
• The provinces need authority and power to employ penalties for enforcement of their legislation.
• But, the power mandates courts to delineate between valid provincial law with an ancillary penalty and a
provincial law that is not valid because in pith and substance it is criminal.
• In Bedard v. Dawson [1923] S.C.R. 681, the Supreme Court held a provincial law which permitted the
closing of “disorderly houses” was valid. On the surface, the provincial law seemed to merely be
complementing definite criminal laws “by adding new penalties, but Court upheld the law as in relation to
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the use of property, and at most as aimed at suppressing the conditions likely to cause crime rather than at
the punishment of crime” (Hogg, 18-34).
Chatterjee v Ontario (2009)
• Police found $29,000 in cash in a car they pulled over. The cash smelled of marijuana; none was found
• The Appellant was not charged with any drug-related offence, as the police did not have adequate
grounds to do so.
• “The Attorney General of Ontario brought an application in rem for forfeiture of the cash and chattels as
proceeds and instruments of unlawful activity pursuant to the Civil Remedies Act, S.O. 2001, c. 28. In
response, the Appellant brought a motion in which he challenged the constitutionality of the legislation
as ultra vires the province” (CanLII)
Held:
• Supreme Court held the pith and substance of the law was in relation to property.
• The pith and substance or dominant characteristic of the legislation was to disgorge financial gains
acquired via unlawful activities to compensate both private and public victims of unlawful activities and
to subdue the conditions that lead to unlawful activities by taking away incentives.
• Though, the legislation may have some criminal law purpose or intention, the lack of either a
prohibition or a penalty insinuates and meant that the legislation could not be classified or categorized
as criminal law. The Act relates almost entirely to property and civil rights in the province under s.
92(13) of the Constitution Act, 1867.
• NOTE: If provincial heads aren’t able to create criminal law, they should not be expected to shoulder
the costs of criminal behaviour.
NOTE: Provinces have their own powers and can set regulations to create quasi-criminal offences, known as
regulatory offences. The provinces also have a number of important powers associated with the administration of
criminal law – they hire prosecutors, appoint provincial court judge…
***
Reference re Validity of Section 5(a) Dairy Industry Act, [1949] SCR 1
• The main issue in this case was whether section 5(a) of the Dairy Industry Act, R.S.C. 1927, C. 45 was ultra
vires of Parliament.
• Subsection a of Section 5 of the Dairy Industry Act provides that "no person shall manufacture, import into
Canada, or offer, sell or have in his possession for sale, any oleomargarine, margarine, butterine, or other
substitute for butter, manufactured wholly or in part from any fat other than that of milk or cream."
• This case dealt with a prohibition (ban), not regulation. Pro butter dairy farmers made a law banning
margarine saying it was not butter and that it was a health concern.
Held:
• The ban on the importation of the goods in this section was found to be intra vires of Parliament in relation
to foreign trade (federal trade and commerce power).
• The prohibition of manufacture, possession and sale is ultra vires Parliament.
• Importation = intra vires (inside)
• Ban on manufacture, possession and sale = ultra vires (outside)
• The major takeaway: despite the presence of a prohibition (as in this case) under penal sanction, statutes and
legislation must have a TRUE criminal law purpose to be found to fall within the criminal law head. The
Courts will strike down “colourable” legislation, that is, federal legislation that attempts to disguise
regulatory purposes falling within provincial jurisdiction by stating the statute is a prohibition enforced by
criminal sanction for violation.
• At page 20:
It was not contended at bar—and I think it could hardly be contended—that the Dairy Industry Act and
regulations thereunder are not within the domain of the federal parliament by force of Section 95 of our
constitution. It is a law in relation to agriculture which the Parliament of Canada from time to time is
empowered to make in relation to agriculture, and it is not within the competence of the respective
provincial legislatures to enact legislation in this regard when Parliament has already covered the field, in
view of the following words of Section 95: —
and any Law of the Legislature of a Province relative to Agriculture or to Immigration shall have
effect in and for the province as long and as far only as it is not repugnant to any Act of the
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Parliament of Canada.
At page 22, the Court stated: The fact that oleomargarine and margarine do not come directly from the cows
(of course they do not) and the mere contention that they are not natural products, but rather manufactured
articles is not sufficient to remove them from the domain of the federal government in respect of
agriculture.
Reference re Genetic Non-Discrimination Act, 2020 SCC 17
Facts:
• In 2017, Parliament enacted the Genetic Non-Discrimination Act. Section 2 of the Act defines a genetic test
as “a test that analyzes DNA, RNA or chromosomes for purposes such as the prediction of disease or
vertical transmission risks, or monitoring, diagnosis or prognosis”.
• Sections 3, 4 and 5 establish prohibitions relating to genetic tests: individuals and corporations cannot force
individuals to take genetic tests or disclose genetic test results as a condition of obtaining access to goods,
services and contracts; cannot refuse an individual access to goods, services and contracts because they
have refused to take a genetic test or refused to disclose the results of a genetic test; and cannot use
individuals’ genetic test results without their written consent in the areas of contracting and the provision of
goods and services.
• Section 6 provides that the prohibitions established by ss. 3 to 5 do not apply to a physician, pharmacist or
other health care practitioner, or to a person conducting research in certain respects.
• Section 7 provides that doing anything prohibited by ss. 3, 4 or 5 is an offence punishable on
summary conviction or by indictment.
• Section 8 of the Act amended the Canada Labour Code to protect employees from forced genetic testing or
disclosure of test results, and from disciplinary action on the basis of genetic test results, and ss. 9 to 11 of
the Act amended the Canadian Human Rights Act to add genetic characteristics as a prohibited ground of
discrimination and to create a deeming provision relating to refusal to undergo genetic testing or disclose
test results.
• The question was whether sections 1 to 7 were ultra vires to the jurisdiction of Parliament over criminal law
under s. 91(27) of the Constitution.
Held:
• Sections 1 to 7 were found to be intra vires; Parliament had the authority to enact the Act by virtue of its
criminal law power (s. 91(27)).
• The pith and substance of the challenged provisions is to protect individuals’ control over their detailed
personal information disclosed by genetic tests, in the broad areas of contracting and the provision of goods
and services, in order to address Canadians’ fears that their genetic test results will be used against them and
to prevent discrimination based on that information. This matter falls within Parliament’s power over
criminal law.
• The provisions are supported by a criminal law purpose because they respond to a threat of harm to several
overlapping public interests traditionally protected by the criminal law — autonomy, privacy, equality and
public health.
• A law is backed by a criminal law purpose if the law, in pith and substance, represents Parliament’s
response to a threat of harm to a public interest traditionally protected by the criminal law. As long as
Parliament is addressing a reasoned apprehension of harm to one or more of these public interests, no
degree of seriousness of harm need be proved before it can make criminal law.
• Safeguarding autonomy and privacy are established uses of the criminal law power. The conduct prohibited
by ss. 1 to 7 of the Act poses a risk of harm to two facets of autonomy and personal privacy because
individuals have an interest in deciding whether or not to access the detailed genetic information revealed
by genetic testing and whether or not to share their test results with others.
END OF CHAPTER QUESTIONS
1. Can a province ever create a criminal law? Can the criminal law create independent civil remedies? Why or
why not?
2. Discuss the provincial power to enact penal laws.
3. What is a limit on Parliament’s criminal law power?
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9. ANCILLARY POWERS
Note: This section was already addressed above on page 22.
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“The pith and substance doctrine enables a law that is classified as “in relation to” a matter within the
competence of the enacting body to have incidental or ancillary effects on matters outside the competence
of the enacting body” (Hogg, 15-39).
In General Motors v. City National Leasing (1989) 1 S.C.R. 641, Dickson C.J. tried to clarify the multiple
and varying approaches taken by the Courts in terms of defining the degree of the legislative power to
impact matters outside the competence of the enacting legislature (i.e., there was no consensus or consistent
approach in terms of how much one legislature can encroach on the other’s competence)
Dickson C.J. stated: “As the seriousness of the encroachment on provincial powers varies, so does the test
required to ensure that an appropriate constitutional balance is maintained” (Id., 671).
The Court must assess the degree and extent of encroachment of a legislative scheme on the realm of power
of the other government and then the Court must establish how vital and necessary the impugned provision
is to the otherwise valid legislative scheme (Id., 668-669).
With the ancillary powers doctrine, we are looking at schemes (rather than a one-off law). Within the
scheme, there will be multiple provisions, typically one or two which may be outside of that enacting
government’s competence. However, that one provision may be necessary to uphold the entire scheme.
The ancillary powers doctrine can be used to justify the validity of a law that substantial impacts a head of
power not within its jurisdiction/division (enumerated list).
This doctrine enables one level of government to enact provisions that, although encroaching on the other
level of government, are nevertheless valid, as they comprise a significant and vital portion of a broader
legislative scheme that happens to lie within its scope of competencies.
What are the applicable tests? (General Motors)
o For minor or trivial encroachments = rational connection test is suitable (just need to show a
functional relationship)
o For more serious encroachments = a more rigid test is employed, that is, the “truly necessary” or
“essential” test (i.e. the provision in the scheme is absolutely required; without it, the whole
scheme would crumble).
NOTE: the provision [within the broader scheme] cannot be the central theme of the act or scheme; this
would not be ancillary but the dominant feature and as such, it would not be valid.
The Kirkbi v. Ritvik Holdings (2005) 3 S.C.R. 302 case is a prime example of this area and should be
referred to in order to gain a greater comprehension. In this case, the Trade-marks Act was attacked because
section 7(b) offered a civil remedy for a breach of an unregistered trademark. This remedy did not stand
independently; rather, it was part of the greater scheme, that is, the Trade-marks Act. This Act was a valid
law (trade and commerce power). The remedy was able to survive as the intrusion into the provincial
competence was trivial (minimal). A “functional relationship” with the broader scheme of the Trade-marks
Act was all that was required to uphold the civil remedy.
***
General Motors of Canada Ltd. v City National Leasing (1989) 1 SCR 641
• A challenge to the validity of the civil remedy that had been introduced into the federal Competition Act
in 1975 (used to be called the Combines Investigation Act)
Held:
• The Supreme Court held the Combines Investigation Act was indeed a valid exercise of the “general”
trade and commerce power.
• Dickson CJ applied and executed the Vapor test, which comprised of three factors/elements:
(6) The presence of a “general regulatory scheme”
(7) The “oversight of a regulatory agency”
(8) A concern “with trade as a whole rather than with a particular industry”
• Dickson CJ added a fourth and a fifth to these three above elements:
(9) “The legislation should be of a nature that the provinces jointly or severally would be
constitutionally incapable of enacting”
(10) “The failure to include one or more provinces or localities in a legislative scheme would
jeopardize the successful operation of the scheme in other parts of the country”
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In this case all of the five elements were present. (1) There was a regulatory scheme; (2) It operated
under the oversight of a regulatory agency; and (3) It was concerned with trade in general, not with a
particular place or particular industry.
Furthermore, in relation to elements (4) and (5), “only national regulation of competition could possibly
be effective, because of the ability of factors of production to move freely from one province to another”
(Hogg, 20-16).
It is vital to realize that the general branch of the trade and commerce power permits the regulation of
intraprovincial trade (federal can regulate provincial trade).
The Court concluded (Dickson C.J.) that Parliament (as well as the provinces) has the constitutional
power to regulate intraprovincial aspects of competitions.
***
Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453
Facts:
• Since 2005, a company carried on a business of air excursions on Gobeil Lake in the municipality of
Sacre-Coeur. It had a license that was issued pursuant to regulations under the federal Aeronautics Act.
• In 1995, municipal zoning by-law No. 210, adopted pursuant to the Quebec Act respecting land use
planning and development, was amended by by-law No. 260.
• The municipality applied for an injunction ordering the company to stop its aviation activities on the lake
because the operation of the aerodrome violated the by-law.
Held:
• The pith and substance of by-law No. 260 was found NOT to be related to zoning; the Court held it did not
fall under any provincial head of power. Instead, its pith and substance (“essence”) was to regulate the
location of water aerodromes in the municipality, a matter that falls within federal jurisdiction
(aeronautics). Thus, because by-law No. 260 was in pith and substance about the regulation of aeronautics,
it consequently fell outside provincial jurisdiction.
• The by-law was NOT saved by the ancillary powers doctrine.
• Under this doctrine, if a provision is in pith and substance outside the competence of its enacting body it
can be saved if it is a critical piece of a broader legislative scheme (i.e., the Act as a whole) that is within
the competence of the enacting body. For example, if a federal Act as a whole is within the federal
competence but has only one provision that is external (i.e., outside its jurisdiction), if that one provision is
an important part of the Act as a whole, then it can be saved, even though it is ultra vires.
• An important piece of the ancillary doctrine test:
o The degree of integration required increases in proportion to the seriousness of the
encroachment. Where the impugned measure encroaches only slightly on the jurisdiction of the
other level of government, a rational, functional connection is required.
o As the degree of intrusion grows more serious, the required degree of integration tends toward a
test of necessity.
• In this case, the by-law did not constitute a serious intrusion and as such, the rational functional test was
applicable. To meet the test, a prima facie invalid measure must complement rather than merely
supplement the legislative scheme. It must, both rationally, and in its function, further the purposes of the
valid legislative scheme of which it is said to be part.
• By-law No. 260 is not rationally and functionally connected to by-law No. 210. A close examination of
the purposes and effects of by-law No. 260 reveals that it does not further the objectives of zoning law
generally, or by-law No. 210 in particular.
• The by-law bans aerodromes throughout the municipality, which spans a variety of land uses. By-law No.
260 does not function as zoning legislation, but rather, is a stand-alone prohibition.
• At para [102]: “In the case of a constitutional challenge that relates not to an entire set of rules established
in a statute but only to one or more specific provisions, it is not enough for the court to consider how the
impugned provisions, considered in isolation, may relate to the division of powers. It must take the
analysis further by determining whether the entire statute containing the provisions is valid and, if it is,
ascertaining the extent to which the provisions are integrated into the statute. Provisions that would be
invalid if considered in isolation may be found to be valid if they are sufficiently integrated into a
statute that is itself valid as a whole.”
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10. PARAMOUNTCY
QUICK DISCUSSION:
• There are clearly times when valid federal and provincial law will overlap.
• It may be the case that this overlap will not be an issue (double aspect doctrine discussed previously) and no
conflict will occur. However, where there is conflict between a valid federal law and valid provincial law,
the doctrine of paramountcy states that the federal law is to prevail, and the provincial law is to be
inoperative to the extent of that conflict.
Problems of Inconsistency
• In Canada, conflict between a statute of the federal legislature (Parliament) and of a provincial Legislature
is “bound to occur from time to time because federal and provincial laws are applicable in the same territory
and by virtue of the double aspect and pith and substance (incidental effect) doctrines may be applicable to
the same facts” (Hogg, 16-2).
• Doctrine of “federal paramountcy” Rule = if there are conflicting federal and provincial laws, it is the
federal law which is paramount and as such, prevails.
• The doctrine of paramountcy is applicable in the circumstance wherein there is a federal and provincial law
which are (1) each valid (intra vires) and (2) inconsistent (conflicting)
o Validity is dependent upon whether the “matter” (remember, the dominant feature or pith and
substance) of the law falls under the “classes or subjects” allocated to the enacting Parliament of
Legislature.
o If one a law is either invalid or there is no conflict (i.e., both the laws can be followed and adhered to
without conflict), then issue is resolved without any need to resort to the paramountcy rule.
o First, assess if each law is independently valid. Only once each law is found to be valid do you move
onto assessing inconsistency or conflict of the laws (Rothman’s test discussed later).
Impossibility of dual compliance
• An express contradiction happens in the situation where it is not possible for a person to obey or adhere to
both the federal and provincial law
• Smith v. The Queen [1960] S.C.R. 776, 800: “compliance with one law involves breach of the other”.
• In Multiple Access v McCutcheon (1982) 2 S.C.R. 16, the Supreme Court said the two laws were NOT in
conflict because the federal and provincial laws provided basically the identical remedy for essentially same
conduct. Provincial law was operative; it was basically a duplication of the federal law. Both these laws
could be obeyed (no conflict).
• “Is there an impossibility of dual compliance if a federal law requires consent of a federal agency for a
particular project and provincial law requires consent of provincial agency for same project?” (Hogg, 16-6).
o There is only an impossibility in the situation where one level of government refutes consent and
the other grants consent; here dual compliance (express contradiction) is not possible.
British Columbia v Lafarge Canada (2007)
• It was a requisite to acquire approval from the Vancouver Port Authority (federal law) for development
of a marine facility on site in port of Vancouver, which was federally regulated.
• But the site was also within the geographic confines of the City of Vancouver (provincial law); the
issue was if the development also mandated approval from the City
Held:
Binnie and LeBel JJ, at paras 81-82, held that the mere stipulation of municipal approval would lead to
“operational conflict” and thus, it was not obligatory to seek the permission of the City (federal paramountcy;
federal law prevailed – only require approval from the Vancouver Port Authority).
Frustration of federal purpose
• Where a provincial law would frustrate the purpose of a federal law = where there are overlapping federal
and provincial laws and it is feasible to obey both, but the effect or impact of the provincial law would
result in a frustration of the purpose of the federal law (express contradiction)
• “The courts have to interpret the federal law to determine its purpose and then have to decide if the
provincial law would have the effect of frustrating the federal purpose” (Hogg, 16-7).
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Bank of Montreal v Hall (1990) 1 S.C.R. 121
• The federal Bank Act = action to enforce mortgage loan agreement
• A provincial law mandated notice of intention to seize. The respondent argued the bank did not follow
Saskatchewan’s law mandating notice (this frustrated the federal law – Bank Act).
• The Supreme Court of Canada held the bank was not required to obey or adhere to the provincial law,
as it was inconsistent with the federal law
• Purpose of federal law would be frustrated if bank had to comply with provincial law (La Forest J)
***
Rothmans, Benson & Hedges v Saskatchewan (2005)
• Federal Tobacco Act prohibited the promotion of tobacco products.
• However, the Act stated that “a person may display, at retail, a tobacco product”
• The Saskatchewan Tobacco Control Act prohibited the display of tobacco products in any premises in
which minors (persons under 18 years of age) were allowed.
• Is Saskatchewan’s legislation sufficiently inconsistent with Federal legislation as to render it
inoperative pursuant to the doctrine of federal legislative Paramountcy
• Look at both tests to establish conflict (even if fails on first; just execute both for comprehensiveness)
o Can a person simultaneously comply with both acts? (Dual compliance test)
o Does the provincial act frustrate Parliament’s purpose in enacting the Act? (Frustration of
legislative intent test)
Held:
• Both the general purpose and intention of the Tobacco Act (“address a national health problem”) and
the specified purpose of the permission to display ( “circumscribe the Tobacco Act’s general
prohibition on promotion”) “remain fulfilled” (para 25).
• The Court held that the provincial law did not frustrate the purpose of the federal law and therefore,
was not rendered inoperative by paramountcy.
• Doctrine of federal legislative Paramountcy dictates that where there is an inconsistency between
validly enacting but overlapping provincial and federal legislation, the provincial legislation is
inoperative to the extent of the inconsistency. In this case, retailers can comply with both laws, either
by refusing to admit or allows minors (persons under 18) or by not displaying tobacco products
• Thus, no inconsistency between the acts – dual compliance is possible and no frustration
Overlap and duplication
• If there is overlap or duplication, as long as no conflict or inconsistency exists, this is not problematic.
• Overlapping legislation is duplicative to the extent of the overlap; provincial law is not inoperative to the
extent of its overlap with federal law
Effect of inconsistency
• Once it has been established that a federal law is inconsistent or conflicts with a provincial law, the doctrine
of federal paramountcy holds that the provincial law must yield to the federal law
• The most precise manner to explain the impact on the provincial law is to say, “it is rendered inoperative to
the extent or degree of the inconsistency”.
• The paramountcy doctrine applies only to the extent of the inconsistency
• It is deceptive to explain or depict the effect of the paramountcy doctrine as rendering a provincial law
“inapplicable”. This may have the consequence of confusing the paramountcy doctrine with
“interjurisdictional immunity” (Hogg, 16-20)
END OF CHAPTER QUESTIONS:
1. What is the difference between interjurisdictional immunity and the doctrine of federal paramountcy?
2. Explain the test in Rothmans, Benson & Hedges?
3. Elaborate on the following statement: The doctrine of paramountcy is applicable in the circumstance
wherein there is a federal and provincial law which are (1) each valid (intra vires) and (2) inconsistent
(conflicting)
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11. INTERJURISDICTIONAL IMMUNITY
Note: This section was already addressed above on page 24.
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D. Gibson contends that the concept “interjurisdictional immunity” bears no specific meaning.23
NOTE: this doctrine is distinct from the paramountcy doctrine (to be discussed). The paramountcy doctrine
= two pieces of legislation regulate the same activities and CONFLICT (i.e., one says you must drive at
night, the other says you cannot drive at night) à the federal law is supreme, triumphs and renders the
provincial legislation inoperative. In contrast, interjurisdictional immunity is activated EVEN IF THERE IS
NO MEETING of legislation or CONTRADICTION between the federal and provincial laws.
I.e., the law in The Bank of Toronto v Lambe [1887] imposed a tax on banks; it was held intra vires (within
the provincial competence) because the dominant characteristic was NOT banking, which is a federal head.
If the law actually related to banking, such as a provincial law that limits the rights of creditors in terms of
debt enforcement (this law would hinder banking), it would be ruled inapplicable.
“It has been held that an otherwise valid provincial law may NOT impair the status or essential powers of a
federally-incorporated company. Thus, a provincial law prohibiting all extra-provincial companies from
operating in the province (John Deere Plow Co. v. Wharton [1915] A.C. 330)” was read down in order to
excuse federally incorporated companies (Hogg, 15-29)
Even though a provincial law may be constitutionally valid (pith and substance = valid competence), there
exists certain and specific circumstances (exceptions) wherein it is unconstitutional to apply the law to
certain “federal regulated persons or undertakings”.
For example, provincial labour laws are within the property and civil rights in the province (92(13)) and are
therefore generally valid in regard to workplaces within the province. However, labour laws are not
applicable to particular workplaces that are exclusive to the federal government (I.e., aeronautics, banks).
In situations like this, the provincial law, despite being typically valid, will be “inapplicable” due to the
doctrine of interjurisdictional immunity (the federal body is immune; the provincial law does not apply to
it). You can almost visualize this. Imagine a bunch of boxes and each represents a different tech company.
All the names on the boxes are of Ontario-based companies, except one, it is a federally incorporated
company (incorporated under the Canada Business Corporation Act and not the Ontario Business
Corporation Act). The province enacts a law that applies to labour laws for tech companies. The federally
incorporated tech company will be immune, and the provincial law won’t apply to it (“inapplicable”).
NOTE: this doctrine is rarely applied in practice; the Supreme Court has held it is a “narrow” doctrine that
should only be applied with “restraint”.
***
Canadian Western Bank v. Alberta (2007) 2 S.C.R. 3
• “Interjurisdictional immunity would apply only if a provincial law would impair a “core competence”
of Parliament or “a vital or essential part of an undertaking it duly constitutes” would be impaired by a
provincial law. If the core competence or vital part would merely be affected (without any adverse
consequence) by a provincial law, no immunity applied” (Binnie and Lebel JJ)
• Binnie and LeBel JJ. said impairment would consist of an “adverse consequence” that placed the core
or vital part “in jeopardy”, albeit “without necessarily, ‘sterilizing’ or ‘paralyzing’ (para 48).
Held:
It was held by the Court that the vital part of an undertaking should be confined/restricted to functions that
were “essential” or “indispensable” or “necessary” to the federal character (core) of the undertaking.
The Court went on to state that the promotion of insurance by banks was too distant and far removed from
the core of banking to constitute as a vital part of the banking undertaking (paras 51, 63). Thus, the Alberta
Insurance Act was capable of being validity applicable to the banks when they promoted insurance
•
23
Just three years later, after the Canadian Western Bank case, the Court in Quebec v. Canadian Owners and
Pilots Associations (below) gave a more expansive application and interpretation of the interjurisdictional
immunity doctrine.
D. Gibson, “Interjurisdictional Immunity in Canadian Federalism” (1969) 47 Can. BarRev. 40.
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***
Quebec (Attorney General) v Canadian Owners and Pilots Association (2010) SCC 39, 2 SCR 536
• The main question in this case was if a provincial law, which stipulated specific regions as
agricultural zones within the provinces which could not be utilized for non-agricultural purposes,
could ban the operation of an airstrip (aeronautics) on land zoned as agricultural.
Held:
• Supreme Court held the provincial law was intra vires and thus valid, as it related to land use
planning and/or agriculture, which was a provincial competence.
• The Court applied the doctrine of interjurisdictional immunity and concluded that the provincial
law was “inapplicable to the extent that it prohibits aerodromes in agricultural zones” (para 4).
McLachlin C.J. held that “the location of aerodromes was “essential” to the federal power over
aeronautics and was therefore within the “core” of the power.
• The effect of the provincial law on that core was sufficiently serious to count as an “impairment”
(Hogg, 15-37).
•
•
RULE à Beetz J (Canadian Western Bank [2007] 2 S.C.R. 3): if the provincial law would affect the
“basic, minimum and unassailable” core of the federal subject, then the interjurisdictional immunity
doctrine stipulated that the provincial law must be restricted in its application (read down) to exclude the
federal subject.
o If the provincial law did not affect/impair the core of the federal subject, then the pith and
substance doctrine stipulated that the provincial law validly applied to the federal subject
o “Only if the provincial law would “impair” the core of the federal subject, would
interjurisdictional immunity apply” (Hogg, 15-38.4).
Remedy = reading down is the remedy that is used in interjurisdictional immunity cases.
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III.
ABORIGINAL RIGHTS AND THE CONSTITUTION
12. INTRODUCTION
Section 25
25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or
derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of
Canada including:
(a) Any rights or freedoms that have been recognized by the Royal Proclamation of October 7. 1763; and
(b) Any rights or freedoms that now exist by way of land claims agreements or may so be acquired
Department of Justice (Government of Canada):
Purpose of Section 25: “There is insufficient judicial consideration of this provision to state the purpose with any
certainty. In R. v. Kapp, [2008] 2 SCR 483) the federal government proposed that section 25 is a mechanism for the
reconciliation of conflicts between the rights and freedoms guaranteed by the Charter and aboriginal, treaty, or other
rights and freedoms of the aboriginal peoples of Canada”.
Analysis:
• What little judicial treatment there has been, as well as the plain wording of the provision, make it clear that
section 25 does not create any new rights but rather protects against the abrogation or derogation of
existing aboriginal, treaty or other rights or freedoms by the protections in the Charter (Corbiere, per
L’Heureux-Dubé J., concurring in the result; Quebec Secession Reference; Kapp, per Bastarache J.)
• It is “…triggered when section 35 aboriginal or treaty rights are in question, or when the relief requested
under a Charter challenge could abrogate or derogate from ‘other rights or freedoms that pertain to the
aboriginal peoples of Canada’” (Corbiere, per L’Heureux-Dubé J.)
Section 25 is part of the Charter, but it does not create any new rights.
• It is interpretive provision, included to make clear the Charter is not to be construed as derogating from
“any aboriginal, treaty or other rights or freedoms that pertain to aboriginals of Canada”
• In the absence of s.25, it would perhaps have been arguable that rights attached to groups defined by race
were invalidated by s.15 (equality clause) of the Charter.
• S.35 is not merely a saving provision but affords constitutional protection from legislative impairment for
the rights that it covers. It leaves s.25 with very little work to do.
• Essentially, section 25 protects Aboriginal rights, title, etc. in situations wherein other groups may claim
that there is discrimination. For instance, Aboriginals are able to fish for a longer duration of the year than
are other individuals. Other people may argue this is discriminatory. However, this right to fish for extended
periods is protected by section 35 and it is not discriminatory as it enables Aboriginals to survive. This right
cannot be subject to a Charter review; it “shielded” or immune.
Section 35
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and
affirmed
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims
agreements or may so be acquired
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are
guaranteed equally to male and female persons.
Outside Charter of Rights
• Section 35 is outside the Charter of Rights which is advantageous in some regards.
o The rights contained in s.35 are not qualified by s.1 of Charter: the rights are not subject to “such
reasonable limits prescribed by law as can be demonstrably justified in a free…”
o The rights are NOT subject to its legislative override under s.33 of the Charter.
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•
o The rights are NOT effective only against governmental action (s.32 of the Charter)
On the downside, the con is that the rights are NOT enforceable under s.24, a provision that allows
enforcement only of Charter rights.
“Aboriginal peoples of Canada”
• “Indian, Inuit and Metis peoples of Canada” – obvious the phrase includes not only status Indians, BUT
ALSO non-status Indians, as well as the Inuit (or Eskimo) and Metis peoples.
• In R v Powley (2003) 2 S.C.R. 207, the Court did not offer a “comprehensive definition of who is Metis for
the purpose of asserting a claim under s.35” but the Court did articulate “three broad factors as indicia of
Metis identity” (Hogg, 28-44; para. 30): 1) "Self-identification”: claimant must self-identify as a member of
a Metis community; 2) “Ancestral connection”: claimant must trace his ancestry to a historic Metis
community; and 3) “Community acceptance”: claimant must be a member of and participant in the modern
Metis community
“Existing”
• It is obvious from of s.35, the word “existing” does not exclude rights that come into existence after 1982.
“Such rights could ONLY BE TREATY RIGHTS, since aboriginal rights pre-date European
settlement” (Hogg, 28-44)
• Subsection (3) – “or may be so acquired” – means treaty rights acquired after 1982 are protected by s.35
• Sparrow held the word “existing” in s.35 meant “unextinguished” ([1990] 1 S.C.R. 1075, 1091)
• If a right had been validly extinguished before 1982, then it was not afforded the protection of s.35.
• The Court in Sparrow held the word “existing” implied the guaranteed rights are “affirmed in a
contemporary form rather than in their primeval simplicity and vigour” (Id., 1093).
“Recognized and affirmed”
• Court in Sparrow held the phrase “recognized and affirmed” should be interpreted in alignment with the
principle that “treaties and statutes relating to Indians should be liberally construed and doubtful
expressions resolved in favour of the Indians” (Nowegijick v. The Queen [1983] 1 S.C.R. 29, 36.
o “Recognized and affirmed” should also be interpreting as including the fiduciary duty that
government owes to the aboriginal peoples
o Based on these two grounds, the Court reached the verdict that s.35 should be read and interpreted
as a constitutional guarantee of aboriginal and treaty rights.
• Section 35 is not part of the Charter of Rights and Freedoms. This of course means it is not subject to the
section 1, Oakes test, which you will learn about in detail after. Section 1 qualifies the Charter rights, if you
will; it implicates they are not absolute, in that, a law may infringe on an individual rights if it is reasonable
in a democratic society (“such reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society”)
• Nonetheless, the Court found the rights safeguarded by s.35 were also not absolute. They were subject to
regulation by federal laws, provided the laws met a standard of justification” (similar to s.1 Oakes test).
o “Any law that had the effect of impairing an existing aboriginal right would be subject to judicial
review to determine whether it was a justified impairment. A justified impairment would have to
pursue an objective that was “compelling and substantial” (Hogg, 28-46)
• If it was held a sufficient objective did exist, then the law had to execute means that were consistent and
aligned with “the special trust relationship” between government and the aboriginal peoples.
Application to treaty rights
• Sparrow was about an aboriginal right, NOT a treaty right. In R. v. Badger (1996) 1 S.C.R. 771, it was held
by the Supreme Court that the Sparrow test applied to treaty rights as well as aboriginal rights. This was
confirmed in R. v. Cote [1996] 3 S.C.R. 139.
• In R. v. Marshall (1999), the Court confirmed that a treaty right was capable of regulation, as long as the
Sparrow test of justification was met. However, in this case, the Court went a step further. The Supreme
Court stated that there was a distinction between DEFINING the treaty right and REGULATING it. Laws
that impose catch restrictions (or any limitations for that matter) on aboriginal fishing that had as their aim
restricting the aboriginal catch to a “moderate livelihood” were merely “defining” the treaty right. These
laws would NOT NEED to fulfill the Sparrow test of justification.
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•
“Only those laws that would take the aboriginal catch below the quantities reasonably expected to produce a
moderate livelihood should be regarded as “regulating” the treaty right, and only those laws would need to
satisfy the Sparrow test of justification” (Hogg, 28-50).
g) Application to extinguishment
• S.35 now shields aboriginal and treaty rights from extinguishment by the federal government (Sparrow).
• The impact of Sparrow is that aboriginal and treaty rights are only capable of extinguishment by two means:
(1) by surrender (involves consent) and (2) by constitutional amendment.
• Remember, the Sparrow test will save a federal law that attempts to regulate rights, NOT one that purports
to extinguish them.
h) Application to provincial laws
• In Sparrow, the Court said: “S.35 also affords aboriginal people constitutional protection against provincial
legislative power”. It was ambiguous as to whether this implied that s.35 imposed an absolute bar on any
violation of aboriginal or treaty rights by provincial law or if s.35 would allow a breach by provincial law if
the law fulfilled the justificatory standards of Sparrow.
• The latter approach has been insinuated in two cases: R v Badger (1996) and R v Cote (1996)
• “…provincial legislative power does not extend to laws that would impair aboriginal or treaty rights
because such laws affect “Indianness”. By virtue of s.88 of the Indian Act, provincial laws of general
application that affect Indianness may become applicable to Indians. Treaty rights, however, are expressly
immunized by s.88 from the provincial laws that are incorporated by s.88” (Hogg, 28-51).
Federal Legislative Power
Section 91(24)
• Section 91(24) of the Constitution Act, 1867 confers upon the federal Parliament the authority and power to
make laws in relation to “Indians, and Lands reserved for the Indians”
• This section consists of two heads of power: a power over “Indians” and over “lands reserved for Indians”
o The first power can be executed in relation to only Indians whether or not they reside on, or have
any connection/affiliation with, lands reserved for the Indians.
o “The second power may be exercised in relation to Indians and non-Indians so long as the law is
related to lands reserved for Indians” (Hogg, 28-2).
b) Indians
• Persons within the statutory definition of the Indian Act are known as “status Indians” enjoy the right and
privilege to live on Indian reserves and various other Indian Act privileges.
c) Lands reserved for the Indians
• S. 91(24) confers upon the federal Parliament legislative power over “lands reserved for Indians”.
• In St Catherine’s Milling case (1889) 14 App. Cas. 46, the Privy Council held that the underlying title to the
lands reserved for the Indians remained in the Crown in right of the province (Crown hold title).
d) Canadian Bill of Rights
• Canadian Bill of Rights is only applicable to federal laws. It contains, in s. 1(b): a guarantee of “equality
before the law” and specifically forbids “discrimination by reason of race”
• The Canadian Bill of Rights was eventually superseded by the 1982 Canadian Charter of Rights and
Freedoms.
e) Charter of Rights
• Section 15 of the Charter also contains an equality guarantee. The Indian Act is yet to be challenged under
Charter, section 15, due to its employment of the “Indian” classification.
• The Indian Act is susceptible to a challenge, like any other statute, if it breaches section 15 for any reason
save and except its use of the “Indian” classification.
• Similar to other statutes, the Indian Act is susceptible to attack if it violates s.15 for any reason other than its
utilization of the “Indian” classification. In Corbiere v Canada (1999) 2 S.C.R. 203, the provision of the
Indian Act that made residence on the reserve a requisite for voting in band elections was struck down by
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the Supreme Court. The Court held that distinguishing between Indians who lived on the reserve (and could
vote) and those who lived off the reserve (and could not vote) was an infringement of s.15.
f) Treaties
• In terms of treaties with other countries, the general rule of thumb is that they have no impact on the internal
law of Canada unless they are implemented and executed by legislation
• S 35 of Constitution, 1982 now offers constitutional protection to rights created by treaties entered into with
Indian tribes or bands and even maybe rights established by provisions in international treaties
Provincial Legislative Power
Application of provincial laws
• The general rule is that provincial laws are applicable to Indians and lands reserved for Indians.24
• In R. v. Hill (1907) 15 O.L.R. 406 (C.A.), the court found that a provincial law restricting the practice of
medicine to qualified doctors was applicable to Indians.
• In R. v. Francis [1988] 1 S.C.R. 1025, the Court held that provincial traffic laws were applicable to Indians
driving an automobile on an Indian reserve.
• Provincial Legislatures have the power and authority to enact their laws applicable to Indians and on Indian
reserves, as long as the law is in regard to a matter coming within a provincial head of power
• There are 5 exceptions to the general rule provincial laws apply to Indians and lands reserved for Indians:
1) Singling out
• A provincial law that singled out Indians or Indian reserves for special treatment would jeopardize
being classified as a law in relation to Indians or Indian reserves; and thus, it would be invalid (R v.
Sutherland [1980] 2 S.C.R. 451, 455).
2) Indianness
• A provincial law that impacts “an integral part of primary federal jurisdiction over Indians and lands
reserved for Indians” will be inapplicable to Indians and lands reserved for Indians, despite the law
being one of general application that falls under provincial jurisdiction.
• This ambiguous exception, “which has been framed as precluding laws that impair the “status or
capacity” of Indians, or that affect “Indianness”, has its analogy in the immunity from provincial laws
that impair a vital part of undertakings within federal jurisdiction” (Hogg, 28-12).
• The Indianness exception implies that provincial laws are not permitted to impact or affect
aboriginal rights or treaty rights. Nor can provincial laws impact Indian status.
• Hunting on a reserve is such a critical, symbolic and vital element of traditional Indian heritage that it
should be free of (untouchable from) provincial regulation.
NIL/TU, O Child and Family Services Society v B.C.G.S.E.U. (2010) 1 S.C.R. 950
• A child welfare agency was located on one of the reserves. The workers and employees were
aboriginal; so were the clients (aboriginal people living on the reserves). The goal was to
assist the distinct cultural, physical and emotional needs of the children and families of the
seven First Nations; it received federal funding from the Department of Indian Affairs.
• The issue was whether its labour relations was under the federal or provincial competence.
• The Court answered unanimously: the jurisdiction was provincial
• “This remained the case even though its work was delivered by and focused on aboriginal
people and partially funded by the federal government. For the majority, the fact that the
agency was a provincial undertaking was the answer to the question: no inquiry into the “core
of Indianness” was called for” (para. 46; Hogg, 28-14.1).
3) Paramountcy
• If a provincial law conflicts a provision of the Indian Act (or any other federal law), the provincial law
is rendered inoperative by the doctrine of federal paramountcy
24
P. Hughes, “Indians and Lands Reserved for the Indians” (1983) 21 Osgoode Hall L.J. 82
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4) Natural Resources Agreements
• The right of Indians to take game and fish for food is defined and protected in three prairie provinces
by the “Natural Resources Agreements”. Provincial laws aren’t allowed to deprive Indians of this right.
5) Section 35
• “Aboriginal and treaty rights”, since 1982, have been protected by s.35 of the Constitution Act, 1982.
Since 1982, s.35 has given constitutional status to aboriginal and treaty rights, constituting yet another
basis upon which they are protected from impairment by provincial law.
• Section.35, unlike Indianness exception and s.88, is applicable to federal and provincial laws
Section 88 of the Indian Act
a) Test of s.88
• Section 88 of the Indian Act: “Subject to the terms of any treaty and any other Act of the Parliament of
Canada, all laws of general application from time to time in force in any province are applicable to and in
respect of Indians in the province, except to the extent that such laws are inconsistent with this Act or any
order, rule, regulation or by-law made thereunder, and except to the extent that such laws make provision
for any matter for which provision is made by or under this Act”.
• S.88 makes transparent that provincial “laws of general application” are applicable to “Indians”; but it
makes no reference to lands reserved for the Indians. However, the section does indeed extend to this.
b) Laws of general application
• The phrase, “laws of general application”, disregards provincial laws that single out Indians for special
treatment.
• The Supreme Court 1978: s.88 didn’t make provincial laws affecting Indianness applicable to Indians.25
• Derrickson v. Derrickson [1986] 1 S.C.R. 285, 297; R v. Francis [1988] 1 S.C.R. 1025, 1030: “laws of
general application” in section 88:
o General application: apply to everyone (generally)
o Section 88 expands the body of provincial law that is applicable to Indians
o Provincial laws of general application are capable of infringing aboriginal rights
c) Paramountcy exception
• Section 88 of the Indian Act is explicitly subject to “any other Act of the Parliament of Canada”; this means
conflict between a federal statute and a provincial law of general application has to be solved in favour of
the federal statute
• The closing language of s.88 states that provincial laws of general application are applicable “except to the
extent that such laws make provision for any matter for which provision is made by or under this Act”
o This is different from paramountcy doctrine as we know it; paramountcy only applies where there
is an express contradiction between a federal and a provincial law
o It does not apply where the federal and provincial laws, while not in direct conflict, are merely
occupying the same field, or making provisions for the same matters
• Therefore, “the closing words of s.88 go further than the paramountcy doctrine and will render inapplicable
to Indians some provincial laws of general application which are not in direct conflict with Indian Act”
(Hogg, 28-18).
• The enlargement of the paramountcy doctrine functions as an exception to s.88.
d) Treaty exception
• Section 88 of the Indian Act is “subject to the terms of any treaty”. This implies that any inconsistency
between a treaty made with the Indians and a provincial law of general application has to be resolved in
favour of the treaty provisions.
• As per Dick v. The Queen [1985] 2 S.C.R. 309, s.88 is NOT applicable to provincial laws that do not affect
or impact Indianness and thus, “s.88 would not confer on Indian treaties paramountcy over provincial laws
that do not affect Indianness. However…all provincial laws that purport to impair Indian treaty rights, by
virtue of that impairment, affect Indianness. On this basis, the courts have been correct to assume that
s.88 shields Indian treaties from all provincial laws” (Hogg, 28-19).
25
Kruger and Manuel v. The Queen [1978] 1 S.C.R. 104, 110.
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13. ABORIGINAL RIGHTS
Recognition of aboriginal rights
• Section 35 of the Constitution Act, 1982, provides constitutional protection to “the existing aboriginal and
treaty rights of the aboriginal peoples of Canada”.
• “Aboriginal rights that have not been extinguished are recognized by the common law and are enforceable
by the courts” (Hogg, 28-20).
• In Guerin v The Queen (1984) 2 S.C.R. 335, Dickson CJ explained aboriginal title as “a legal right derived
from the Indians’ historic occupation and possession of their tribal lands” (Id., 376). The Court stated that
“the aboriginal title to the land gave rise to a fiduciary duty on the part of the Crown to deal with the
land for the benefit of the surrendering Indians. The Court held that this fiduciary duty had been broken and
awarded damages to the Bands” (Hogg, 28-21).
• Aboriginal rights do subsist at common law; they are enforceable at the suit of Aboriginals.
• R. v. Sparrow held that aboriginal rights, which includes the fiduciary duty, are NOW constitutionally
guaranteed by virtue of s.35 of the Constitution Act 1982
***
R. v. Sparrow [1990] 1 S.C.R. 1075
• Sparrow contended that s.35(1) rights are more securely safeguarded than Charter rights, and therefore
any infringement or violation is automatically of no force or effect, as there is no similar "reasonable
limits" clause as in s. 1 (no Oakes test!)
• The Court, however, states that legislation affecting the exercise of aboriginal rights will be valid if it
meets a test of justification, which arises from the fiduciary relationship (this is similar to the Oakes
test under section 1 of the Charter). The Court laid out the test (two-stage test = parts (3) and (4)):
1) Is there an aboriginal right, i.e., is the activity claimed to be an aboriginal right an element of a practice,
custom or tradition integral to the distinctive culture of the aboriginal group claiming the right? (onus
on claimant)
a) Identify the nature of the claim
b) Determine if it was part of a pre-European contact practice that was integral to the distinctive
culture in question (central, not incidental, but need not be unique)
c) If so, was there sufficient continuity between the modern activity and the traditional practice?
2) If there is an aboriginal right, has it been extinguished? (Onus on Crown)
a) Does the legal regulation demonstrate a “clear and plain” intention to extinguish the right?
3) If the aboriginal right has not been extinguished, can the claimant show a prima facie infringement? (Onus
on claimant)
a) Is the limitation unreasonable?
b) Does it pose undue hardship?
c) Does the regulation deny rights holders the preferred means of exercising their right?
4) Can the government justify the infringement? (Onus on Crown)
a) Is there a valid objective on the part of the Crown?
b) Is the government employing means which are consistent with their fiduciary duty to the aboriginal
nation at issue?
i) Was the infringement as minimal as possible?
ii) Were their claims given priority over other groups?
iii) Was the effected aboriginal group consulted?
iv) If there was expropriation, was there fair compensation?
•
•
Since, there is no Oakes test, for a violation of section 35 rights, the Sparrow test essentially operates
as the equivalent.
NOTE: part 1 and 2 are first establishing an entitlement to the right in the first place; part 3 and 4 relate
to justifying an infringement, similar to s.1 of the Charter (Oakes).
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Definition of aboriginal rights
• Aboriginal rights are rights possessed by aboriginal peoples “by reason of the fact that aboriginal peoples
were once independent, self-governing entities in possession of most of the lands now making up Canada”.
***
R v Van der Peet (1996) 2 S.C.R. 507
Significant Points and Takeaways
• Lamer CJ: “when Europeans arrived in North America, aboriginals were already here, living in
communities on the land and participating in distinctive cultures, as they had done for centuries”
• This fact differentiates aboriginal peoples from other minority groups in the country and elucidates as
to why aboriginal rights obtain a special legal and now constitutional status
• Before this case, the Supreme Court had made no endeavour to define the traits of aboriginal rights.
• The Court only mentioned that aboriginal rights were special and “unique” in nature.
• The Supreme Court articulated in this case the legal test that was to be used to identify an “existing
aboriginal right” within the meaning of s.35 of the Constitution Act 1982: “in order to be an
aboriginal right an activity must be an element of a practice, custom or tradition integral to the
distinctive culture of the aboriginal group asserting the right” (para. 45)
o For a practice to be “integral”, the practice must be “of central significant” to the
aboriginal society: it must be a “defining” characteristic of the society, “one of the
things that made the culture of the society distinctive” (para. 55).
o The practice must have developed before “contact”, that is, “before the arrival of
Europeans in North America” (paras. 60-62).
o A practice that has evolved and progressed into modern forms must trace its origins back to
the pre-contact period. “Contemporary practices that developed “solely as a response to
European influences” do not qualify” (para. 73).
Facts:
• The defendant was an aboriginal; she had been convicted of selling fish she had caught under the
authority of an Indian food-fish license.
• “The licence, which had been issued under the federal Fisheries Act, restricted the holder to fishing
for food; sale of fish caught under the licence was prohibited by regulations made under the Act”
(Hogg, 28-23).
• Question was if the defendant had an aboriginal right to sell fish (for monetary gains or other goods)
Held:
• The Supreme Court held the exchange of fish did happen in the society of the Sto:lo people before
contact with Europeans, however, it was merely incidental to their practice of fishing for food.
• Dissimilar to the practice of fishing for food, the practice of selling fish was not an “integral” part of
the Sto:lo culture (think about the need for sustainability and the environment; selling = over fishing)
• “It was only after contact that the Sto:lo people had begun fishing to supply a market, one created by
European demand for the fish. Therefore, the aboriginal defendant was unsuccessful in establishing
an aboriginal right to sell fish and was properly convicted” (Hogg, 28-23).
•
•
•
•
Van der Peet was followed by R. v. N.T.C. Smokehouse [1996] 2 S.C.R. 672. In N.T.C., the practice of
exchanging fish was not deemed to be central to the culture of aboriginals, so as to qualify as an aboriginal
right.
In the case of R. v. Gladstone 2 S.C.R. 723, the Court held that “the claimed aboriginal right, which was to
sell herring spawn on kelp, was established. The evidence showed that, before contact, the Heiltsuk people
habitually sold large quantities of herring spawn on kelp to other Indian tribes…The trade in herring spawn
on kelp was a central and defining feature of Heiltsuk society” (para .29; Hogg, 28-23, 28-24).
The question of whether a practice or activity that was adopted by Aboriginals purely for survival qualify as
one that is integral and central to a distinctive culture was answered in R. v. Sappier [2006] 2 S.C.R. 686. In
this case, the Court found that harvesting wood for domestic purposes was “integral” to the distinctive
culture of the Maliset and Mi’kmaq people. It was irrelevant that the activity has evolved and developed as
a necessity of survival.
Because the Van der Peet definition of aboriginal rights is premised on the existence of an aboriginal
practice or activity before “contact”, that is prior to the arrival of Europeans, the time frame is not
applicable for Metis rights, as they did not exist prior to contact.
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•
In R. v. Powley [2002] 2 S.C.R. 207, the Court held that the focus on European contact had to be pushed
forward for Metis claimants of aboriginal rights to “the time of effective European control” (para. 18).
***
R v Powley, [2003] 2 SCC 43
• The Court found that in applying the Van der Peet test to determine the Metis’ s.35 rights, the precontact element had to be adjusted and altered to take into account the post-contact ethnogenesis
and evolution of the Metis.
• Aboriginal rights are communal and founded upon the existence of a historic and present
community.
• The perspective that Metis rights have to find their origin or birth in the pre-contact practices of
their aboriginal ancestors was rejected.
Aboriginal self-government
• “The aboriginal right of self-government must exist by virtue of the fact that aboriginal people were living
in self-governing communities before the arrival of Europeans” (Hogg, 28-25).
• In R v Pamajewon (1996) 2 S.C.R. 821, the Court held that gambling did not qualify as an integral part of
the distinctive culture of First Nations. Therefore, they had not aboriginal right to govern or regulate
gambling. The aboriginal right of self-government extends only to activities that took place before
European contact, and to those activities that were an integral part of the aboriginal society.
• In Delgamuukw v British Columbia (1997) 3 S.C.R. 1010, Lamer C.J. held that “land held under aboriginal
title is “held communally” and decisions with respect to the land are “made by that community” AND
aboriginal title “encompasses the right to choose to what uses land can be put” (paras. 115, 166).
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14. ABORIGINAL TITLE
•
•
•
Aboriginal title is the right to the exclusive occupation of land, which enables the aboriginal owners to
utilize the land for a wide array of functions and purposes (B. Slattery).26
In Calder and Guerin, it was acknowledged that aboriginal title survived European settlement and the
assumption of sovereignty by the British Crown. The use and occupation of land by aboriginal people prior
to the presumption of sovereignty established an aboriginal title to the land (i.e. Crown owns the land;
Aboriginals have right to occupy it).
NOTE: The Indian Act states that bands (First Nations) are permitted to utilize and benefit from reserve
lands (s.18(1): subject to this Act, reserves are held by Her Majesty for the use and benefit of the respective
bands for which they were set apart, and subject to this Act and to the terms of any treaty or surrender, the
Governor in Council may determine whether any purpose for which lands in a reserve are used or are to be
used for the use and benefit of the land).
o Therefore, lands that are reserved for Indians are and must remain to be used for the use and
benefit of the band. This use and benefit are for the entire band; it is a collective right; not an
individual right (no individual member has title).
o Legal title to the land always remains with the Crown (Crown holds it in trust); Aboriginals have
the right to use and benefit from the land.
Delgamuukw v British Columbia (1997)
• This was an action by aboriginal people for a declaration that they possessed aboriginal title to a piece of
land in British Columbia.
• “Aboriginal title has its source in the occupation of land by aboriginal people before the Crown assumed
sovereignty over the land. It does not derive from a Crown grant, something that could only take place
after the assumption of sovereignty by the Crown” (Hogg, 28-29).
• Aboriginal title is established, not by demonstrating a chain of title originating in a Crown grant, but by
proving that an aboriginal people occupied the land before sovereignty.
• The mere fact of pre-sovereignty occupation is sufficient and adequate to demonstrate that title to the land
is “of central significance to the culture of the claimants”; thus, the centrality condition of Van der Peet
does not have to be separately established to make out a claim to aboriginal title (para. 151).
• The pre-sovereignty occupation MUST be exclusive. If others utilized the land, then it is mandatory to
prove that the claimants’ first nation had the intention to keep exclusive control and had the power to
exclude others if they elected to.
• The point of time at which aboriginal occupation of the land must be proved to make out aboriginal title
is “PRIOR TO SOVEREIGNTY”, NOT “PRIOR TO CONTACT”.
• “This is a relaxation of the Van der Peet time requirement for the proof of activity-based rights, which is
“prior to contact” because the time of contact is earlier and less certain than the time of the assumption of
Crown sovereignty” (Hogg, 28-30).
• Proof of pre-sovereignty occupation does not entail obeying rigid rules of evidence, as aboriginal
societies did not retain written records at the time of sovereignty. They relied on “oral histories”.
• In Delgamuukw, Lamer CJ emphasized: aboriginal title is sui generis (one of a kind).
• There are a number of critical differences (5) between aboriginal title and non-aboriginal title.
1. The source of aboriginal title derives from pre-sovereignty occupation NOT a post-sovereignty grant
from the Crown.
2. Aboriginal title entitles Aboriginals to exclusive use and occupation of the land; this incorporates the
right to engage in a wide array of activities on the land, and those activities are not confined to those
that have been traditionally or conventionally executed, and are not restrained to those that were
integral to the distinctive culture.
3. The third difference between aboriginal title and non-aboriginal title is that aboriginal title is
inalienable, save and except to the Crown. This implies that the Crown has to act as an intermediary
(middleman) between the aboriginal owners and third parties.
4. Aboriginal title can only be held communally. Individual aboriginal persons cannot hold title; it is a
collective right to land held by all members of an aboriginal nation. Decisions about the land are to
be made by the community.
26
B. Slattery, “The Metamorphosis of Aboriginal Title” (2006) 85 Can. Bar Rev. 255.
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5.
Aboriginal title is constitutionally protected. In 1982, s.35 of the Constitution Act was adopted; the
effect is to grant constitutional protection on any aboriginal title that was “existing” in 1982. This
constitutional protection is not absolute, but it does necessitate that any breach of the right must be
enacted by the competent legislative body (federal) and must fulfill the Sparrow test.
.
***
Tsilhqot’in Nation v British Columbia (2014) SCC 44, [2014] 2 S.C.R. 256
• British Columbia issued a licence to Carrier Lumber to cut trees in an area that included land that was
claimed by the Xeni Gwet’in band of the Tsilhqot'in. The Tsilhqot'in people who had lived in the area for
centuries. The Xeni Gwet'in blockaded the area, preventing Carrier from logging.
• The company conducted unsuccessful negotiations with the provincial government to continue logging.
• The Xeni Gwet'in sought a court declaration that would prevent and ban Carrier Lumber's commercial
logging operations in this area, and establish their claim for Aboriginal title to the land, which was part
of their historic territory
Held:
• The Supreme Court ruled the Tsilhqot'in did have a claim of Aboriginal title to the 1,750 square
kilometers area they had historically and traditionally occupied.
• The Court held that “Aboriginal title constitutes a beneficial interest in the land, the underlying control
of which is retained by the Crown. Rights conferred by Aboriginal title include the right to decide
how the land will be used; to enjoy, occupy and possess the land; and to proactively use and
manage the land, including its natural resources”.
• Nonetheless, the Court set out a Sparrow-style device by which the Crown may override Aboriginal title
in the public interest:
1. The Crown must have executed consultation and accommodation;
2. The Crown's actions must have been supported by a compelling and substantial objective; and
3. The Crown's action must have been consistent and aligned with its fiduciary duty to the Aboriginal
body in question.
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15. TREATY RIGHTS
•
•
•
•
Treaty rights relate to contracts (written or oral) made between the government and Aboriginal people.
“Since 1982, Indian treaty rights have been protected by s.35 of the Constitution Act, 1982 from derogation
by either federal or provincial law” (Hogg, 28-34)
S.35 expressly incorporates rights obtained under modern land claims agreements in its protected treaty
rights. Thus, as land claims settlements are ratified, they obtain constitutional status.
i.e., Robinson Superior Treaty (1850) allowed beneficiaries of the treaty (Aboriginals) to hunt and fish on
unoccupied land.
Definition of Treaty
• An Indian treaty has been labelled as “unique” or “sui generis” (Simon v. The Queen [1985] 2 S.C.R. 387).
• It is not a treaty at international law or a contract and thus not subject to either international or contract law.
• “It is an agreement between the Crown and an aboriginal nation with the following characteristic”27:
1) Parties: the parties to the treaty must be the Crown and an aboriginal nation
2) Agency: the signatories to the treaty must have the authority to bind their principals, namely, the
Crown and the aboriginal nation
3) Intention to create legal relations: the parties must intend to create legally binding obligations
4) Consideration: obligations must be assumed by both sides, so that the agreement is a bargain
5) Formality: there must be a “certain measure of solemnity”
• The foregoing characteristics are from two leading cases on the meaning of a treaty: Simon v The Queen
(1985) and R v Sioui (1990).
• The surrender of aboriginal rights is NOT a requisite of a valid treaty. NOR does the treaty have to be
related to territory; it could be “an agreement about political or social rights” (Id., 1043).
• “In each case, however, there was consideration moving from the Indian side, namely, a promise to cease
hostilities. Indians had made a bargain and Crown should be held to its side of the bargain” (Hogg, 28-37).
Interpretation of treaty rights
• The rule for interpretation of treaties between the Crown and aboriginal nations is that they “should be
literally construed and doubtful expressions resolved in favour of the Indians” (R. v. Sundown [1999]).
• The primary justification for this rule is the imbalanced bargaining power of the Crown and the aboriginal
people.
***
R v Marshall (Marshall 1, 1999) 3 S.C.R. 456
• The question in this case was if a Mi’kmaq Indian, who had been charged with fishing for eels and selling
eels without a licence, had a treaty right to catch and sell eels.
• The treaty that was applicable was a concise “peace and friendship” treaty entered into in 1760 between
British Governor of Nova Scotia and the Mi’kmaq chief
• The treaty did not mention anything explicitly about fishing and in terms of trade said only that the Indians
would no longer trade “any commodities in any manner” except with the managers of “truck houses”
established by the Governor.
Held:
• The Court found the clause should be interpreted as granting a right to hunt, fish and gather, as it is only
by these means that the Indians be in a position to bring “commodities” to truck house.
• The clause should also be interpreted as conferring a right to trade the products of hunting, fishing
and gathering sufficiently to make “a moderate livelihood” (Hogg 28-38, 28-39)
• After the elimination of truck houses, the right to trade continued; the Court explained this as “a mere
disappearance of the mechanism created to facilitate the right” (para. 54).
• The defendant’s rights to “moderate” fishing and trading were treaty rights within the meaning of s.35
• These rights triumphed the statutory licensing regime the defendant did not obey.
• As such, the treaty shielded the defendant’s activity and he was entitled to be acquitted of the charges.
Marshall 2 (1999) 3 S.C.R. 533
• In response to an application for a rehearing, the court in Marshall issued a second set of justifications,
27
The list of characteristics is from Hogg, 28-36. He extrapolated them from Simon v. The Queen (1985) and R v. Sioui (1990).
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clarifying and perhaps confining its earlier reason, but not changing the decision of the ratio decidendi,
which was that the truck house clause conferred a modern right to hunt, fish and gather the things that in
1760 were to be traded at the truck house.
Relying on this principle, the Mi’kmaq Indians started commercial logging operations on Crown lands
without the permission mandated by statute in each province.
They were charged with offending the forest management laws of the two provinces and invoked the truck
house clause in defence.
Their ancestors used wood in 1760 as firewood, and to build and create a wide array of things, such as
buildings, canoes, snowshoes and baskets. The things that they made of wood were occasionally traded
Logging they argued was simply a modern use of the same products and was therefore protected.
Marshall 3 (2005) 2 S.C.R. 220
• The Supreme Court rejected this argument. While modern eel fishing was the logical evolution of a
traditional trading activity, as decided in Marshall 1, the same reasoning could not be applied here.
• “Logging (UNLIKE EEL) was NOT a traditional Mi’kmaq activity in 1760. And, while treaty rights are
not frozen in time, modern logging activity could not be characterized as the natural evolution of the
minor trade in wood products that took place at the time of the treaty” (Hogg, 28-39)
• Thus, the Mi’kmaq defendants had no treaty right to cut down trees for commercial purposes without a
licence.
Extinguishment of treaty rights
• Treaty rights are capable of extinguishment in the same manner as aboriginal rights – voluntary surrender to
the Crown or by constitutional amendment
• Also, a treaty can be amended or repealed as contemplated if it makes provision for its own amendment or
repeal. Moreover, it is probable that treaty rights would be voidable if a fundamental breach occurred.
How the Constitution Act, 1982 protects Aboriginal and Treaty Rights:
• Section 35 provides that “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are
hereby recognized and affirmed”
• Section 25 holds that the Charter of Rights is not to be interpreted as derogating from “aboriginal, treaty or
other rights or freedoms that pertain to the aboriginal peoples of Canada”
o Thus, the equality guarantee in s.15 of the Charter does not nullify aboriginal or treaty rights.
• S.35.1 asserts constitutional modifications to “the native rights provisions of the Constitution Acts, 1867
and 1982 that directly apply to aboriginal peoples will NOT BE MADE without a prior constitutional
conference involving participation by representatives of the aboriginal peoples of Canada” (Hogg, 28-42).
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16. DUTY TO CONSULT
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S.35 imposes on government the obligation to engage in various processes and procedures even before an
aboriginal and treaty right is established.
S.35 offers constitutional protection to a special and unique relationship between the Crown and aboriginal
people under which the honour of the Crown must oversee and govern all dealings.
What does the honour of the Crown entail? It involves a duty and responsibility to negotiate aboriginal
claims with First Nations. This duty, to consult, negotiate and accommodate, was established in Haida:
***
Haida Nation v British Columbia (2004)
• The British Columbia government had issued a licence to the Weyerhaeuser Company permitting it
to cut trees on provincial Crown land. This Crown land was traditional homeland of the Haida people
• The cutting of trees on the claimed land would deprive the Haida people of some of the benefit of
their land if and when their title was established.
Held:
• The Supreme Court held that s.35 compelled the Crown to consult with the Haida people and if
required, accommodate their concerns.
• The extent of consultation and accommodation is “proportionate to a preliminary assessment of the
strength of the case supporting the existence of the right or title, and to the seriousness of the
potentially adverse effect upon the right or title claimed” (para. 39).
• In this case, a preliminary assessment indicated there was a prima facie case for aboriginal title and a
strong prima facie case for an aboriginal right to harvest the red cedar growing on the Islands.
• Because British Columbia was aware of the Haida claim at the time of issuing the licence, it had an
obligation to consult with the Haida prior to issuing the licence. The Crown did not execute this step
and as such was in breach of s.35. Consequently, the licence was invalid.
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“The duty to consult will lead to a duty to accommodate where the consultations indicate that the Crown
should modify its proposed action in order to accommodate aboriginal concerns” (Hogg, 28-53).
It is the Crown in right of Canada (federal government), NOT, the Crown in right of a province, that is, the
provincial government, that has the chief obligation and duty for aboriginal affairs (i.e., “Indians and lands
reserved for the Indians” in s. 91(24)).
o But in the Haida case, provincial Crown land was involved, and it was the action of the provincial
government in licensing the cutting of trees that potentially impacted the value of the claim.
o The Court found the public lands of the province were subject to aboriginal interests and thus, the
duty to consult would be extended to the Crown in right of the province.
Who determines and assesses if the Crown’s consultation and accommodation are adequate in the unique
circumstances of any given case? In Haida Nation, the Court held that the Crown’s actions were reviewable
by the courts via the general principles of judicial review.
Mikisew Cree First Nation v Canada (2005) 3 S.C.R. 388
• Federal government proposed to build a road in a national park on federal Crown land in Alberta.
• The road would pass the traditional hunting grounds of the Mikisew Crew First Nation.
• Under Treaty 8, the aboriginal people who lived in the territory had surrendered the entire area to the
federal Crown. In exchange, the Aboriginal people were promised reserves and other advantages.
• Treaty 8 granted to the aboriginal signatories the right to hunt, trap and fish on the surrendered
territory “saving and excepting such tracts as may be required or taken up from time to time for
settlement, mining, lumbering, trading or other purposes”
Held:
• The Supreme Court held “treaty making is an important stage in the long process of reconciliation,
but it is only a stage”; Treaty 8 was “not the complete discharge of the duty arising from the honour
of the Crown” (para. 54).
• In circumstances where the exercise and execution of treaty rights by the Crown could have an
“adverse impact” on aboriginal people, the honour of the Crown mandated consultation with those
who would be affected.
• The discussions that had occurred between park officials and the Mikisew Crew were not adequate or
sufficient to fulfill the duties.
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IV.
THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
17. INTERPRETING THE CHARTER OF RIGHTS AND FREEDOMS
Note: Remember, the Charter of Rights is part of Constitution of Canada! Thus, it can only be altered or amended by
constitutional amendment (usually section 38).
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The Charter limited and constricted the powers of the federal Parliament and provincial Legislatures.
It supplies a set of uniform national standards for protection of civil liberties
Simply put, the Charter protects the rights of freedoms of people in Canada. If the provincial or federal
government enact a law that violates a Charter right, then a citizen can bring a Charter claim contending that
the law infringes his or her Charter rights and is contrary to the Constitution.
The major and primary impact of the Charter has been an enlargement of judicial review.
The Charter adds novel constitutional provisions that will invalidate inconsistent laws.
Prior to 1982, judicial review in Canada was mainly confined to federalism grounds (i.e., division of
powers), however, since 1982, judicial review can also be premised on Charter grounds.
Role of section 1
• Section 1 of the Charter permits the courts to balance and weigh the guaranteed rights against competing
societal values
• Section 1: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set
out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society”
• Section 1 tells us that a law limiting or restricting a Charter right is valid, and thus will be upheld, if the law
is a “reasonable” one that “can be demonstrably justified in a free and democratic society”
• When a law is struck down on Charter grounds, it has failed (or not passed) the requirement of justification
under s.1 (i.e., law is not saved)
Due to section 1, judicial review under the Charter of Rights involves two-stages:
1) The first stage of judicial review is to assess if the impugned law derogates from a Charter right. If it does
not, then the review end here and the law must be upheld. However, if the law is held to deviate or derogate
from a Charter right, then the review will continue to the second stage.
2) The second stage is to establish if the law is justified under s.1 as a “reasonable limit prescribed by law that
can be demonstrably justified in a free and democratic society”. The reviewing court must determine if the
law should be upheld in spite of the fact that it limits or restricts a Charter right.
Role of s.33
• The Charter incorporates, by virtue of s.33, an override power, which allows the Parliament or a Legislature
to enact a law that will override the guarantees in s.2 and ss.7 to 15 of the Charter.
• All that is needed is the enactment of a law comprising of an express declaration that the law is to operate
NOTWITHSTANDING the relevant provision of the Charter.
• Once this declaration has been enacted, the law that it protects will not be touched by the overridden
provision of the Charter. This override power extends to s.2 (expression), ss.7 to 14 (legal rights) and s.15
(equality). It does not extend to ss. 3-5 (democratic rights), s.6 (mobility), ss.16 to 23 (language rights), or
s.28 (sexual equality)” (Hogg, 36-11).
Characterization of Laws
Comparison with federal review
• Under the Charter of Rights two-stage process of judicial review, the first step is to assess and decide if the
challenged law abridges a Charter right. If it does, then the next stage is to determine if the law can be
justified under s.1 (Oakes test)
• In the first stage, there are two related issues that must be settled: (1) One is the characterization of the
impugned law (law in question) and (2) the other is the meaning of the asserted right
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The first matter mandates an analysis of the purpose or effect of the challenged law to assess if it
in fact limits a Charter right
o The second issue necessitates an interpretation of the language of the Charter of Rights to
establish if it has been abridged by the impugned law
RECALL: Federalism characterization is different. In terms of characterization of laws for purpose of
federalism review, the courts determine the “matter” (or pith and substance) of a challenged law; then they
determine if that matter comes within one of the classes of subjects (heads of power) that are conferred
upon the enacting legislative body
“The characterization of laws for the purpose of Charter review reflects a similarity and difference between
Charter review and federalism review. If in reviewing the PURPOSE of the law, it is clear that it abridges or
curtails a Charter right, then the law will be unconstitutional” (Hogg, 36-22).
The rule is comparable to the federalism rule that attacks a law with the purpose of regulating matters
falling outside the jurisdiction of the enacting body.
The legal consequence in terms of the effect of a law is the real distinction between Charter review and
federalism review. If the impact of a law abridges a Charter right, then the law will be unconstitutional,
unless it can be saved by the s.1 Oakes test.
This rule is essentially the opposite of the federalism rule which accepts effects on matters outside the
jurisdiction of the enacting legislative body. Think about the double aspect doctrine we discussed, or
incidental affect. With Charter infringements, incidental impact is not okay – you can’t accidentally or
incidentally infringe a Charter right.
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Purpose or effect
• A law will violate the Charter if either its purpose or its effect is to abridge or curtail a Charter Right
• In R. v. Big M. Drug Mart [1985] 1 S.C.R. 295, the Court held the federal Lord’s Day Act violated
(abridged) s. 2(a) of the Charter, freedom of religion. Having one uniform day off according to one religion
(Christianity) was a breach of other individuals’ religions and forced everyone else to follow the rules of
that single religion. “It was not necessary to consider whether the effect of the legislation was to abridge
freedom of religion, because “effects can never be relied upon to save legislation with an invalid purpose.
Moreover, legislation with an invalid purpose could not be justified under s.1” (Hogg, 36-23).
• In R. v. Edwards Books and Art [1986] 2 S.C.R. 713, the Court found the purpose of the Sunday-closing
provincial law was a secular one (uniform pause day for workers). But the Court considered the effect and
impact of the law. It found that the effect of the law was to inflict a burden on retail stores who held a
religious belief that differed from that of Christianity (you had to close on Sunday because the law and then
also perhaps another day due to your religion). This effect abridged section 2(a) of the Charter.
Trivial effects
• In R. v. Jones [1986] 2 S.C.R. 284, freedom of religion was in issue. The Court held that the Alberta’s
School Act DID NOT breach freedom of religion because the effect of the law on the Charter right of
religion was “trivial or insubstantial” (Id., 314).
Severance
• In R v Big M Drug Mart (1985), the entire Lord’s Day Act was held to be unconstitutional due to its
religious purpose.
• This is the only Charter case where the entire statute was struck down. In similar cases, the provisions that
were in breach were “severed” from the remainder of the statute, enabling the rest of the statute to survive
Reading down
• If a statute can be interpreted in two ways and one way would abridge a Charter right, and the other would
not, then the interpretation that does not abridge the Charter right should be selected.
Interpretation of Charter
Progressive Interpretation
• A constitution is different from an ordinary statute. A constitution is expressed in words and text necessarily
wide-ranging and expansive in order to accommodate a large and unpredictable range of facts. A
constitution is challenging to amend. A constitution is likely to stay in force for a prolonged period of time.
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All this insinuates a strong need for flexible interpretation, so that the constitution can be adapted to the
changes in society and evolution overall.
In Edwards v. A.-G. Can. [1930] 1 S.C.R. 295, Lord Sankey’s used an analogy to explain the progressive
interpretation doctrine: a living tree capable of growth and expansion within its natural limits”.
Generous Interpretation
• “For Lord Sankey in Edwards v AG Can., the primary implication of his living tree metaphor was that a
constitution should receive a generous interpretation. He went on to say the provisions of Constitution
should not be “cut down” by “a narrow and technical construction “but should be given “a large and liberal
interpretation” (Hogg, 36-27).
• Judges are making reference to the scope of guaranteed rights in the Charter when they speak of a generous
or broad interpretation of the Charter.
• Of course, there is a second stage to judicial review under the Charter; this is the section 1, Oakes test. We
will discuss the Oakes test in greater detail in a later section in the notes.
Purposive Interpretation
• “A “purposive interpretation” implicates an endeavour to determine the purpose of each Charter right, and
then to interpret the right in a way “so as to include activity that comes within the purpose and exclude
activity that does not. The actual purpose of a right is unknown and so a court has a great deal of discretion
in deciding what the purpose is and at what level of generality it should be expressed” (Hogg, 36-30).
Hierarchy of rights
• By virtue of s. 33, the Charter allows for the override of some rights; this is done by the inclusion of a
notwithstanding clause in the overriding statute.
• The rights that can be overridden and cannot be overridden were discussed earlier on page 73.
• Consequently, s. 33 creates two tiers of right: the “common rights” that can be overridden, and the
“privileged rights” which cannot.
• Aboriginal and treaty rights (s.35) are comparably privileged in that they are subject neither to s.1 nor s.33.
This is due to the fact that s.35 is outside the Charter of Rights. However, being outside Charter is not
entirely advantageous, as it means that s.24 does not offer a remedy for breach of aboriginal or treaty rights
(Hogg, 36-33).
Priority between federal and Charter grounds
“When a law is challenged on both federal and Charter grounds, it is the federal ground that is more
fundamental of the two and that ought to take priority over the Charter ground” (Hogg).
Undeclared Rights
26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the
existence of any other rights or freedoms that exist in Canada
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The purpose of section 26 is to provide caution and make transparent that the Charter is not to be
interpretated as removing any existing “undeclared” rights or freedoms.
Section 26 does not include these undeclared rights and freedoms into the language of Charter.
They are different from the rights and freedoms guaranteed in the Charter because, “as creatures of common
law or statute, the undeclared rights can be altered or abolished by the action of the competent legislative
body. Also, the remedy under s.24 is not available for their enforcement” (Hogg, 36-47).
END OF CHAPTER QUESTIONS:
1. What is the difference of the characterization analysis when it is applied to federalism cases versus Charter
cases?
2. Explain the phases of the Charter analysis in your own words.
3. The provincial government has enacted the following law: “To work at a bank, an employee must be able to
carry a minimum of 50 pounds”. Is this law invalid?
4. What is the “living tree” doctrine? How does it apply to the Charter?
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18. APPLICATION OF THE CHARTER OF RIGHTS AND FREEDOMS
Benefit of Rights
‘Everyone, anyone, any person’
• Sections 2, 7, 8, 9, 10, 12 and 17 of the Charter open with the text, “Everyone has the right”.
• In ss.11 and 19, “any person”; s.20 uses “any member of the public”, and s.24 uses “anyone”.
• Despite the fact that some of the rights are guaranteed to “everyone” or “any person”, they are not available
to a corporation. For example, the right to “freedom of conscience and religion” in s. 2(a) is not applicable
to a corporation, as a corporation cannot have a religious belief since it is an abstract entity.
• Section 24 is available to “Anyone” and this consists of a corporation.
• However, it is erroneous to presume that a corporation is not capable of ever invoking a right that does not
apply to a corporation. In R. v. Big M Drug Mart, the Court held a corporation was able to invoke section
2(a), right to freedom of religion, as a defence to a criminal charge.
• In Singh v Minister of Employment and Immigration (1985) 1 S.C.R. 177, the Court held anyone who
entered Canada, even if illegally, was automatically entitled to assert s.7 rights, which apply to “everyone”.
NOTE:
• While corporations can rely on some Charter rights and freedoms, there are others that only apply to human
beings. A corporation cannot invoke the right to life, liberty and security of the person, the right to equal
treatment before and under the law, the right to freedom of religion, and the right to live free from
discrimination. However, if a corporation is defending itself, it is permitted to raise any Charter argument it
wants to show the law is unconstitutional. The corporation is not claiming it has a right or freedom; rather,
it is claiming the law cannot stand, as it violates or breaches the Charter and as such, has no force or effect.
Individual
• Equality rights, by virtue of section 15, are conferred on “every individual”.
• The word “individual” was substituted for “everyone” to “make it clear that this right would apply to natural
persons only” (Gibson, The Law of the Charter: Equality Rights (1990), 53-55).
• The reference in section 15 to “discrimination based on race, national or ethnic origin, colour, religion, sex,
age or mental or physical disability” bolsters the exclusion of corporations because the enumerated
characteristics are all personal traits of human beings
• Nonetheless, “even if s.15 does not extend to corporations, corporations will still be able to rely on it as a
defence to a criminal charge laid under a law that is invalid by virtue of unconstitutional discrimination
against individuals” (Hogg, 37-5). Recall: Big M Drug Mart
Citizen
• Usually, a person does not need to be a Canadian citizen to invoke Charter rights.
• “Everyone” in s.7 consists of “every human being who is physically present in Canada and by virtue of such
presence amenable to Canadian law” (Singh v Minr. of Emplt. And Immig. [1985] 1 S.C.R. 177)
• Even those individuals who have come into Canada illegally are entitled to the majority of the Charter rights
simply as a result of their presence on Canadian land (R. v. A. [1990] 1 S.C.R. 995).
• Citizenship is a mandated condition for some rights (i.e., voting rights (s.3); mobility rights (s.6); minority
language educational rights (s.23)) are conferred upon a “citizen”)
Permanent resident
• The mobility rights of s. 6(2) (not s. 6(1)) are applicable to both “every citizen” AND “every person who
has the status of a permanent resident of Canada”. “Permanent resident”- technical term in immigration law:
a person who has been officially admitted to Canada as a permanent resident, but who has not taken out
Canadian citizenship.
Burden of Rights
a) Both levels of government
32. (1) This Charter applies: (a) To the Parliament and government of Canada in respect of all matters within the
authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
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(b) To the legislature and government of each province in respect of all matters within the authority of the legislature
of each province.
• Section 32(1) explicitly states the Charter applies to “the Parliament and government of Canada” and to the
“legislature and government of each province”
• Therefore, the Charter binds both levels of government.
• Recall: Canadian Bill of Rights applied (and still applies) only to the federal government.
b) Parliament or Legislature
• By referring to s “Parliament” and a “legislature”, it is obvious that the Charter functions as a limitation on
the powers of these legislative bodies. Any statute or piece of legislation that is enacted by either which is
conflicting with the Charter will be ultra vires the enacting body and as such, will be invalid.
• The word “Parliament” means the federal legislative body.
• The word “Legislature” means the provincial legislative body
• Usually, the Charter does not inflict positive obligations to act on legislative bodies or government.
c) Statutory authority
• The Parliament and Legislatures have lost power to pass laws that conflict with Charter by virtue of s.32.
• Any body executing statutory authority (i.e., Lieutenant Governor in Council, ministers, officials, etc.) is
also bound by the Charter.
• The unique trait of action taken under statutory authority is that it consists of a power of compulsion that is
not held or obtained by a private individual or organization. Therefore, the Charter DOES NOT apply to
private bodies (this is the default position).
• “Where the Parliament or a Legislature has delegated a power of compulsion to a body or person, the
Charter will apply to the delegate” (Hogg, 37-14).
• For instance, the Court held that the Charter applied to a municipal-by law, created under statutory authority
(Ramsden v. Peterborough [1993] 2 S.C.R. 1084.
***
Greater Vancouver Transportation Authority v Canadian Federation of Students [2009] SCR 31
• The Canadian Federation of students was refused being able to place advertisements on buses.
• They made challenge under s.2 (everyone has the fundamental freedoms: of conscience and religion;
thought, belief, opinion and expression; peaceful assembly; association)
• Are transit corporations (private companies) operating public transportation systems actors under the
Charter? Note: When a government exercises or executes “substantial control” over an entity, that entity
may come under Charter scrutiny (ratio)
Held:
• At para [16], The Court held, “there are two ways to determine whether the Charter applies to an entity’s
activities: by enquiring into the nature of the entity or by enquiring into the nature of its activities. If the
entity is found to be “government”, either because of its very nature or because the government exercises
substantial control over it, all its activities will be subject to the Charter. If an entity is not itself a
government entity but nevertheless performs governmental activities, only those activities which can be
said to be governmental in nature will be subject to the Charter”.
• The Court held the Charter applied to the “policy” of a local transit authority banning political messages
on the sides of its buses.
• The transit authority was controlled by a local government and thus came within “government” in s.32.
• With respect, the application of the Charter followed from the transit authority’s statutory power to
regulate advertising on buses.
• CONSISTENT WITH PRINCIPLE: Government should not be able to shirk or reduce its Charter
responsibilities by conferring powers onto another entity.
• Takeaway: busing transportation has a massive public element – public transportation – and the
government plays a large role. If there are governmental aspects, then the Charter will apply (even if it is
traditionally seen as a private entity).
•
Outside of sphere of government, Charter will apply only to persons/bodies exercising statutory authority. If
a statute applies in some manner to a body that is private in nature, then the Charter will apply. It is all
about whether there is a governmental aspect or whether there is a public element.
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It must be noted, however, that the courts have, irregularly, diverged from this position:
In Eldridge it was held the Charter applied in spite of the fact there was an absence of any power of
compulsion. In two other cases (Bhindi and Lavigne), it was held the Charter did not apply, despite the
existence of a power of compulsion.
***
Eldridge v British Columbia (1997) 3 S.C.R. 624
• The main issue in this case was if a hospital was subject to the Charter.
• The hospital failed to provide sign-language interpretation for deaf people. This type of omission, if it
was done by a body that was subject to the Charter, would be a violation of s.15 (equality guarantee).
• In an earlier case, Stoffman v Vancouver General Hospital (1990) 3 S.C.R. 483, the Charter was held
not to apply to the compulsory retirement policy of a hospital. The hospital was established and
empowered by statute, and obviously performing a public service. However, it did not exercise or
execute any powers of compulsion in providing medical services. The hospital was not controlled by
the government. As such, the hospital was not bound by the Charter prima facie
• However, in Eldridge, the Supreme Court looked to British Columbia’s Hospital Services Act. This
Act funded the provision of hospital services. The court held that the hospital was “implementing a
specific government policy or program” (para. 43).
• This was distinguishable from Stoffman, as “Stoffman only decided the Charter did NOT APPLY to the
“day-to-day operations” of the hospitals; Stoffman did not decide what the position was when a
hospital was implementing a specific government policy or program.
• Hogg believed the distinction was weak, “since the only reason for the day-to-day operations of the
hospital and in particular for the employment of doctors, was to perform the medical services that the
Court in Eldridge characterizes as the implementation of a specific government policy or program”
(Hogg, 37-16).
• Peter Hogg: “Eldridge is inconsistent with Stoffman, and the absence of statutory compulsion should
have led to the conclusion that the Charter DID NOT APPLY in Eldridge” (37-16).
• This case demonstrates a progression towards the Charter being applicable in wider circumstances.
Lavigne v OPSEU (1991) 2 S.C.R. 211
• The Supreme Court of Canada had to determine if an “agency-shop” clause in a collective agreement
breach section 2 of the Charter, the guarantees of freedom of expression and association
• In an agency shop, all employees are not mandated to become members of the union, but they all must
pay dues to the union
• The Supreme Court held the Charter was applicable due to the fact that the employer was an agent of
the provincial government; this in turn, made the collective agreement a governmental act.
d) Government
• What is encompassed in the term “government”?
• Clearly, it incorporates action executed by the “Governor General in Council or the Lieutenant Governor in
Council, by the cabinet, individual ministers and by public servants within the departments of government.
Also included are those Crown corporations and public agencies that are outside the formal departmental
structure, but which, by virtue of a substantial degree of ministerial control, are deemed to be “agents” of
the Crown” (Hogg, 37-18.1-37-19).
• An approach to determining what falls within the scope of government is the control test. To determine if a
pubic body is covered by the Charter, the control test searches for an institutional or structural link.
• There exists no principled manner in which to categorize the functions and operations of public bodies into
“government” (“public”) and “commercial” (“private”) groupings.
• The most helpful inquiry is to ask if the government has assumed control of the function. If the answer is
yes, then the function is one of government (Charter is applicable)
e) Courts
• Does the Charter apply to the courts? The Supreme Court settled on the response of “yes”.
• The NO answer was in Retail, Wholesale and Department Store Union v Dolphin Delivery (1986) 2
S.C.R. 573, where the issue was if Dolphin Delivery could get an injunction to stop a union from picketing
on their property. The Court put the injunction aside as it violated section 2 of the Charter, freedom of
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expression. The Court held that a “court order” did not constitute governmental action and as such, was not
subject to the Charter.
The YES answer came from R v Rahey (1987) 1 S.C.R. 588, where the Supreme Court held that a delay in
reaching a verdict in a criminal trial violated section 11(b) of the Charter.
The YES position was confirmed in British Columbia Government Employees’ Union [1988] 2 S.C.R.
214. Here, a union picketed outside of a courthouse. The Court refused to set aside the injunction.
British Columbia Government Employees’ Union v British Columbia (1988)
• A union had formed picket lines outside the courts in British Columbia
Held:
• The Supreme Court refused to set aside the injunction. The Court found the injunction did restrict the
freedom of expression (so Charter did apply), however, this limit was justified under s.1.
• Dickson CJ referred to the case, “Dolphin Delivery, distinguishing it on the basis that the injunction
in that case was issued to resolve “a purely private dispute”. In this case, the court’s motivation was
wholly ‘public’ in nature.
f) Common law
• The question of whether the Charter is applicable to the common law is closely aligned the question as to
whether the Charter applies to the courts because it is the courts who create or make the common law.
• In Dolphin Delivery, the Court made clear the Charter had NO application to the common law; at the very
least it was not applicable to common law rules that governed or regulated private party relationships.
• “In Canada, the exclusion of the common law from Charter review makes it necessary to determine the
source of any law that is claimed to abridge a Charter right. If the applicable law is a rule of the common
law, the Charter DOES NOT apply. If, however, the law is a rule of statute law, the Charter DOES apply:
the statute supplies the needed element of governmental action” (Hogg, 37-24).
Pepsi-Cola Canada Beverages v RWDSU (2002) 1 S.C.R. 156
• A union picketed its employer, Pepsi-Cola, not only at the factory but also at secondary locations.
Pepsi-Cola got an injunction against the secondary sites.
• The altercation was between private parties and was regulated by the common law; consequently, the
Charter was not directly applicable.
• However, the Court stated it obtained the power to “develop” the common law in order to align it and
make it consistent with “Charter values” (paras. 18-20).
• The picketing was peaceful and did not commit any tort
• The Supreme Court found picketing could be banned only if it involved commission of a wrongful
act. Here, no wrongful act or conduct was involved.
g) Private Action
• The Charter applies only if and where there has been governmental action of some sort – action or conduct
by the Parliament or government of Canada or by the Legislature or government or a province.
• “The rights guaranteed by the Charter take effect only as restrictions on the power of government over the
persons entitled to the rights. The Charter regulates the relations between government and private persons,
but IT DOES NOT regulate the relations between private persons and private persons” (Hogg, 37-29)
• The Charter DOES NOT apply to private action (RWDSU v. Dolphin Delivery [1986] 2 S.C.R. 573).
R v Buhay (2003) 1 S.C.R. 631
• Two security guards smelled marijuana coming from a rented locker. They found drugs inside and
called the police, who then searched the locker.
• The Supreme Court held that the initial opening of the locker by the security guards did not fall under a
search within the meaning of s.8 of the Charter (the guarantee against unreasonable search and
seizure).
• Security guards were private actors and as such, “were not subject to government control” (para. 28).
• However, the opening of the locker by the police was different category, as this involved state action.
Because the police did not have a warrant, the search and seizure were unreasonable; breach of s.8
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•
•
A great deal of “private” activity has been regulated by statute or has been joined by government; if this is
the case (i.e. there is a governmental element), the statutory or governmental presence will make the Charter
applicable
Courts will use the remedy of “extension” to expand the reach of a statute or piece of legislation that the
Court holds to be “under-inclusive”. Thus, to attract Charter applicability, the Courts might sever or read in
language to ensure the statute adds the exempt class or group.
h) Extraterritorial application
• The Charter does not bind foreign governments; thus, their actions cannot be violations of the Charter.
• Because extradition is a deprivation of liberty in Canada, s.7 of the Charter applies. It is a violation of the
principles of fundamental justice under s.7 if a fugitive were to be extradited to a country or state where he
may be treated in a manner that “shocks the conscience” (Can. V. Schmidt [1987] 1 S.C.R. 500, 522).
• In Suresh v Canada (2002) 1 S.C.R. 3, the issue was if it would be a breach of section 7 to deport from
Canada an individual who had a high likelihood of facing torture in the return country. The Supreme Court
held that deportation was not materially or substantially dissimilar from extradition and held that “a
deportation to face torture would usually be a breach of the principles of fundamental justice” (para 58).
• In R. v. Cook [1998] 2 S.C.R. 597, two police from Canada went to the United States to interrogate the
accused. The Court held that the Charter did apply to the interrogation despite it took place in the United
States. The interrogation was executed by Canadian police officers. Cook was the first time the Supreme
Court gave direct extraterritorial effect to the Charter by virtue of applying it to conduct executed and
carried out outside Canada by Canadian government actors.
• However, nine years later, this case was overruled by R. v. Hape [2007] 2 S.C.R. 292. Here, the Court held
that the Charter did not apply to actions taken by Canadian actors outside Canada, ONLY to actions
executed by Canadian actors within Canada. At para. 85, LeBel J. stated, ““Since extraterritorial
enforcement of Canadian law is not possible and enforcement is necessary for the Charter to apply,
extraterritorial application of the Charter is impossible”.
• Less than a year later, the Supreme Court decided Canada v. Khadr [2008] S.C.R. 125, another
extraterritorial case. In this case, the Court did not apply Hape and instead held that the Charter obtained
extraterritorial effect. This was an exception – Canada was in violation of its international obligations.
END OF CHAPTER QUESTIONS:
1. Julia works at a private company. The company has enforced a new rule, which mandates that all employees
need to stand at their desks and can only sit during break-time. Julia is pregnant; she believes that this new
rule indirectly discriminates against her. Can Julia bring a Charter claim?
2. Dan owns a logistics company and Darren owns a trucking company. Logistics are regulated via statute.
They enter a dispute as Dan’s logistics company refuses to allow truckers from Darren’s company to pick
up packages if they do not speak English. Can a Charter claim be brought?
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19. OVERRIDE OF RIGHTS
Section 33
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature,
as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2
or section 7 to 15 of this Charter.
(2) An Act or provision of an Act in respect of which a declaration made under this section is in effect shall have
such operation as it would have but for the provision of this Charter referred to in the declaration
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such
earlier date as may be specified in the declaration.
(4) Parliament or a legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of re-enactment made under sub-section (4).
• Section 33 permits the Parliament or a Legislature to “override” s.2 or ss.7 to 15 of the Charter.
• By virtue of this override power, the Parliament or Legislature is allowed to enact and pass a statute
restricting or eliminating one or more of the rights and freedoms guaranteed by s.2 or ss.7 to 15.
Rights that may be overridden
• Section 33 does not have the ability to override all the Charter rights; it only applies to s.2 and ss.7 to 15 of
the Charter (fundamental freedoms (s.2), legal rights (ss.7 to 14) and equality rights (s.15)).
• It does not encompass the democratic rights (ss.3 to 5), the mobility rights (s.6), the language rights (ss.16
to 23), the enforcement provision (s.24) or the sexual equality clause (s.28)
• The declaration must refer precisely to the Charter provision that is to be overridden for s.33 to have effect.
Five-year limit
• There is a temporal limitation on the s.33 override power. S. 33(3) is a sunset provision which means an
express declaration will automatically expire after five years.
• Section 33(4) enables the explicit declaration to be re-enacted, but the re-enacted declaration will also be
subject to the five-year expiry rule (s. 33(5)).
• Function of this clause is to compel reassessment by the Parliament or Legislature of exercising the power.
Specificity of Declaration
• Section 33 necessitates Parliament or Legislature to “expressly” declare that a statute is to operate and
function despite (notwithstanding) a Charter right
• “The exercise of the override power must therefore be express. It is not to be inferred by implication from
the fact that a particular statute has been enacted in violation of the Charter. The express declaration
contemplated by s. 33(1) thus becomes a “manner and form” requirement that is essential to the validity of
any statute enacted in violation of a provision contained in s.2 or ss.7 to 15 of the Charter” (Hogg, 39-6).
• Next, the express declaration must be exact and precise in terms of the statute that is being excluded from
the provisions of the Charter. The express declaration has to be in the statute itself [though it can also be
added to an already existing statute via amendment].
• Third, the express declaration contemplated by s. 33(1) must be specific as to the Charter right which is
overridden.
• NOTE: “Expressly” in s.33 does not mandate that the Charter rights be identified or specific in words; a
numerical reference to the sections is “sufficiently precise”.
Judicial Review
• A court will find a declaration under s.33 to be invalid if it fails to meet the several requirements of s.33
• The declaration has to be limited to the rights enumerated in s.33; it must be specific and precise in terms of
the statute that is excluded from the Charter and in regard to the rights that are overridden; and lastly, it may
not be granted retroactive effect.
• It has been submitted that any declaration under s.33 would have to meet the s.1 standards of reasonableness
and demonstrable justification (B. Slattery, “Override Clauses under Section 3” (1983) 61 Can. Bar Rev.
391)
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•
Applying s.1, that is, establishing if the exercise of the overriding power is reasonable limit that can be
demonstrably justified in a free and democratic society, would act, to a certain degree as a form of judicial
review, allowing courts to strike down statutes that were contrary with the values of a free and democratic
society. Nonetheless, it is implied and understood in s.33 that, “once a Charter provision has been
overridden by an express declaration in a statute, the Charter provision has no application whatsoever to the
statute, and therefore, there is no need for any showing of reasonableness or justification under s.1” (Hogg,
39-8). This seemed to be the case in Ford.
Evaluation of s.33
• If we put aside the special case of Quebec, a province which has never granted its approval or consent to the
Charter of Rights, we are left with very few instances of the power of override being used.
• It is obvious governments are very hesitant to employ s.33.
• Employment of the “notwithstanding” clause acts as a “signaling function”, attracting criticisers to the fact
that the government thinks that its proposed legislation is contrary to the Charter. This in turn, of course,
would create public debate and controversy.
***
Ford v. Quebec (Attorney General) [1988] 2 S.C.R. 712
Is Section 58 or s. 69 of the Charter of the French Language Protected from the Application of s. 2(b) of the
Charter by a Valid and Applicable Override Provision Enacted in Conformity with s. 33 of the Charter?
23.
… there are two override provisions in issue…The two override provisions are in identical terms, reading
as follows: "This Act shall operate notwithstanding the provisions of sections 2 and 7 to 15 of the Constitution Act,
1982… The issue of validity that is common to both s.214 and s. 52 is whether a declaration in this form is one that is
made in conformity with the override authority conferred by s.33… …
24.
Section 214 of the Charter of the French Language ceased to have effect by operation of s.33(3) of the
Charter five years after it came into force, and it was not re-enacted pursuant to s. 33(4) of the Charter…the question of
the validity of s. 214 is moot, on the assumption, which was the one on which the appeal was argued, that on an
application for a declaratory judgment in a case of this kind the Court should declare the law as it exists at the time of its
judgment. We were, nevertheless, invited by the parties in this appeal and the appeals that were heard at the same time to
rule on the validity of the standard override provision as enacted by An Act respecting the Constitution Act, 1982, because
of the possible significance of that issue in cases pending before other tribunals. Before considering how the Court should
respond to that invitation, we propose to consider the other override provision in issue which, as we have said, raises a
common question of validity.
25.
Section 52 of An Act to amend the Charter of the French Language, which was proclaimed in force on
February 1, 1984, will not cease to have effect by operation of s.33(3) … February 1, 1989. It is therefore necessary to
consider its validity since the Attorney General of Quebec contends that it protects s. 58 of the Charter of the French
Language from the application of s. 2(b) of the Charter. The respondents in this appeal contend that s. 52 is of no force or
effect because it is an override declaration that was not made in conformity with s. 33 of the Charter, but the appellant
Singer in Devine also raised an issue concerning the application of s. 52, contending that it should not be construed as
intending to apply to s. 58, as amended, of the Charter of the French Language. That contention will be dealt with before
turning to the question of the validity of the standard override provision contained in s. 52.
30.
It was contended that the words "a provision included in section 2 or sections 7 to 15 of this Charter" in s.
33(1) and the words "but for the provision of this Charter referred to in the declaration" in s. 33(2) indicate that in order
to be valid, a declaration pursuant to s. 33 must specify the particular provision within a section of the
Charter which Parliament or the legislature of a province intends to override. That is, the specific guaranteed
right or freedom to be overridden must be referred to in the words of the Charter and not merely by the number
of the section or paragraph in which it appears. The rationale underlying this contention is that the nature of the
guaranteed right or freedom must be sufficiently drawn to the attention of the members of the legislature and of
the public so that the relative seriousness of what is proposed may be perceived and reacted to through the
democratic process. As the Attorney General for Ontario, who argued against the constitutionality of the standard
override provision, put it, there must be a "political cost" for overriding a guaranteed right or freedom.
33.
In the course of argument different views were expressed as to the constitutional perspective from
which the meaning and application of s. 33 of the Canadian Charter of Rights and Freedoms should be approached:
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the one suggesting that it reflects the continuing importance of legislative supremacy, the other suggesting the
seriousness of a legislative decision to override guaranteed rights and freedoms and the importance that such a
decision be taken only as a result of a fully informed democratic process. These two perspectives are not, however,
particularly relevant or helpful in construing the requirements of s. 33. Section 33 lays down requirements of form
only, and there is no warrant for importing into it grounds for substantive review of the legislative policy in
exercising the override authority in a particular case. The requirement of an apparent link or relationship between the
overriding Act and the guaranteed rights or freedoms to be overridden seems to be a substantive ground of review. It
appears to require that the legislature identify the provisions of the Act in question which might otherwise infringe
specified guaranteed rights or freedoms. That would seem to require a prima facie justification of the decision to
exercise the override authority rather than merely a certain formal expression of it. There is, however, no warrant in
the terms of s. 33 for such a requirement. A legislature may not be in a position to judge with any degree of certainty
what provisions of the Canadian Charter of Rights and Freedoms might be successfully invoked against various
aspects of the Act in question. For this reason it must be permitted in a particular case to override more than one
provision of the Charter and indeed all of the provisions which it is permitted to override by the terms of s. 33. The
standard override provision in issue in this appeal is, therefore, a valid exercise of the authority conferred by s. 33 in
so far as it purports to override all of the provisions in s. 2 and ss. 7 to 15 of the Charter. The essential requirement of
form laid down by s. 33 is that the override declaration must be an express declaration that an Act or a provision of
an Act shall operate notwithstanding a provision included in s. 2 or ss. 7 to 15 of the Charter. With great respect for
the contrary view, this Court is of the opinion that a s. 33 declaration is sufficiently express if it refers to the number
of the section, subsection or paragraph of the Charter which contains the provision or provisions to be overridden. Of
course, if it is intended to override only a part of the provision or provisions contained in a section, subsection or
paragraph then there would have to be a sufficient reference in words to the part to be overridden. In so far as
requirements of the democratic process are relevant, this is the form of reference used in legislative drafting with
respect to legislative provisions to be amended or repealed. There is no reason why more should be required under s.
33. A reference to the number of the section, subsection or paragraph containing the provisions or provisions to be
overridden is a sufficient indication to those concerned of the relative seriousness of what is proposed. It cannot have
been intended by the word "expressly" that a legislature should be required to encumber a s. 33 declaration by stating
the provision or provisions to be overridden in the words of the Charter, which, in the case of the standard override
provision in issue in the appeal, would be a very long recital indeed.
34.
…s. 52 of An Act to amend the Charter of the French Language is a valid and subsisting exercise of the
override authority conferred by s. 33 of the Charter that protects s.58 of the Charter of the French Language from the
application of s. 2(b)... Section 69 of the Charter of the French Language is not so protected since it was not affected
by An Act to amend the Charter of the French Language. In the result, as indicated in the following Part VI of these
reasons, s. 58 is subject to s.3 of the Quebec Charter of Human Rights and Freedoms, while s. 69 is subject to both s. 2(b)
of the Canadian Charter and s. 3 of the Quebec Charter.
35.
…Given the conclusion that the enactment of the standard override provision in the form indicated above
is a valid exercise of the authority conferred by s. 33 of the Charter, this Court is of the opinion that the validity of its
enactment is not affected by the fact that it was introduced into all Quebec statutes enacted prior to a certain date by a
single enactment. That was an effective exercise of legislative authority that did not prevent the override declaration so
enacted in each statute from being an express declaration within the meaning of s.33 of the Canadian Charter. Counsel
referred to this form of enactment as reflecting an impermissibly "routine" exercise of the override authority or even a
"perversion" of it. It was even suggested that it amounted to an attempted amendment of the Charter. These are once
again essentially submissions concerning permissible legislative policy in the exercise of the override authority rather
than what constitutes a sufficiently express declaration of override. As has been stated, there is no warrant in s. 33 for
such considerations as a basis of judicial review of a particular exercise of the authority conferred by s. 33….
LawNow, Peter Bowal, Carter Czaikowski, Josh Zablocki
“Charter Notwithstanding: Section 33, July 2, 2020
• The authors conclude that “the override clause is a uniquely Canadian invention in world constitutions.
Still, today it is constitutionally easy, but politically very complicated, for a Canadian government to use
section 33 in the way it was envisioned. Opponents of the provision claim that suspending rights is antiCharter. But what could be more pro-Charter than embracing one of its provisions?”
• The mandate of re-declaration every five years adds to the political checks and balances.
• Quebec is the only province to utilize section 33 effectively.
• There is a negative connotation associated with the clause; it still needs time to be accepted.
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20. FREEDOM OF CONSCIENCE AND RELIGION
Distribution of powers
• Which legislative body – federal Parliament or provincial Legislatures – has power to enact laws in regard
to religion? This issue first came up in the cases dealing with the validity of Sunday observance laws.
• In R. v. Edwards Books and Art [1986] 2 S.C.R. 713, Dickson J. stated that “the Constitution does not
contemplate religion as a discrete constitutional ‘matter’ falling exclusively within either a federal or
provincial class of subjects” (Id., 750).
• Consequently, legislation regarding religion can be competent to either the federal Parliament or the
provincial Legislatures, depending upon other features and traits of the law
Section 2(a) of the Charter
• Section 2(a) of the Charter guarantees to “everyone” the “fundamental freedom” of “freedom of conscience
and religion”. Section 2(a), like other Charter rights, is subject to s.1 (limitation clause) of the Charter.
Freedom of Conscience
• Section 2(a)’s reference to “conscience” safeguards systems of belief which are not theocentric (based on a
deity/God) and which might not be classified as religions for that reason (R. v. Morgentaler [1988]).
Freedom of Religion
• The leading case is R v Big M Drug Mart (1985) 1 S.C.R. 295. Here, the Supreme Court struck down the
Lord’s Day Act, a federal statute that banned commercial activity on Sunday.
• Dickson J. said the purpose of the Act was to “compel the observance of the Christian Sabbath” (Id., 351).
• That purpose was a breach of the freedom of religion of non-Christians: “government may not coerce
individuals to affirm a specific religious practice for sectarian purpose” (Id., 347)
• Dickson J. provided the following definition of freedom of religion: “The essence of the concept of freedom
of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious
beliefs openly and without fear of hindrance or reprisal and the right to manifest religious belief by worship
and practice or by teaching and dissemination”. (Id., 347)
Sunday Observance
• In Big M, the Supreme Court of Canada struck down the federal Lord’s Day Act, because the PURPOSE of
the Act was “to compel the observance of the Christian Sabbath” and this was not compatible with s. 2(a).
• In Edwards Books, the impugned law was Ontario’s Retail Business Holidays Act. The purpose of the law
was a secular one (not religion). The Court held, nonetheless, that the law violated section 2(a) of the
Charter, as its EFFECT (not purpose) was to inflict an economic burden on retailers who had another day
designated for religious purposes (other than Sunday). This effect of the law generated a “competitive
pressure” to desert a non-Sunday Sabbath; this was a violation of the freedom of religion (Id., 766).
Other Religious Practices
• In Young v. Young [1993] 4 S.C.R. 3, the Court held that the right to freedom of religion did not guarantee
any religious activity that would NOT be in the best interests of the children.
• The notion that freedom of religion permits religious practices only so far as they do not injure, or harm
others has been abandoned by the Supreme Court in preference of an unqualified right to do anything that is
dictated by a religious belief.
• In B. (R.) v Children’s Aid Society (1995) 1 S.C.R. 315, the Supreme Court held the decision of parents to
stop doctors from giving a blood transfusion to their baby was protected by freedom of religion (dictated by
their beliefs as Jehovah’s Witnesses). La Forest J. said the right of a parent to elect the medical treatment of
the child in accordance with the parent’s religious beliefs was a “fundamental aspect of freedom of religion”
AND the statutory procedure that had been executed was a “SERIOUS” violation of the parents’ rights
(paras. 105, 111). HOWEVER, he held that the statutory procedure was saved by s.1.
***
Syndicat Northcrest v Amselem (2004) 2 SCR 551
• The owners of condominiums were Orthodox Jews; they set up “succahs” (temporary dwellings) on
the condominium balconies for the purposes of fulfilling the biblically mandated obligation of
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•
Held:
•
•
•
•
•
•
dwelling in such small enclosed temporary hurts during the annual nine-day Jewish religious festival of
Succot.
The condominium by-laws prohibited “constructions of any kind whatever” on the balconies.
At para [39]: In order to define religious freedom, we must first ask ourselves what we mean by
“religion”. While it is perhaps not possible to define religion precisely, some outer definition is useful
since only beliefs, convictions and practices rooted in religion, as opposed to those that are
secular, socially based or conscientiously held, are protected by the guarantee of freedom of
religion. Defined broadly, religion typically involves a particular and comprehensive system of faith
and worship. Religion also tends to involve the belief in a divine, superhuman or controlling
power. In essence, religion is about freely and deeply held personal convictions or beliefs
connected to an individual’s spiritual faith and integrally linked to one’s self-definition and
spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine
or with the subject or object of that spiritual faith.
At para [43]: “…claimants seeking to invoke freedom of religion should not need to prove the
objective validity of their beliefs in that their beliefs are objectively recognized as valid by other
members of the same religion, nor is such an inquiry appropriate for courts to make; see, e.g., Re Funk
and Manitoba Labour Board (1976), 66 D.L.R. (3d) 35 (Man. C.A.), at pp. 37-38. In fact, this Court
has indicated on several occasions that, if anything, a person must show “sincerity of belief”
(Edwards Books, supra, at p. 735) and not that a particular belief is “valid”.
At para [46]: To summarize…freedom of religion consists of the freedom to undertake practices and
harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she
sincerely believes or is sincerely undertaking in order to connect with the divine or as a function
of his or her spiritual faith, irrespective of whether a particular practice or belief is required by
official religious dogma or is in conformity with the position of religious officials.
The Supreme Court held the claimants were entitled to set up their succahs.
Religious belief was “intensely personal and can vary from one person to another”. The test was
entirely subjective (para. 54).
Expert evidence is NOT necessary; the claimant only had to show the sincerity of his belief.
TEST: “Freedom of religion is triggered when a claimant demonstrates that he or she sincerely believes
in a practice or belief that has a nexus with religion (there has to be a connection with religion). Once
religious freedom is triggered, a court must then ascertain whether there has been non-trivial or
non-insubstantial interference with the exercise of the implicated right so as to constitute an infringement
of freedom of religion” (para 56-57)
•
•
•
•
•
At para [58]: Section 2(a) of the Canadian Charter prohibits only burdens or impositions on religious
practice that are non-trivial.
But what does “more than trivial or insubstantial mean”?
At para [60]: “…one can do no more than say that the context of each case must be examined to
ascertain whether the interference is more than trivial or insubstantial. But it is important to observe
what examining that context involves.
Para [61]: In this respect, it should be emphasized that not every action will become summarily
unassailable and receive automatic protection under the banner of freedom of religion. No right,
including freedom of religion, is absolute… This is so because we live in a society of individuals in
which we must always take the rights of others into account…
Para [62]: “…our jurisprudence does not allow individuals to do absolutely anything in the name of
that freedom. Even if individuals demonstrate that they sincerely believe in the religious essence of
an action, for example, that a particular practice will subjectively engender a genuine connection with
the divine or with the subject or object of their faith, and even if they successfully demonstrate nontrivial or non-insubstantial interference with that practice, they will still have to consider how the
exercise of their right impacts upon the rights of others in the context of the competing rights of
private individuals. Conduct which would potentially cause harm to or interference with the
rights of others would not automatically be protected. The ultimate protection of any
particular Charter right must be measured in relation to other rights and with a view to the underlying
context in which the apparent conflict arises.
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Multani v Commission Scolaire Marguerite-Bourgeoys (2006) 1 S.C.R. 256
• The question in this case was whether a thirteen-year-old Sikh boy was constitutionally entitled to
wear a “kirpan”
Held:
• The Supreme Court found the regulation which banned the wearing of the kirpan infringed the
student’s freedom of religion. The Court found the student sincerely believed that his religion required
him to wear a kirpan made of metal at all times. As per Syndicat Northcrest, this was all that the
student had to show: “that his personal and subjective belief in the religious significant of the kirpan is
sincere” (steps prior to Oakes).
• The student had rejected wearing a harmless symbolic kirpan, which was recommended by the review
committee that considered the student’s request for exemption. It was immaterial that “other Sikhs
accept such a compromise”, as this student sincerely believed a dagger without a metal blade would
not comply or obey with his religion.
• Thus, the student proved he had a sincere and personal belief in the religious practice (i.e. wearing a
kirpan) and demonstrated that this practice had a nexus with his religion.
• Trivial or insignificant element: “The council of commissioners’ decision prohibiting G from wearing
his kirpan to school infringes his freedom of religion. G genuinely believes that he would not be
complying with the requirements of his religion were he to wear a plastic or wooden kirpan, and none
of the parties have contested the sincerity of his belief. The interference with G’s freedom of
religion is neither trivial nor insignificant, as it has deprived him of his right to attend a public
school.” [2] [38-41] [44] [48] [77]
• Charron J. held safety in schools was a sufficiently important objective (step 1 of Oakes) to justify
limiting a Charter right and there was no hesitancy that a bladed weapon could cause harm, whether by
the owner or by another student and whether by deliberate use or by accident (Hogg, 42-12.2)
• The restriction on possessing a kirpan was clearly rationally connected to the safety purpose of the
regulation (step 2 of Oakes).
• But Charron J. held the ban on weapons was too expansive to satisfy the minimum impairment branch
of the Oakes test (stage 3); in other words, it was not the “least drastic means”.
• To limit the student’s freedom of religion as little as possible, she ordered the school to allow the
wearing of the kirpan, but on condition it be kept in a wooden sheath and sewn into the student’s
clothing so it could not be easily removed (Hogg, 42-12.2)
Alberta v Hutterian Brethren of Wilson Colony (2009) SCC 37, [2009] SCR 567
• At para [29]: The members of the Colony believe that permitting their photo to be taken violates the
Second Commandment: “You shall not make for yourself an idol, or any likeness of what is in heaven
above or on the earth beneath or in the water under the earth” (Exodus 20:4). They believe that
photographs are “likenesses” within the meaning of the Second Commandment and want nothing to do
with their creation or use. The impact of having a photo taken might involve censure, such as being
required to stand during religious services.
• Clearly, the members held a sincere belief in the practice of not having their photograph taken and this
had a nexus with religion. But did this have a trivial or non-trivial interference or burden?
• Para [30]: Given these beliefs, the effect of the universal photo requirement is to place Colony
members who wish to obtain driver’s licences either in the position of violating their religious
commitments, or of foregoing driver’s licences. Without the ability of some members of the Colony to
obtain driver’s licences, Colony members argue that they will not be able to drive to local centres to do
business and obtain the goods and services necessary to the Colony. The regulation, they argue,
forces members to choose between obeying the Second Commandment and adhering to their
rural communal lifestyle, thereby limiting their religious freedom and violating s.2(a) of the Charter.
• Para [32]: “Trivial or substantial” interference is interference that DOES NOT threaten actual religious
beliefs. The Court found that the interference was more than trivial or insubstantial (para. 34).
• Supreme Court held Hutterian claimants had a sincere religious belief that prohibited their being
photographed and that belief was protected by s. 2(a) of the Charter. They met sincere belief test.
• However, majority held the universal photo requirement was justified under s.1; it served an important
purpose and did not impose a severe burden on the claimants, who could avoid the requirement by
using alternative means of transport.
• The requirement was a reasonable limit on freedom of religion.
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Religion in Public Schools
• Programs of religious exercises or instruction in public schools will typically breach section 2(a) of the
Charter, freedom of religion (Zylberberg v. Sudbury Board of Education (1988) 65 O.R. (2d) 641 (C.A.).
Denominational Schools
• The Supreme Court has suggested that s. 2(a) requires a province to allow children to be educated outside
the secular public system (R v Jones [1986] 2 S.C.R. 284). However, the province must be entitled to
govern and regulate alternative schools, including denominational schools, to ensure that a core curriculum
and sufficient facilities and standards of teaching are offered.
• “In Canada, systems of state aid to minority Protestant and Catholic schools have existed since
confederation and are actually guaranteed by s.93 of the Constitution Act, 1867. Moreover, Protestant and
Catholic schools that are recognized by s.93 may receive public funding that is denied to the schools of
religious denominations not recognized by s. 93” (Hogg, 42-17).
• By virtue of section 93 of the Constitution, the right to have a publicly funded separate
denominational school system continues to be guaranteed to Roman Catholics in Ontario.
• In Alder v. Ontario [1996] 3 S.C.R. 609, the Court found that the province’s failure to fund religious
denominations schools not acknowledged by the Constitution (s.93) was NOT a violation of section 2(a) of
the Charter or of section 15 (equality)
Religious Marriage
• In all Canadian provinces, “a civil ceremony must be provided for all persons who want to get married and
have the capacity to marry and certainly cannot be denied on the basis of religion” (Hogg, 42-18)
• However, a religious ceremony can be denied by a church, synagogue or mosque to individuals who desire
to get married, but who are not adherents of that specific faith. Nonetheless, these couples can get married
in a civil ceremony.
***
Reference re Same-Sex Marriage Reference (2004) 3 S.C.R. 698
• Question: Could Parliament enact a bill legalizing same-sex marriage for civil purposes?
Held:
• Parliament could do so under its power over “marriage” in s. 91(26) of the Constitution Act, 1867.
• The Bill also included a section that provided: “Nothing in this Act affects the freedom of officials of
religious groups to refuse to perform marriages that are not in accordance with their religious beliefs”
(but this is under the provincial head of power).
• The Court held this provision was outside the jurisdiction of Parliament, as it related to “the
solemnization of marriage”, which was a provincial head of power under s. 92(12).
• BUT the Court to state: “The performance of religious rites is a fundamental aspect of religious
practice”.
• Therefore, “absent unique circumstances with respect to which we will not speculate, the guarantee of
religious freedom in s. 2(a) of the Charter is broad enough to protect religious officials from being
compelled by the state to perform civil or religious same-sex marriages that are contrary to their
religious beliefs” (para. 60).
• At para [57]: The right to freedom of religion enshrined in s.2 (a) of the Charter encompasses the right
to believe and entertain the religious beliefs of one’s choice, the right to declare one’s religious beliefs
openly and the right to manifest religious belief by worship, teaching, dissemination and religious
practice… The performance of religious rites is a fundamental aspect of religious practice.
• Para [58]: It therefore seems clear that state compulsion on religious officials to perform same-sex
marriages contrary to their religious beliefs would violate the guarantee of freedom of religion
under s.2 (a) of the Charter. It also seems apparent that, absent exceptional circumstances which we
cannot at present foresee, such a violation could not be justified under s.1 of the Charter.
• Para [60]: … the Court is of the opinion that, absent unique circumstances with respect to which we will
not speculate, the guarantee of religious freedom in s.2 (a) of the Charter is broad enough to protect
religious officials from being compelled by the state to perform civil or religious same-sex
marriages that are contrary to their religious beliefs.
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Balancing Rights
Note: it may be helpful to refer to the case below when you are confronted with two competing sets of Charter rights
(i.e., one individual is arguing a Charter right, such as freedom of expression or religion, and the other is arguing
their Charter right should prevail, such as the right to a fair trial)
R v N.S., 2012 S.C.C. 72, [2012] 3 S.C.R. 726
Facts:
• A Muslim woman in a sexual assault case sought to testify wearing a niqab (just shows eyes).
• The accused men sought an order that would mandate N.S. to remove the niqab.
• N.S. strongly objected to the removal of her niqab arguing that it was part of her religion and would
make her very uncomfortable to remove it. She held the sincere religious belief that she must wear a
niqab while testifying in front of any man who is not a direct family member (i.e., she satisfied the test
from Syndicate). This was deemed to be a religious practice protected by s. 2(a) of Charter.
• The accused put forward argument that given the gravity of the charges against them (i.e. imprisonment),
their right to make full answer and defence necessitated they be able to see the witness’s face.
• This demonstrates a need for balance between freedom of religion and breach of right to fair trial.
Held:
• Main issue was when, if ever, a witness who wears a niqab for religious reasons can be mandated to take
it off while testifying. Here, we have two Charter rights that are potentially engaged, that is, the witness’s
freedom of religion (s. 2(a)) and the accused’s fair trial rights (right to make full answer and defence).
• The Court said that a drastic approach that would mandate the witness to remove her niqab, or one that
would never allow it, is unwarranted. “The answer lies in a just and proportionate balance between
freedom of religion and trial fairness, based on the particular case before the court. A witness who for
sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be
required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because
reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of
requiring her to remove the niqab outweigh the deleterious effects of doing so”.
• This framework consists of addressing four inquiries:
(1) Would requiring the witness to remove the niqab during testifying infringe or interfere with her
religious freedom?
(2) Would allowing the witness to wear the niqab while testifying produce a serious and severe risk to
trial fairness (would it jeopardize the fairness of the trial)?
(3) Is there a manner which would accommodate both rights and evade the conflict between them?
Here, the judge has to take into account whether there are reasonable available alternative or
substitute measures.
(4) If an accommodation is not possible, then the fourth questions that must be answered is: do the
salutary (beneficial) effects of mandating the witness to take off the niqab outweigh the deleterious
(negative) effects of doing so? Deleterious impacts, the Court said, consist of the damage done by
restricting the witness’s sincerely held religious practice.
•
At para [78]: A clear rule that niqabs may not be worn would be consistent with the principle of openness
of the trial process and would safeguard the integrity of that process as one of communication. It would
also be consistent with the tradition that justice is public and open to all in our democratic society. This
rule should apply at all stages of the criminal trial, at the preliminary inquiry as well as at the trial itself.
Indeed, evidentiary issues arise and evolve at the different stages of the criminal process, and they affect
the conduct of the communication process taking place during the trial.
***
Mouvement Laique Quebecois v. Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3
Facts:
• S regularly attended the public meetings of the municipal council of the City of Saguenay.
• At the start of each meeting, the mayor would recite a prayer after making the sign of the cross while
saying “in the name of the Father, the Son and the Holy Spirit”.
•
S, who considers himself an atheist, felt uncomfortable with this display, which he considered religious,
and asked the mayor to stop the practice.
• When the mayor refused, S complained to the Commission des droits de la personne et des droits de la
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jeunesse. He argued that his freedom of conscience and religion was being infringed, contrary to ss. 3
and 10 of the Quebec Charter and asked that the recitation of the prayer cease and that all religious
symbols be removed from council chambers.
Held:
•
•
•
•
•
•
•
•
•
•
•
•
The state’s duty of religious neutrality results from an evolving interpretation of freedom of conscience
and religion.
The evolution of Canadian society has given rise to a concept of this neutrality according to which the
state must not interfere in religion and beliefs. The state must instead remain neutral in this regard,
which means that it must neither favour nor hinder any particular belief, and the same holds true for nonbelief.
The state’s duty to protect every person’s freedom of conscience and religion means that it may not use
its powers in such a way as to promote the participation of certain believers or non-believers in public
life to the detriment of others. If the state adheres to a form of religious expression under the guise of
cultural or historical reality or heritage, it breaches its duty of neutrality.
The Tribunal was therefore correct in holding that the state’s duty of neutrality means that a state
authority cannot make use of its powers to promote or impose a religious belief.
The recitation of the prayer at the council’s meetings was above all else a use by the council of public
powers to manifest and profess one religion to the exclusion of all others. On the evidence in the record,
it was reasonable for the Tribunal to conclude that the City’s prayer is in fact a practice of a religious
nature. Its decision on this point was supported by reasons that were both extensive and intelligible, and
the background facts, which were reviewed in detail, support its conclusion.
The prayer recited by the municipal council in breach of the state’s duty of neutrality resulted in a
distinction, exclusion and preference based on religion — that is, based on S’s sincere atheism — which,
in combination with the circumstances in which the prayer was recited, turned the meetings into a
preferential space for people with theistic beliefs. The latter could participate in municipal democracy in
an environment favourable to the expression of their beliefs.
Although non-believers could also participate, the price for doing so was isolation, exclusion and
stigmatization. This impaired S’s right to exercise his freedom of conscience and religion.
The attempt at accommodation provided for in the by-law, namely giving those who preferred not to
attend the recitation of the prayer the time they needed to re-enter the council chamber, had the effect of
exacerbating the discrimination.
The Tribunal’s findings to the effect that the interference with S’s freedom of conscience and
religion was more than trivial or insubstantial were supported by solid evidence, and deference is
owed to the Tribunal’s assessment of the effect of the prayer on S’s freedom of conscience and religion.
Barring the municipal council from reciting the prayer would not amount to giving atheism and
agnosticism prevalence over religious beliefs.
There is a distinction between unbelief and true neutrality. True neutrality presupposes abstention, but it
does not amount to a stand favouring one view over another.
In sum: The concept of neutrality means the state must not interfere in religion and beliefs. This
neutrality mandates that the state neither favour nor hinder nay particular belief. It requires that the state
abstain from taking any position and thus avoid adhering to a particular belief. Consequently, it may not
use its powers in such a way as to promote the participation of certain believers or non-believers in
public life to the detriment of others. The practice of opening Council sessions with prayers, it held,
constituted such a misuse of its powers.
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21. FREEDOM OF EXPRESSION
2 (b) of Charter guarantees to everyone the fundamental freedom of: ‘freedom of thought, belief, opinion and
expression, including freedom of the press and other media communication’
Political Speech
Provincial Power
• The provincial power over speech permits the regulation of speech on commercial or local grounds
• I.e., Tort of defamation is provincial; the compensation of harm to reputation supplies a dominant tortious
feature to the law and the law of torts is within provincial power (s. 92(13)).
• Advertising is a provincial competence, as it is part of the regulation of business and of consumer
protection, which falls within the provincial power (s. 92(13))
• In Nova Scotia Board of Censors v McNeil (1978) 2 S.C.R. 662, provincial censorship of films was upheld
because exhibition of films is a business, and this is within the provincial power. Censorship is part of the
regulation of the business, s.92(13) or could be seen as a regulation of a local matter, which is s.92(16).
Federal Power
• The federal government has the authority to regulate political speech. It also contains the power, by a ban
coupled with a sanction, to make specific kinds of speech criminal (i.e. fraud, obscenity, hate propaganda).
• The federal government obtains the authority to govern and regulate speech in the media that come within
federal jurisdiction, specifically, radio and television (Capital Cities Communications v. CRTC [1978] 2
S.C.R. 141).
Section 2(b) of the Charter
• S. 2(b) of the Charter of Rights guarantees to “everyone” the “fundamental freedom” of: Freedom of
thought, belief, opinion and expression, including freedom of the press and other media of communication
• S. 2(b) is subject to s.1. Due to s.1, judicial review under the Charter is a two-stage process:
o First ask if the law or action has the purpose or effect of limiting or restricting a guaranteed right
o Second, if the law does have that purpose or effect, ask if the law meets the standards of justification
under s.1.
• A law will be held to be invalid (unconstitutional) ONLY if BOTH questions are answered negatively
***
Irwin Toy v Quebec (1989) 1 S.C.R. 927, 968-971
Dickson C.J., Lamer and Wilson J.J.: three reasons for protecting freedom of expression
1) Seeking and attaining the truth is an inherently good activity;
2) Participation in social and political decision-making is to be fostered and encouraged; and
3) Diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated
Meaning of expression
Definition of Expression
• The Supreme Court of Canada has defined “expression” in these terms: “Activity is expressive if it
attempts to convey meaning”.28
• This broad definition bolsters the Court’s view - the Charter should be given a generous interpretation
• Is there activity that will be deemed to NOT be expression? “Most human activity combines expressive and
physical elements”; what is exempt is that which is “purely physical and does not convey or attempt to
convey meaning” (Irwin Toy, 927, 969)
Criminal Expression
• In Prostitution Reference (1990) 1 S.C.R. 1123, the Court held that communication for the purpose of
prostitution (Criminal Code offence) was safeguarded expression by virtue of section 2(b) of the Charter.
28
Re ss. 193 and 195.1 of Criminal Code (Prostitution Reference) [1990] 1 S.C.R. 1123, 1180; Rocket College of Dental Surgeons [1990] 2
S.C.R. 232, 244
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•
•
•
In R v Keegstra (1990) and R v Zundel (1992), the Criminal Code offences of publishing hate propaganda
and publishing false news were held to be an infringement of s. 2(b)
In R v Lucas (1998), the Criminal Code offence of publishing a defamatory libel with knowledge of its
falsity was found to breach s. 2(b)
If the expression is violent, it will NOT be protected by s.2(b)).
Violence
• Expressive activity that takes the form of violence is not protected by s. 2(b): “a murderer or a rapist
cannot invoke freedom of expression in justification of the form of expression he has chosen” (Irwin Toy).
• An individual also CANNOT invoke s. 2(b) to challenge his deportation from Canada for “conduct
associated with violent activity” (Suresh v. Can. [2002] 1 S.C.R. 3, para. 105).
• “Initially, Court said “threats of violence” were also unprotected, but it has since repented of this temporary
failure of nerve to hold that threats of violence are protected by s. 2(b)” (Hogg, 43-11)
• Thus, threats of violence are now protected (distinction between violence and threats of violence).
• As expressed by Jamie Cameron in Language as Violence v Freedom of Expression: Canadian and
American Perspectives on Group Defamation: hate propaganda is a form of violent expression
Content Neutrality
• Content neutrality is the governing principle of the Supreme Court’s definition of expression (Hogg, 43-12).
• “The content of a statement cannot deprive it of the protection accorded by s. 2(b), not matter how offensive
it may be” (R v Keegstra (1990) 3 S.C.R. 697)
• Hence, in Keegstra, the Court held the promotion of hatred against the Jews or another racial group
(Criminal Code offence) is protected by s. 2(b). The offence was saved by s.1.
Ways of Limiting Expression
Border Control
• A critical type of prior restraint is the outlawing on the importation of pornographic books and magazines.
The banned material can be halted and confiscated at the border, with custom officials acting as the censors.
• The importation of “immoral or indecent” books and magazines used to be banned by the Federal Customs
Tariff Act; however, in Luscher v. Revenue Can. [1985] 1 F.C. 85 (C.A.), the Act was struck down as being
too vague to serve as a reasonable limitation under s.1.
• The “immoral or indecent” standard was substituted with “obscene” in the Criminal Code.
• In the case of R. v. Butler [1992] 1 S.C.R. 452, the Supreme Court found the definition of “obscene” in the
Criminal Code was an adequately clear and transparent standard and “served sufficiently justified social
purposes to serve as the basis of the criminal offence of possession or sale of obscene materials. The
criminal offence was a valid limitation of freedom of expression under s.1” (Hogg, 43-15).
Penal Prohibition
• The most typical limit on speech is “prohibition coupled with a penal sanction…To the extent that the
prospect of punishment deters the uttering of the prohibited expression, a legal prohibition operates in the
same way as a prior restraint” (Hogg 43-16).
• In Rocket v. Royal College of Dental Surgeons [1990] 2 S.C.R. 232, the Court struck down a ban on
advertising by dentists. A ban on advertising aimed at children was upheld under s.1 in Irwin Toy.
• A ban on communication for the purpose of prostitution was upheld under s.1 in Prostitution Reference.
Civil prohibition
• An outlawing on expression that is sanctioned by only a civil remedy is illustrated by the tort of defamation.
• Violation of a civil duty does not attract a penal punishment, such imprisonment; the violation entitles
injured party to recover damages or acquire some other civil remedy (injunction)
• “Where a civil obligation is created by the common law… there will normally be no Charter remedy,
because the Charter does not apply to the rules of the common law that govern relations between private
parties.29 Where the civil prohibition is created by statute, the Charter will apply, and prohibition will
offend s. 2(b)” (Hogg, 43-17).
29
RWDSU v Dolphin Delivery [1986] 2 S.C.R. 573)
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Forced Expression
• Occasionally a person is forced by law to make a statement.
• In R.J.R. – MacDonald v Canada (1995) 3 S.C.R. 199, the Tobacco Products Control Act mandated that
tobacco products must be sold in packaging that conveys prescribed warnings of the health dangers and
perils of smoking. The Court held that the recondition of unattributed cautions was a violation of s. 2(b), on
the premise that “freedom of expression necessarily entails the right to say nothing or the right NOT to say
certain things” (para. 124). However, the Court found that a simple or mere requirement of health
cautions/warnings on the packages of cigarettes could be saved by s.1
Language requirements
• A Quebec law mandating that public signs and advertisements be ONLY in French was struck down as a
breach of s. 2(b). The law did not limit the content of signs or advertisements; they could include any
communication or message, AS LONG AS the message was in French.
• In Ford v. Quebec, the Court refused the contention that language was “merely a means or medium of
expression”; rather, the Court held, “it colours the content and meaning of expression” (Id.,748). The Court
held that freedom of expression comprised of “the freedom to express oneself in the language of one’s
choice”. The rule that only French could be used prohibited use of any language other than French; this was
found to be unconstitutional.
Search of press premises
• In CBC v Lessard [1991] 3 S.C.R. 421 and CBC v N.B. [1991] 3 S.C.R. 459, the Supreme Court reviewed
the matter of a police search warrant to acquire film taken by television crews of a crime is progress.
• The Supreme Court upheld the warrants, stressing the film had already been shown; no breach of s.2(b).
Disclosure of journalists’ sources
• In R v National Post (2010) 1 S.C.R. 477, Binnie J. recognized that the freedom to public the news, which
was guaranteed by s. 2(b), inevitably included freedom to gather the news and a vital “element of the
newsgathering function was ability of media to make use of confidential sources” (Hogg, 43-20.1)
• The common law could “properly be developed to reflect Charter values” (para. 50). Binnie J. said the
common law should acknowledge a journalist-source privilege closely aligned with the Charter guarantee of
freedom of press, but would not have constitutional force, and would be applied on a case-by-case basis.
• At paras. 56-59: There were four elements to the privilege: (1) the journalist must have received a
communication that originated in a confidence that the identity of the informant would not be disclosed; (2)
the confidence must be essential to the relationship in which the communication arises; (3) the relationship
must be one that should be “sedulously fostered” in the public good; and finally (4) the public interest
served by protecting the identity of the informant must outweigh the public interest in getting the trust.
Commercial Expression
Protection of commercial expression
• “Commercial expression”, of which the most important example is advertising, is expression that is
designed and tailored to encourage and promote the sale of goods and services (R.J. Sharpe)
• There are two justifications as to why commercial expression should be protected via s.2(b):
o First, it literally falls within the meaning of the word “expression” and it makes a contribution to
the “marketplace of ideas” that is promoted by constitutional guarantee
o Second, it is very challenging to differentiate commercial speech from other kinds of speech, in
that an array of political, economic and social ideas are inescapably innate in commercial speech.
Language requirements
• The Supreme Court has held from the start that commercial expression is protected by the guarantee of
freedom of expression in s. 2(b).
• In Ford v. Quebec (1988) 2 S.C.R. 712, the Court found that the Quebec law mandating commercial signs
to be in French alone was unconstitutional. This law was not capable of justification under s.1. Indeed, it did
pursue a sufficiently important objective (i.e. protection of the French language); however, it failed at the
“least drastic means” step, as the law harmed the rights of English-speakers more than was necessary to
achieve the purpose.
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Advertising restrictions
• In Irwin Toy, a Quebec law that banned commercial advertising aimed at young children was upheld. The
Court found that protecting a vulnerable group was a sufficiently important purpose. The prohibition was
not absolute (i.e., passed the least drastic means stage).
• In Rocket v Royal College of Dental Surgeons (1990) 1 S.C.R. 232, the Court held the dental regulation
breached s. 2(b); the regulation was too expansive and failed the “least drastic means” step in Oakes.
Signs
•
Commercial signs are protected and shielded by s. 2(b). In Ford v. Quebec, it was the regulation of the
language of commercial signs that was struck down.
Prostitution
• Prostitution, like tobacco, is lawful in Canada. However, the Criminal Code makes it an offence to
communicate in a public place for the purpose of engaging in prostitution.
• In the Prostitution Reference (1990), Supreme Court held this type of “commercial speech” is protected by
s. 2(b). However, the Criminal Code provision was upheld under s.1
Picketing
• Under the expansive definition of “expression”, both political and commercial expressions are shielded.
• In the Dolphin Delivery case (1986) 2 S.C.R. 573, the Court held that the Charter had no application to the
secondary picketing because this involved a dispute between two private parties (governed by the common
law; no statute involved). Recall: The Charter does not apply to purely private matters
• In the Vancouver Courthouse case (1988) 2 S.C.R. 214, the picketing occurred outside a courthouse. The
Court found that there was a legal premise for the injunction (stopping the picketing outside of the
courthouse) because picketing was a criminal contempt of court. Thus, the Court did not set aside the
injunction. Though, prohibiting the picketing (i.e. enforcing the injunction) was indeed a limit on freedom
of expression, the Court held that the injunction was saved by section 1. “Assuring unimpeded access to the
courts” was a sufficiently important objective, and the injunction was not too expansive, as it “left the union
and its members free to express themselves in other places and other ways so long as they did not interfere
with the right of access to the courts” (Id., 248, McIntyre J.)
Hate Propaganda
• Hate propaganda is any communication, poster or material that promotes hatred against minority groups.
• It is prohibited by the Criminal Code, which makes it an offence to willfully promote hatred against “any
section of the public distinguished by colour, race, religion or ethnic origin”. Obviously, this is a restraint
and limit on expression.
• The purpose of the ban is to encourage the value of equality, as the impact of hate propaganda is to buttress
the destructive and negative attitudes towards minorities that are critical obstacles to the achievement of
equality.
• In Keegstra, the Court held that s. 2(b) reaches and covers all messages, “however unpopular, distasteful or
contrary to the mainstream” (Id., 729). However, although the Court said hate propaganda was protected by
s. 2(b), it went on to uphold the Criminal Code provision banning hate propaganda.
***
Saskatchewan (Human Rights Commission) v. Whatcott (2013) SCC 11, [2013] 1 SCR 46730
• Four complainants brought an application to the Saskatchewan Human Rights Commission receiving
flyers entitled “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public
Schools” from Christian anti-homosexual activist Bill Whatcott
• The complainants alleged a violation of section 14 of “The Saskatchewan Human Rights Code (SHRC),
which prohibits “publication or display of any representation that exposes or tends to expose to hatred,
ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a
prohibited ground”. Sexual orientation was one such prohibited ground
Held:
The Court held the tribunal and the trial judge had erred by considering only certain phrases from the flyers and
that the flyers were not a prohibited hate publication. The Court looked at the flyers in detail.
30
Wikipedia: https://en.wikipedia.org/wiki/Saskatchewan_Human_Rights_Commission_v_Whatcott
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Defining Hatred
• Rothstein J: Supreme Court found in R v Taylor “hatred” usually refers to “unusually strong and deep-felt
emotions of detestation, calumny and vilification”.
• He identified two primary difficulties arising alongside the Taylor hatred doctrine; namely, that hatred is
inherently subjective, which could conflict with the court’s attempt at objectivity and that it could lead to a
“mistaken propensity to focus on the ideas being expressed, rather than on the effect of the expression”.
• Rothstein J adapted the standard by holding that it should be conducted objectively, that “hatred” should
be interpreted as “extreme manifestations of the emotion described by the words ‘detestation’ and
‘vilification’, a threshold which would not include merely repugnant or offensive expression, and that
tribunals should consider the effect of the expression, not its inherent offensiveness.
Freedom of Expression Analysis
• Rothstein J next analyzed the constitutionality of s. 14(1)(b) of the SHRC. He held the expression was
protected by s. 2(b) and proceeded to conduct a s.1 Oakes test.
Oakes Test
• Stage 1: He described the purpose of the legislation as “reducing the harmful effects and social costs of
discrimination by tackling certain causes of discriminatory activity”, noting its emotional and societal
effects on vulnerable groups and its ability to impeded democratic discussion.
• THUS, he found the provision was prescribed by law and its objective was PRESSING AND
SUBSTANTIAL.
• Stage 2: Rational Connection: he considered whether the s. 14(1)(b) limitation on free expression was
rationally connected to the legislation’s purpose.
o Since, the section only captured hate speech communicated in public and applied only to
expression based on existing prohibited grounds of discrimination, he found the provision was
rationally connected to the legislative objective.
• He found, however, the wording “ridicules, belittles or otherwise affronts the dignity of” contained in s.
14(1)(b) of the SHRC was constitutionally invalid, since the threshold set by that language was too low
and thus did not align with the legislation’s purpose.
o The offending words were removed from the section.
• Stage 3: Minimal Impairment: he considered whether the provision minimally impaired the impugned
right to freedom of expression.
o He answered affirmatively, holding that alternative measures, including a “marketplace of ideas”
and an expanded role for the criminal law in hate speech cases, would not achieve the legislative
objective, or would only achieve it ineffectively.
o He also held the provision was not overbroad once the language “ridicules, belittles or otherwise
affronts the dignity of” was removed.
• He rejected Whatcott’s argument the expression was protected because it was political in nature.
• Stage 4: Proportionality: He found the benefits of the s. 14(1)(b) prohibition hate speech outweighed
“detrimental effect of restricting expression which, by its nature, does little to promote the values
underlying freedom of expression”
Defamation
• The tort of defamation offers civil redress for an individual whose reputation has been damaged or harmed
by false statements and proclamations made by the defendant.
• “Under the content-neutral definition of expression, the defendant’s freedom of expression is abridged by
this prohibition against statements that are both false and harmful” (Hog, 43-31).
• In New York Times v. Sullivan (1964) 376 U.S. 254, the Supreme Court of the United States held that “a
public official could successfully sue for defamation ONLY if he established that the defendant made the
defamatory statement with malice, that is, knowledge that the statement was false or at least with a reckless
disregard of whether or not the statement was false. The presence of malice was required to strip the speech
of its constitutional protection” (Hogg, 43-32). It was found that no malice existed and as such, the
statement was afforded protection by the first amendment.
• In Grant v. Torstar Corp. [2009] 3 S.C.R. 640, the Supreme Court found that although the law of
defamation must carry on safeguarding reputation, it has to be amended to incorporate the novel defence of
responsible communication on matters of public interest. The new defence…is an additional defence for
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situations where the publisher is not able to demonstrate or prove the truth of a defamatory statement but
can prove that it acted in a responsible manner in publishing the statement.
o This defence is available to conventional media AND to commentary on issues of public interest
by individuals other than journalists.
o There are two components to the new defence: (1) the publication MUST be on a matter of “public
interest” (paras. 99-109) and (2) the publication MUST be “responsible” (paras. 110-125).
o In terms of the first element, “public” interest is not restricted to just the government or a public
figure. In terms of the second element, consider the due diligence exercised by the publisher in
regard to attempting to verify the defamatory allegation (verify the truth of the matter).
Pornography
• Endeavours to prohibit the description or depiction of sexual activity have customarily been justified as
protecting public morality by averting the dissemination of material that is morally objectionable.
• It is evident by the expression cases in the Supreme Court of Canada that pornography, including obscenity,
is protected by expression Canada.
• In R. v. Butler [1992] 1 S.C.R. 452, the Court found that the ban of obscenity was a breach of s. 2(b).
Nonetheless, the Court held that the ban could be upheld under s.1. Sopinka J held the “undue” exploitation
of sex contemplated material that (1) portrayed explicit sex with violence, or (2) portrayed explicit sex
without violence, but in a degrading or dehumanizing manner by “placing women (and sometimes men)
in positions of subordination, servile submission or humiliation” (Id., 479).
• In R. v. Sharpe [2001] 1 S.C.R. 45, the Supreme Court the Criminal Code offence of possession of ‘child
pornography’ was a limit on freedom of expression. Of course, this limit was upheld under s.1. The Court
held that possession contributed to the market for child pornography; this in turn led to production of child
pornography, which often involved the mistreatment and corruption of children. The Court followed Butler
to hold there was a “reasoned apprehension of harm” and this was sufficient. As soon as harm to children
was implicated, the elements of the Oakes test fell into place and the ban of possession was upheld.
Access to Public Property
• Does s. 2(b) bestow a right to utilize public property as a forum of expression?
• In regard to private property, the general rule (both common and civil law) is that the owner has the power
to decide who uses the property and for what intention or purpose. This implies that it is the owner who
possesses the power and authority to establish the extent, if any, that the property can be utilized as the
location of signs, pickets, speeches or other forms of expression.
• This rule is not impacted by s. 2(b) of the Charter, because the Charter does not apply to private action!
• Therefore, it is evident s. 2(b) confers NO RIGHT to use private property as a forum of expression
• However, what about public property? Because, the Charter applies to governmental action, s. 2(b) is
potentially applicable.
Committee for the Commonwealth of Canada v Canada (1991) 1 S.C.R. 139
• Issue was if the manager of Crown-owned airport in Montreal could ban distribution of political leaflets.
Held:
• The Supreme Court found that the ban was unconstitutional. S. 2(b) conferred a right to use public
property for expression purposes. The government did not obtain the absolute power of a private owner
to control and manage access to and use of public property.
• However, the Court was divided in terms of its attempt to define the scope of the right of expression.
• L’Heureux Dube J. held the most expansive view of the right of expression on public property: s. 2(b)
conferred a right to use all governmental property for purposes of expression.
• McLachlin J. said a ban on expression on governmental property would breach s. 2(b) only if the person
seeking access was pursuing one of the three purposes of the guarantee of freedom of expression. Those
purposes are (1) seeking truth, (2) participation in decision-making and (3) individual self-fulfillment
(Id., 238-239).
• Lamer C.J. would permit proprietary controls over access or use to the extent required to execute the
principal function of the governmental place. Lamer CJ’s functional test is not free of trouble.
• “McLachlin J. pointed out, it does involve identifying and defining the function of any governmental
place in which expression rights have been asserted; it involves determining what degree of expressive
activity would be compatible with the function; and because these inquiries take place within s. 2(b)
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•
•
rather than s.1, the onus of proof rests on the person asserting freedom of expression” (Hogg, 43-46).
But the functional test offers more reassurance than the s.1 inquiry. The functional test is also not unduly
restrictive of the guarantee of freedom of expression.
“Lamer CJ’s functional test would extend the constitutional guarantee to expression on any
governmental property so long as the expression was compatible with the principle function of the
property” (Hogg, 43-46).
Since the distribution of political leaflets was compatible and aligned with the airport’s function of
serving the travelling public, Lamer CJ held the plaintiffs had a constitutional right to execute the
practice. It was held the restriction was overbroad and hence NOT saved by section 1
*** (Test from Committee for the Commonwealth restructured)
Montreal v 2952-1366 Quebec (2005) 3 S.C.R. 141
Facts:
• A strip club in Montreal set up a loudspeaker at its street entrance. The speaker broadcasted music, and
commentary that accompanied the show. The club was charged under a city by-law that banned noise
created by sound equipment that could be heard outside a building.
• The by-law did not consist of language specifying any certain or specific level of noise or any
disturbance of neighbours or passers-by. Nonetheless, McLachlin CJ and Deschamps J interpreted the
by-law only relating to “noise that adversely affects the enjoyment of the environment” (para. 34)
• On that premise, they held the by-law was permitted by the city’s statutory power to define and ban
nuisances. This led to the constitutional question: was the by-law contrary to s. 2(b)?
• “The broadcast conveyed a message about the show that was going on in the club. That was expression.
Although, the message originated in private premises where s. 2(b) would not apply, it was the
transmission into the public street (public property) that was prohibited by the by-law” (Hogg, 43-47).
• The main question here: Did s. 2(b) safeguard expression that was transmitted into a public street?
Held:
• The Court formulated a single test from the three approaches in the Commonwealth case by joining
components and elements of the Lamer and McLachlin opinion.
• The reformulated test for the application of s. 2(b) on public property was: Whether the place is a
public place where one would expect constitutional protection for free expression on the basis that
expression in that place does not conflict with the purposes which s. 2(b) is intended to serve,
namely, (1) democratic discourse, (2) truth-finding and (3) self-fulfillment (para. 74).
• To respond to this inquiry, it was essential to take into consideration the “historical function” of the
place, the “actual function of the place” and “whether other aspects of the place suggest that expression
within it would undermine the values underlying free expression” (para. 74).
• In this case, the streets “are clearly areas of public, as opposed to private, concourse, where expression
of many varieties has long been accepted” (para 81). PUBLIC = entitled to Charter protection.
• Thus, the club’s broadcast into the street was protected by s. 2(b). The Court went on to hold the by-law
was justified as a reasonable limit under s.1, in spite of its lack of standards with respect to the level or
effect of the prohibited noise.
Greater Vancouver Transportation Authority v Canadian Federation of Students (2009) 2 S.C.R. 295
• The Supreme Court applied the Montreal test to establish if expression conveyed on the sides of buses
was safeguarded by s. 2(b).
• Though, the sides of buses had not historically been used for expressive purposes, they were now
employed for such purposes (albeit not for political advocacy).
• The expressive activity was not inharmonious with the primary function of the bus as an automobile
• The side of a bus was a public place akin to a city street “where individuals can openly interact with each
other and their surroundings”, and expression there would enhance the purposes of s. 2(b) “by furthering
democratic discourse and perhaps even truth finding and self-fulfillment” (para. 43)
• The Court had no difficulty in finding the ban of political messages was a violation of s. 2(b). The Court
held that it was NOT saved by s.1.
• “Clearly, the Court envisaged a bus as a kind of democracy wall on which a robust exchange of ideas,
including political ideas, could take place” (Hogg, 43-48).
• NOTE: by enabling political advertising on businesses, this did not breach the purposes which s.2(b) is
intended to serve, namely (1) democratic discourse, (2) truth-finding and (3) self-fulfillment.
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Access to Courts
Restriction on reporting
• Freedom of the press consists of the freedom to publish reports of proceedings in court.
• In the case of Canadian Newspapers Co. v. Canada [1988] 1 S.C.R. 122, “the Criminal Code made
provision for a court order prohibiting the media from disclosing the identity of the complainant in a case of
sexual assault. Though, the provision restricted the freedom of the press which is guaranteed by s. 2(b), the
restriction, that is, the Criminal Code section, was saved by s.1.
• In Toronto Star Newspapers v. Ontario (2005) 2 S.C.R. 188, the Court held that court proceedings were to
be “open” unless “disclosure would subvert the ends of justice or unduly impairs its proper administration”.
Restrictions on access
• Freedom of press also comprises of the right of the press and public to be present in court.
• In Re Southam and the Queen (No. 1) (1983) 41 O.R. (2d) 113 (C.A.), the Court reviewed the Juvenile
Delinquents Act. Section 12(1) stated that “the trials of children shall take place without publicity”. The
Court recognized that in some situations, the interests of the child would justify limitations on press access
to the trial. However, the Court found that an absolute prohibition could not be saved by s.1, as it did not
meet the “least drastic means” test.
SUMMARY OF FREEDOM OF EXPRESSION TEST/ANALYSIS31
Canadian courts have interpreted section 2(b) very broadly, often finding a prima facie breach easily. The Supreme
Court has adopted the following three-part test for analyzing section 2(b):
1) Does the activity in question have expressive content, thereby bringing it within section 2(b) protection?
2) Does the method or location of this expression remove that protection? and
3) If the expression is protected by section 2(b), does the government action in question infringe that protection,
either in purpose or effect? (Canadian Broadcasting Corp. v. Canada (Attorney General) (2011); Montréal
(City) v. 2952-1366 Québec Inc., [2005]; Irwin Toy Ltd.)
1. Does the activity in question have expressive content, thereby bringing it within section 2(b) protection?
• Expression protected by section 2(b) has been defined as “any activity or communication that conveys or
attempts to convey meaning” (Thomson Newspapers Co., Irwin Toy Ltd.).
• Courts have applied the principle of content neutrality in defining the scope of s. 2(b), such that the content of
expression, no matter how offensive, unpopular or disturbing, cannot deprive it of section 2(b) protection
(Keegstra).
• Being content-neutral, the Charter also protects the expression of both truths and falsehoods (Canada (Attorney
General) v. JTI-Macdonald Corp., [2007]; R. v. Zundel, [1992]; R. v. Lucas, [1998]
• Freedom of expression includes more than the right to express beliefs and opinions.
• It protects both speakers and listeners (Edmonton Journal v. Alberta (Attorney General) (1989). “Expression”
may include all phases of the communication, from maker or originator through supplier, distributor, retailer,
renter or exhibitor to receiver, whether listener or viewer (Dagenais v. Canadian Broadcasting Corp.; Irwin
Toy Ltd.; Rocket v. Royal College of Dental Surgeons of Ontario [1990]
Protected expression has been found to include:
•
•
•
•
•
“music, art, dance, postering, physical movements, marching with banners, etc.” (Weisfeld v. Canada,
[1995]
commercial advertising (R. v. Guignard [2002]; Ford; Irwin Toy Ltd; Rocket; Ramsden v. Peterborough
(City), [1993]; RJR-MacDonald Inc. v. Canada (Attorney General) (1995); JTI-Macdonald Corp)
posters on utility poles (Ramsden, supra);
peace camps (Weisfeld (F.C.A.), supra);
signs and billboards (Guignard, supra; Vann Niagara Ltd. v. Oakville (Town) [2003];
31
Government of Canada, Department of Justice. Freedom of Religion. This summary is from the Government of Canada website: https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrfccdl/check/art2b.html
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•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
picketing (R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages [2002]; Dolphin Delivery Ltd. v.
R.W.D.S.U. Local 580 [1986] B.C.G.E.U v. British Columbia (Attorney General) [1988] Dieleman v. Attorney
General of Ontario (1994); Morasse v. Nadeau-Dubois [2016];
handing out leaflets (U.F.C.W, Local 1518 v. Kmart Canada Ltd. [1999]; Allsco Building Products Ltd. v.
U.F.C.W. Local 1288 P [1999];
expressing oneself in the language of choice (Ford, supra);
hate speech (Keegstra, supra; R. v. Zundel, supra; Saskatchewan (Human Rights Commission) v. Whatcott;
Ross v. New Brunswick School Board (1996); Taylor v. Canada (Human Rights Commission) [1990]
pornography (R. v. Butler (1992); Little Sisters Book and Art Emporium v. Canada (2000)
child pornography (Sharpe, supra; R v. Barabash (2015)
communication for the purpose of prostitution (Reference re: section 193 and paragraph 195.1(1)(c) of
the Criminal Code (Manitoba) [1990]
noise being emitted by a loudspeaker from inside a club onto the street (Montréal (City), supra, at
paragraph 58);
importation of literature or pictorial material (Little Sisters, supra);
defamatory libel (R. v. Lucas);
voting (Siemens v. Manitoba (Attorney General) (2003); Haig v. Canada (1993);
running as a candidate for election (Baier v. Alberta (2007));
spending in election and referendum campaigns (Harper, supra; Libman v. Quebec (Attorney General)
[1997]; B.C. Freedom of Information and Privacy Association v. British Columbia (2017)
broadcasting of election results (R. v. Bryan [2007]);
engaging in work for a political party or candidate (Osborne v. Canada (Treasury Board) [1991]);
publication of polling information and opinion surveys (Thomson Newspapers Co., supra);
monetary contributions to a fund may constitute expression, for example, donations to a candidate or
political party in the electoral context (Osborne, supra), though not where the expenditure of funds would be
regarded as the expressive conduct of the union as a corporate entity (Lavigne v. Ontario Public Service
Employees Union [1991]); and
political advertising on public transit vehicles (Greater Vancouver Transportation Authority v. Canadian
Federation of Students — British Columbia Component [2009])
NOTE: Freedom of expression also protects the right not to express oneself.
•
•
•
“Freedom of expression necessarily entails the right to say nothing or the right not to say certain things.
Silence is in itself a form of expression which in some circumstances can express something more clearly than
words could do” (Slaight Communications Inc. v. Davidson [1989]).
Thus, forced or compelled expression can constitute a restriction of s. 2(b) (Slaight Communications, supra;
RJR-MacDonald Inc., supra; National Bank of Canada v. Retail Clerks’ International Union [1984]).
2. Does the method or location of this expression remove that protection?
•
•
The Supreme Court has stated that the method or location of the conveyance of a message will be excluded
from 2(b) protection if this method or location conflicts with the values underlying the provision, namely: selffulfillment, democratic discourse and truth finding (Canadian Broadcasting Corp.; Montreal (City)
In practice, however, this test is usually just applied to an analysis of the location of expression; the method of
expression is generally considered to be within section 2(b) protection unless it takes the form of violence
or threats of violence.
(i) Method of expression
•
•
•
Expression that takes the form of violence is not protected by the Charter (Irwin Toy Ltd.).
The Supreme Court has held that whether or not physical violence is expressive, it will not be protected by
section 2(b) (Keegstra, supra; Zundel (1992), supra; Irwin Toy Ltd., supra).
Threats of violence also fall outside the scope of section 2(b) protection (Greater Vancouver Transportation
Authority; Suresh v. Canada [2002]; R v Khawaja [2012]).
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(ii) Location of expression
•
•
•
•
•
•
•
Section 2(b) protection does not extend to all places.
Private property, for example, will fall outside the protected sphere of section 2(b) absent state-imposed limits
on expression, since state action is necessary to implicate the Charter.
The application of s. 2(b) is not automatic by the mere fact of government ownership of the place in question.
There must be a further enquiry to determine if this is the type of public property attracts section 2(b) protection
(Montréal (City; Committee for the Commonwealth of Canada.
In Montréal (City), the majority of the Supreme Court set out the current test for the application of section
2(b) to public property (GVTA).
The onus of satisfying this test rests on the claimant (GVTA). The basic question with respect to expression on
government-owned property is whether the place is a public place where one would expect constitutional
protection for free expression on the basis that expression in that place does not conflict with the
purposes which section 2(b) is intended to serve, namely (1) democratic discourse, (2) truth finding and
(3) self-fulfillment.
To answer this question, the following factors should be considered:
o The historical or actual function of the place; and
o Whether other aspects of the place suggest that expression within it would undermine the values
underlying free expression. (Montréal (City))
3. Does the law or government action at issue, in purpose or effect, restrict freedom of expression?
(i) Purpose
•
Where the purpose of a government action is to restrict the content of expression, to control access to a certain
message, or to limit the ability of a person who attempts to convey a message to express him or herself, that
purpose will infringe section 2(b) (Irwin Toy Ltd.; Keegstra).
(ii) Effect
•
•
•
Even if a purpose is compatible with section 2(b), an individual may be able to demonstrate that the effect of
the government action infringes his or her section 2(b) right.
In this situation, the individual must show that his or her expression advances one or more of the values
underlying section 2(b), e.g., participation in social and political decision making, the search for truth and
individual self-fulfillment (Irwin Toy Ltd.; Ramsden).
If a court concludes that the government action, in either purpose or effect, infringes section 2(b), it will
then consider whether the limit on free expression is justifiable under section 1 (Now move on to the
OAKES TEST).
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22. LIFE, LIBERTY AND SECURITY OF THE PERSON
Section 7 of the Charter
• “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof in
accordance with the principles of fundamental justice”
• Section 7 is limited to “life, liberty and security of person”: this does not include property, and does not
include a determination of rights and duties respecting economic interests
• Section 7 of the Charter requires that laws or state actions that interfere with life, liberty and security of the
person conform to the principles of fundamental justice — the basic principles that underlie our notions of
justice and fair process (Charkaoui v. Canada (Citizenship and Immigration) [2007].
Application of s.1
• Section 7 makes clear that a law can deprive a person of life, liberty and security of the person if the law
adheres to the principle of fundamental justice
Benefit of Section 7
Corporations
• S.7 is applicable to “Everyone”, a word one would think consists of both a corporation and individual
• However, the Supreme Court has held that s.7 “everyone” DOES NOT INCLUDE a corporation
• Irwin Toy v. Que. [1989] 1 S.C.R. 927, 1004: An artificial person such as a corporation is INCAPABLE of
possessing “life, liberty or security of the persons”, as these are characteristics of natural persons.
• This does not mean a corporation can never invoke s.7 (Thompson Newspapers v Can [1990] 1 SCR 425).
• “When a corporation is a defendant to a prosecution, the corporation is entitled to defend the charge on the
basis that the law is a nullity” (Hogg, 47-5). In R. v. Wholesale Travel Group (1991) 3 S.C.R. 154, this
principle enabled a corporation to defend a criminal charge on the premise the law under which the charge
was laid would be a breach of s.7 in terms of its application to a person.
Immigrants
• “Everyone” in s.7 includes illegal immigrants to Canada. In Singh v Minister of Employment and
Immigration (1985) 1 S.C.R. 177, Wilson J said s.7 rights could be asserted by “every human being who is
physically present in Canada and by virtue of such presence amenable to Canadian law” (Id., 202).
Foetus
• “Everyone” in s.7 does not include a foetus; as such, a foetus is not entitled to a right to life.
• The Supreme Court has employed s.7 to strike down constraints on abortion, because the restrictions
deprived the mother of her right to liberty or security of the person (R v Morgentaler (No 2) [1988]).
Life
•
•
•
•
S.7 protects “life, liberty and security of the person”. “So far as “life” is concerned, the section has little
work to do because governmental action rarely causes death” (Hogg, 47-6).
The Supreme Court found undue waiting times for treatment in the public health care system enhanced the
risk of death; this was a breach of the right to life (and security of the person) (Chaoulli v Que. [2005] 1
S.C.R. 791.
The right to life is engaged where the law or state action imposes death or an increased peril of death, either
directly or indirectly (Carter v. Canada [2015); Chaoulli).
Concerns about autonomy and quality of life are properly treated as liberty and security interests (Carter).
Liberty
Physical Liberty
• “Liberty” includes freedom from physical restraint (i.e., handcuffed; jail).
• “Any law that imposes the penalty of imprisonment, whether the sentence is mandatory or discretionary, is
by virtue of that penalty a deprivation of liberty and MUST CONFORM to the principle so fundamental
justice” (Hogg, 47-7).
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•
•
•
•
•
If a law only imposes a penalty of a fine, it is not a deprivation of liberty and as such, does not need to
adhere or conform to the principles of fundamental justice (Re B.C. Motor Vehicle Art [1985] 2 S.C.R. 486,
529).
A law suspending someone’s driver’s licence is not a deprivation of liberty (Buhlers v. B.C. (1999) 170
D.L.R. (4th) 344 (B.C.C.A.)
The deportation of a non-citizen is not a deprivation of liberty, attracting the rules of fundamental justice, as
a non-citizen is not entitled to enter or remain in Canada (Medovarski v Can. [2005] 2 S.C.R. 539)
In May v. Ferndale Institution (2005) 3 S.C.R. 809, the Court found that the failure of the Correctional
Service to satisfy a statutory duty to provide information regarding justifications for the transfer was not
adequately critical or important to qualify as a violation of fundamental justice (paras. 89-92).
Liberty in s.7 extends beyond physical restraint (expansion of scope); it also extends to psychological
restraint. In Blencoe v. British Columbia (2000) 2 S.C.R. 307, the Court said liberty in s.7 is “no longer
restricted to mere freedom from physical restraint; it applies whenever the law prevents a person from
making fundamental personal choices” (paras. 49, 54).
Economic Liberty
• Liberty must be interpreted as NOT INCLUDING property, freedom of contract and in short, as NOT
INCLUDING economic liberty (Re ss. 193 and 195.1 of Criminal Code (Prostitution Reference) [1990])
• Liberty does NOT include corporate activity or the right to do business (Edwards Books)
• The regulation of trades and professions should be deemed as restraints on economic liberty that are
OUTSIDE the scope of s.7 (Prostitution Reference [1990]).
Political liberty
• “Liberty” does NOT INCLUDE freedom of conscious and religion, or expression, freedom of assembly or
association, the right to vote and be a candidate for election or the right to travel (Hogg, 47-11).
Security of the Person
• In Canadian Foundations for Children, Youth and the Law v. Canada [2004] 1 S.C.R. 76, the Criminal
Code provision, which provides a defence to an assault charge for teachers and parents who employ
“reasonable” force “by way of correct” against children in their care, was challenged. The Court found that
the provision negatively impacted the security of the person of children to whom it was applicable (para. 3).
However, the provision was upheld on the premise there was no violation of the principles of fundamental
justice.
• In R. v. Morgentaler (No. 2) [1988] 1 S.C.R. 30, the Court removed limitations on abortion, as these were
considered unconstitutional. It was demonstrated by evidence that the condition of approval by a therapeutic
abortion committee limited access to the abortion procedure and in turn resulted in delays in treatment. This
consequently increased the risk to the health of women. The Court concluded that the peril to health that
was inflicted by the law was a deprivation of security of the person.
• “The extension of security of the person to include control over one’s body was confirmed in Rodriguez v.
British Columbia [1993] 3 S.C.R. 519” (Hogg, 47-13).
• Singh v Canada (Minister of Employment and Immigration) [1985] 1 S.C.R., 177, 207 per Wilson J.: it has
been insinuated that “security of the person” includes the economic ability to meet basic human needs.
Fundamental Justice
Procedure and substance
• A deprivation of life, liberty and security of the person is a breach of s.7 of the Charter only if the
deprivation is not in accordance with “the principles of fundamental justice" (i.e. deprivation DOES NOT
equate to a breach of s.7 if principles of fundamental justice upheld).
• “The principles of fundamental justice are not limited to procedural matters but also include substantive
principles of fundamental justice (Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at paragraphs 62-67).
The principles of fundamental justice are to be found in the basic tenets of our legal system, including the
rights set out in sections 8-14 of the Charter (Re B.C. Motor Vehicle Act, supra, at paragraphs 29-30) and
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the basic principles of penal policy that have animated legislative and judicial practice in Canada and other
common law jurisdictions (R. v. Lyons, [1987] 2 S.C.R. 309 at 327)” (Department of Justice).32
Definition of Fundamental Justice
• The Supreme Court has not been stable or consistent in describing the principles of fundamental justice as
the basic tenants of the legal system.
• In Cunningham v. Canada [1993] 2 S.C.R. 143, 152, McLachlin J. stated: “The…question is whether, from
a substantive point of view, the change in the law strikes the right balance between the accused’s interests
and the interests of society”. The Court held that Parliament struck “the right balance” between the
competing values.
• In Rodriguez v. British Columbia [1993] 3 S.C.R. 519, Sopinka J. asserted that the principles of
fundamental justice must be “fundamental in the sense that they would have general acceptance among
reasonable people” (Id., 607)
• In Malmo-Levine [2003] 3 S.C.R. 571, the Supreme Court disregarded the striking-balance approach; a new
three condition test was established: (1) the rule must be a “legal principle”, (2) there must be a “significant
societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and
(3) the rule must be capable of being “identified with sufficient precision to yield a manageable standard”.
What does the Department of Justice, Government of Canada website say?33
Whether a principle may be said to be a principle of fundamental justice will depend upon an analysis of the nature,
sources, rationale and essential role of that principle within the judicial process and in our legal system as it evolves
(Re B.C. Motor Vehicle Act, supra; Chiarelli, supra at 732). In order to be a principle of fundamental justice, a
rule or principle must be (1) a legal principle (2) about which there is significant societal consensus that it is
fundamental to the way in which the legal system ought fairly to operate, and (3) it must be identified with
sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or
security of the person. (Malmo-Levine, supra at paragraph 113; Canadian Foundation for Children, Youth and the
Law v. Canada (Attorney General), [2004] 1 S.C.R. 76 at paragraph 8)…The principles of fundamental justice find
their meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its
citizens (Canadian Foundation for Children, Youth and the Law).
The principles of fundamental justice must be approached with a careful consideration of context and will
vary according to the context in which they are raised (Chiarelli, supra, at 732-33; Cunningham, supra, at
152; Suresh, at paragraph 45). While achieving the “right balance” between individual and societal interests is
not in and of itself a principle of fundamental justice…determining the content and scope of the principles of
fundamental justice that apply in a given context to set the boundaries of the rights in question involves the
balancing of individual rights and societal interests (R. v. Mills, [1999] 3 S.C.R. 668 at paragraphs 6168; Malmo-Levine, supra, at paragraphs 98-99), particularly societal interests that “directly engage the
responsibility of judges ‘as guardian[s] of the justice system’” (Burns, supra at paragraph 71). Similarly, where the
rights of different parties are at issue (e.g., accused/complainant or parent/child), all must be considered in
determining what is in accord with the principles of fundamental justice (R. v. Darrach, [2000] 2 S.C.R. 443).
Absolute and Strict Liability
a) Categories of offences
• In the pre-Charter case of R v City of Sault Ste. Marie [1978] S.C.R. 1299, 1325-1326, the Supreme Court
split offences into three categories (Hogg, 47-30):
1) Offences of “absolute liability”, in which the offence consists simply of doing the prohibited act. There
is no requirement of fault, mens rea or negligence. Defendant could be convicted even if he or she had
no intention of breaking the law and also exercised reasonable care to avoid doing so.
2) Offences of “strict liability”, in which the offence again consists simply of doing the prohibited act;
however, it is a defence if the defendant proves to the civil standard of the balance of probabilities that
32
Government of Canada, Department of Justice: Section 7 – life liberty and security of the person. https://www.justice.gc.ca/eng/csj-sjc/rfcdlc/ccrf-ccdl/check/art7.html
33
Ibid.
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he or she exercised reasonable care (due diligence) to avoid committing the offence. The accused is
liable only if he or she cannot prove the exercise of reasonable care.
3) Offences of “mens rea”, in which the offence consists not only of doing the prohibited act, but of doing
so with the guilty intent of intending to break the law (or being reckless as to whether or not the law
would be broken).
b) Absolute liability offences
• An offence of absolute liability that carries the penalty of imprisonment is an infringement of s.7 (B.C.
Motor Vehicle Reference (1985) 2 S.C.R. 486).
• In R. v. Hess (1990) 2 S.C.R. 906, the Criminal Code statutory rape provision was challenged. Because this
offence did not provide a defence for the accused to demonstrate that he reasonable believed his act to be
innocent, it was an absolutely liability offence. It carried a penalty of imprisonment and as such, it was held
to be a violation of fundamental justice in breach of s.7.
• The case of R. v. Pontes (1995) 3 S.C.R. 44 made it clear that s.7 is NOT applicable “to an offence that
carries only the penalty of a fine, even a very large fine, because in that case ‘liberty’ is not affected.
Therefore, so long as no sentence of imprisonment is provided for, it is still possible for parliament or the
Legislatures to create offences of absolute liability” (Hogg, 47-32).
c) Strict liability offences
• In R. v. Wholesale Travel Group (1991) 3 S.C.R. 154, the Supreme Court held the offence of false or
misleading advertising in Competition Act was not a true crime, but instead, simply a “regulatory” offence.
• Cory J explained the traits of a “true crime” was that “inherently wrongful conduct” was punished ([1991] 3
S.C.R. 154, 219).
• A regulatory offence was tailored to determine standards of conduct for activity that could be injurious to
others; it did not infer moral blameworthiness
• In terms of a “regulatory offence”, including those that carry the penalty of imprisonment, fundamental
justice does not necessitate that mens rea be an element of the offence. Fundamental justice is fulfilled if
there is a defence of reasonable care (due diligence), and the burden of demonstrating reasonable care may
be placed on the defendant” (Levis v. Tetreault [2006] 1 S.C.R. 420, para. 22). However, with “true crimes”,
fundamental justice mandates that mens rea be an element of the offence. Further, the onus of proving mens
rea is on the Crown.
• Recap: with strict liability offences the defence of due diligence is available (accused must show they took
“all reasonable care”); with absolute liability offences no due diligence/reasonable care defence exists.
d) True Crime – Offences of “mens rea”
Murder
• In R. v. Vaillancourt (1987) 2 S.C.R. 636, the Supreme Court said that “some level of mens rea” in regard to
the victim’s death was necessary for the crime of murder.
• In R. v. Martineau [1990] 2 S.C.R. 633, it was held that subjective foreseeability was required by s.7. Thus,
it is subjective (not objective) mens rea that is required for the offence of murder to be fulfilled.
• What is the difference between subjective and objective mens rea? With subjective, we are looking at the
mind of the accused. On the other hand, with objective we ask what the reasonable person would have done
in a similar situation (we do not look to the mind of the accused).
Unforeseen Consequences
• There are Criminal Code offences in which the ramifications of an unlawful act prescribe the sternness of
the punishment for which the accused is liable.
• Under s.7 “it is acceptable to distinguish between criminal responsibility for equally reprehensible acts on
the basis of the harm that is actually caused” (R. v. DeSousa (1992) 2 S.C.R., 944, 967).
Involuntary acts
a) Automatism
• It is against the principles of fundamental justice to hold a person guilty of a crime if they did not
voluntarily commit the actus reus element (R v Parks; R v Swaby)
• In R. v. Parks [1992] 2 S.C.R. 871, the accused woke up in the middle of the night and drove to his in-law’s
house. He parked, went into their home, killed his mother-in-law and seriously injured his father-in-law. he
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•
raised the defence of automatism arguing he was sleepwalking and thus did not voluntarily commit the
crimes. He was successful and thus, acquitted.
In R. v. Stone [1999] 2 S.C.R. 290, the accused was provoked by his wife and stabbed her to death. He was
acquitted of murder and found guilty of manslaughter. He appealed arguing that he should have been fully
acquitted, as “the taunting by his wife was a psychological blow that had induced a state of (non-insane)
automatism that freed him from criminal responsibility for the stabbing of his wife” (Hogg, 47-46.1). the
Court found that the defence was not available to him. A “normal” person would have not reacted the same
as he did in the circumstances.
b) Duress
• Section 17 of the Criminal Code provides that duress is an excuse for the commission of an offence
• In other words, if you are forced to commit a crime (“under compulsion”), then you will be excused from
criminal liability (i.e., someone puts a gun to your head and tells you to rob a store).
• The compulsion has to take the form of “threats of immediate death or bodily harm from a person who is
present when the offence is committed” (s.17 of the Criminal Code).
• In R. v. Ruzic [2001] 1 S.C.R. 687, the Supreme Court held that it would be a violation of the principles of
fundamental justice to convict a person of a crime when that individual had not acted voluntarily. The s.17
requirements of immediacy and presence were struck down as unconstitutional, as they had the potential of
convicting a person who had not acted voluntarily.
c) Intoxication
• In R. v. Daviault [1994] 3 S.C.R. 63, the Supreme Court held that s.7 necessitates that extreme intoxication
be a defence to a criminal charge. Prior to this case, an accused could not escape liability for crimes of
general intent by pleading intoxication. The Court held the Charter mandated that if self-induced
intoxication was so extreme it was similar to automatism, then the accused should escape criminal liability.
What violates the Principles of Fundamental Justice? Note: Peter Hogg does not divide substantive and
procedural fundamental justice. However, it will be much easier to separate and analyze them in this manner.
SUBSTANTIVE FUNDAMENTAL JUSTICE
Overbroad Laws
• In R. v. Heywood [1994] 3 S.C.R. 761, the Supreme Court developed the doctrine of “overbreadth”, which
is applicable to a law that is more expansive than necessary to achieve its purpose.
• “Overbreadth: a breach of the principles of fundamental justice and therefore, a basis for a finding of
unconstitutionality in a law that affects life, liberty or security of the person” (Hogg, 47-52).
• In Heywood, the Supreme Court held the purpose of the law was to protect the safety of children. Cory J
recognized that a limitation on liberty for the purpose of protecting the safety of children would NOT
amount to a violation of fundamental justice. However, a law that restrained liberty more than necessary to
achieve its purpose would be a violation of fundamental justice due to “overbreadth”.
• The law in this case was deemed to be overbroad, and as such, it offended the principles of fundamental
justice. It could not be saved by s.1, as it would fail the minimum impairment branch of the s.1 analysis due
to its overbreadth.
• Overbreadth is not the same as vagueness; a law could be perfectly transparent and clear (i.e. not vague) and
still employ means that go further than necessary to achieve the law’s purpose (i.e. overbroad).
• Obviously, it is possible for an overly vague law to also be excessively broad and thus fail both conditions.
• Overbreadth deals with laws that are rational in part but that overreach and capture some conduct that bears
no relation to the legislative objective (Bedford; Heywood; R. v. Clay [2003]; Demers)34
Disproportionate Laws
• In Malmo-Levine, the Supreme Court developed a novel doctrine of “disproportionality”, which is a
violation of the principles of fundamental justice, and hence, a basis for a finding of unconstitutionality in a
law that impacts life, liberty or security of the person
34
Government of Canada, Department of Justice: Section 7 – life liberty and security of the person. https://www.justice.gc.ca/eng/csj-sjc/rfcdlc/ccrf-ccdl/check/art7.html
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•
•
The doctrine obliges the Court to decide (1) whether a law pursues a “legitimate state interest”; and, if it
does, (2) whether the law is grossly disproportionate to the state interest (para. 143).
“Gross disproportionality targets laws that may be rationally connected to the objective but
whose effects are so disproportionate that they cannot be supported. Gross disproportionality applies only
in extreme cases where “the seriousness of the deprivation is totally out of sync with the objective of the
measure” (Bedford; Canada (Attorney General) v. PHS Community Services Society [2011]; Malmo).35
Arbitrary Laws
• McLachlin C.J. and Major J. in Chaoulli v Quebec (2005) 1 S.C.R. 791, found that the Quebec law banning
private health insurance breached the principles of fundamental justice, as it was “arbitrary”. They
suggested a fairly different test from disproportionality test established in Malmo. The judges said that a law
is arbitrary if it “lacks a real connection on the facts to the purpose the law is said to serve” (para. 134).
• The challenged law in Chaoulli was found to be arbitrary because the evidence demonstrated other
developed nations with universal public health care plans allowed parallel access to private care without
injury or damage to public health system
Vague Laws
• A vague law breaches the principles of fundamental justice, which triggers an infringement of s.7, if the law
is a deprivation of life, liberty and security of the person.
• A vague law offends two values that are fundamental to the legal system (Hogg, 47-60.1):
(1) The law does not provide fair notice to persons of what is prohibited, which makes it difficult
for them to comply with the law; AND (2) The law does not provide clear standards for those
entrusted with enforcement, which may lead to arbitrary enforcement.
• In the Prostitution Reference case, the Court, while accepting the ban was “broad and far reaching”, refuted
that it was so vague that a court could not give “sensible meaning” to its terms (Id., 1160).
• Department of Justice: Vagueness offends the principles of fundamental justice where the law, considered
in its full interpretative context, is so lacking in precision that it does not provide sufficient guidance for
legal debate as to the scope of prohibited conduct or of an “area of risk”…The doctrine of vagueness is
directed at ensuring fair notice to citizens and limiting enforcement discretion of officials. (Nova Scotia
Pharmaceutical; Canadian Foundation for Children, Youth and the Law at paragraphs 15-18).36
Wrong Laws
• In R. v. Gamble [1988] 2 S.C.R. 595, the accused was tried and convicted under the Criminal Code
provisions in force at the time of the trial. However, this was a mistake, as these provisions were not in
force when she actually committed the offence. The Supreme Court held it was a basic tenet of any legal
system “that an accused must be tried and punished under the law in force at the time the offence is
committed” (Id., 647).
PROCEDURAL FUNDAMENTAL JUSTICE
What does the Department of Justice say?37
The principles of fundamental justice incorporate at least the requirements of the common law duty of procedural
fairness (Singh; Lyons; Suresh; Ruby). They also incorporate many of the principles set out in sections 8-14 of
the Charter (Re B.C. Motor Vehicle Act, at paragraphs 29-30). Context is particularly important with respect to
procedural fundamental justice — the more serious the infringement of life, liberty and security of the person, the
more rigorous the procedural requirements (Suresh, paragraph 118; Charkaoui (2007), paragraph 25; Charkaoui v.
Canada (Citizenship and Immigration, 2008 SCC 38, at paragraphs 53-58). The protections are generally more
stringent in the criminal law context than in other areas of law (Chiarelli, at 743; Ruby at paragraph 39). However,
the guiding question is always the severity of the impact on protected interests rather than a formal distinction
between the different areas of law (Charkaoui (2008), at paragraph 53).
35
Ibid.
Ibid.
Government of Canada, Department of Justice: Section 7 – life liberty and security of the person. https://www.justice.gc.ca/eng/csj-sjc/rfcdlc/ccrf-ccdl/check/art7.html
36
37
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Right to Silence
• In R. v. Herbert (1990) 2 S.C.R. 151, the accused was arrested; he retained a lawyer and informed the police
he did not desire to make a statement. He was put into custody with an undercover cop who started a
conversation with him. The accused made an incriminating statement. The Supreme Court found the
statement was obtained in violation of the Charter.
• In R v Singh [2007] 3 S.C.R. 405, Charron J. held that the right to remain silent did not include “the right
not to be spoken to by state authorities” (para. 28). Note that in Herbert the accused did NOT KNOW he
was speaking with a person in authority.
• Charron J. distinguished the right to silence under s.7 from right to counsel under s. 10(b): “The right to
counsel is outside the control of an accused who is in police custody; the accused is dependent on the help
of the police to exercise the right. This explains why the right to counsel has been interpreted as requiring
the police to refrain from questioning the accused until he has had a reasonable opportunity to contact
counsel. But where, as here, the accused has contacted counsel, the right to silence under s.7 should not be
interpreted as continuing to preclude police questioning. The accused has an operating mind, and of his own
free will may change his mind about whether to talk to the police. That change of mind may take place as
the result of police persuasion, provided the police conduct does not deprive him of choice” (Hogg, 47-69).
Fair trial
The right to a fair trial
• Clearly, the principles of fundamental justice necessitate a person accused of a crime receive a fair trial. In
this regard s.7 overlays with s. 11(d), which also guarantees to an individual charged with an offence a fair
and public hearing by an independent and impartial tribunal.
• Nonetheless, s.7 is broader than s. 11(d), as s.7 is also applicable to civil and administrative proceedings
where they interfere with life, liberty or security of the person.
• In New Brunswick v. G. (J.) 3 S.C.R. 46, the principles of fundamental justice necessitated that a fair
hearing be granted; this in turn required that the parent be given representation by state-funded counsel.
Full answer and defense
• R. v. Seaboyer [1991] 2 S.C.R. 577 held that both sections 7 and 11(d) guaranteed to an accused “the right
to present full answer and defence”.
• In R. v. Cook [1997] 1 S.C.R. 1113, the Crown failed to call the victim of the assault as a witness and the
accused contended that this was a duty of the Crown at common law (i.e. to call the victim). The Court
refuted the argument stating that the Crown obtained a discretion to select the witnesses it called and that
the accused’s right to make full answer and defence was safeguarded by his right to cross-examine those
witnesses the Crown actually did call.
Pre-trial disclosure by the Crown
• In R. v. Stinchcombe [1991] 3 S.C.R. 326, “the Supreme Court held pre-trial disclosure by the Crown of all
information relevant to the conduct of the defence is a constitutional obligation, entailed by accused’s right
to make full answer and defence” (Hogg, 47-78). This duty is applicable not only to statements acquired
from witnesses that the Crown intends to call at trial, but also to statements acquired from individuals that
the Crown does not intend to call witnesses.
• Stinchcombe: Disclosure of information must be timely (it must be provided with enough time before the
trial to enable the defence to consider it properly)
Pre-trial disclosure by third parties
• In R. v. O’Conner [1995] 4 S.C.R. 411, the Court found that access to private records that are in the
possession of third parties could be essential to an accused’s right to make full answer and defence.
Nonetheless, this did not grant the accused an instant and automatic right of access to the records.
• The Court held that production must be governed by a process that strikes a suitable and proper balance
between full answer and defence and the privacy and equality rights of the witness. But how can that
balance be accomplished?
• The majority of the court stated: The defence must make an application to the trial judge for a disclosure
order and must prove on a balance of probabilities that the records are “likely relevant” to making full
answer and defence. If likely relevance is demonstrated, then the records must be produced into court, but at
this stage only for the private inspection of the judge.
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Syllabus Cases:
***
Canada (AG) v PHS Community Services Society (2011) SCC 44, [2011] 3 SCR 134
• In 2003, Insite, North America’s first supervised drug injection site, was opened.
• S. 4(1) and 5(1) of the Controlled Drugs and Substances Act (CDSA) banned the possession and
trafficking of controlled substances; as such, to operate, Insite was obliged to apply for an exemption for
medical and scientific purposes from the CDSA. This is due to the fact that people who would attend the
sites to self-inject themselves would obviously be carrying (possessing) drugs. These people would fear
attending the facilities if they thought they would be charged with possession or trafficking.
• The federal Minister of Health allowed the exemptions. In 2008, Minister of Health failed to extend the
exemption. In response, Insite launched a court challenge against the federal government.
Held:
• The trial judge held s. 4(1) and 5(1) of the CDSA violated Insite’s s.7 Charter rights, as they “arbitrarily
prohibited the management of addiction and its associated risks” and could not be saved by s.1 (since the
act could not be saved, the drugs were permitted in the Insite facility). Trial judge thus granted Insite a
constitutional exemption.
• The Supreme Court found s. 4(1) and 5(1) of the CDSA were valid exercises of the federal law criminal
power, per Malmo-Levine, where the court held that “protection of public health and safety from the
effects of addictive drugs is a valid criminal law purpose”.
• The court held the Minister's failure to grant the exemption limited Insite users' s 7 Charter rights and
breached the principles of fundamental justice. The failure to exempt Insite was arbitrary, as it
undermined the CDSA's purpose, namely, the "maintenance and promotion of public health and safety".
• The failure was also grossly disproportionate in that it denied Insite's services, which had not had any
"discernable negative impact on the public safety and health objectives of Canada during its eight years of
operation".
• The Court did not consider if the Minister's failure to grant an exemption could be saved by s 1 of the
Charter, however, the Court found there would have been no rational connection between the Minister's
failure to grant the exemption and the CDSA's stated purpose. The court exercised its s.24(1) Charter
power and ordered via mandamus the Minister to grant Insite the exemption.
• The court noted the Minister ought to grant future exemption requests when the injection facility would
"decrease the risk of death and disease, and there is little or no evidence that it will have a negative impact
on public safety".
• Para [40]: “The conclusion that the Minister has not exercised his discretion in accordance with the
Charter in this case is not a licence for injection drug users to possess drugs wherever and whenever they
wish. Nor is it an invitation for anyone who so chooses to open a facility for drug use under the banner of
a “safe injection facility”. The result in this case rests on the trial judge’s conclusions that Insite is
effective in reducing the risk of death and disease and has had no negative impact on the legitimate
criminal law objectives of the federal government. Neither s. 56 of the CDSA nor s.7 of the Charter
require condonation of crime. They demand only that, in administering the criminal law, the state not
deprive individuals of their s.7 rights to life, liberty and security of the person in a manner that
violates the principles of fundamental justice.”
***
Canada (AG) v Bedford (2013) SCC 72, [2013] 3 SCR 1101
• The applicants argued Canada’s prostitution laws were unconstitutional. The Criminal Code banned
public communication for purposes of prostitution, operating a bawdy house or living off the avails of
prostitution, even though prostitution itself is legal.
• The applicants claimed the laws deprive sex works of their right to security by compelling them to
work secretly. The federal and provincial governments contended that prostitution is exploitative and
harmful to the community.
Held:
• The Supreme Court struck down Canada’s remaining prostitution laws, finding bans on street soliciting,
brothels and people living off the avails of prostitution create severe dangers for vulnerable women.
• Chief Justice Beverly McLachlin: “Parliament has the power to regulate against nuisances, but not at the
cost of the health, safety and lives of prostitutes”.
• “The focus is on security of the person, not liberty, for three reasons:
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•
•
•
•
•
•
(1) The Prostitution Reference decided that the communicating and bawdyhouse provisions engage liberty
and it is binding on this point. The security of the person argument is a novel issue and an important
reason why the application judge was able to revisit the Prostitution Reference.
(2) It is not clear that any of the applicants’ personal liberty interests are engaged by the living on the
avails provision; rather, they have pleaded that they fear that it could apply to their employees or loved
ones.
(3) It seems that the real gravamen of the complaint is not that breaking the law engages the applicants’
liberty, but rather that compliance with the law infringes the applicants’ security of the person.”
Attorney General framed the Charter argument only within the framework of s.7, so the Court found it
unnecessary to conduct a full s.1 analysis, but a minimal analysis found the provision could not be saved.
Bedford extended s.7 significantly in the relatively new principles of arbitrariness, overbreadth and
gross proportionality.
Arbitrariness asks if there is a direct connection between the purpose of the law and the impugned effect
on the individuals, in the sense that the effect on the individuals bears some relation to the law’s purpose
Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no
relation to its purpose. In this sense, the law is arbitrary in part.
Arbitrariness and overbreadth (Chaoulli v Quebec) have been clarified to proclaim that the effect of a
law maybe inconsistent with the objective, but the evidence must ultimately demonstrate that there is no
connection between the effect and purpose of the law, causing the law to violate basic norms
Gross disproportionality asks whether the law’s effect on life, liberty or security of the person are so
grossly disproportionate to its purposes that they cannot be rationally supported. Under s.7, it does not
consider the beneficial effects of the law for society – it balances the negative effect on individual against
purpose of the law, not against the societal benefit that might flow from the law
Summary of the Bedford judgment:
s. 210 (keeping or being found in a common bawdy house): The SCC held that the bawdy house law violates sex
workers’ constitutionally protected right to security of the person and is struck down. The Court found that this law
prevents sex workers from working a fixed location that is safer than working on the street or meeting clients at
different locations. (Para 64). “The harms identified by the courts are grossly disproportionate to the deterrence of
community disruption that is the object of the law. Parliament has the power to regulate against nuisances, but not at
the cost of the health safety and lives of prostitutes. A law that prevents street-prostitutes from resorting to a safe
haven such as Grandma’s House while a suspected serial killer prowls the streets is a law that has lost sight of its
purpose.” (Para 136)
s. 212(1)(j) (living on the avails of prostitution): The SCC held that the living on the avails provision violates sex
workers’ constitutionally protected right to security of the person and is struck down. The SCC writes that the law is
overbroad in that: “The law punishes everyone who lives on the avails of prostitution without distinguishing
between those who exploit prostitutes (such as controlling and abusive pimps) and those who could increase the
safety and security of prostitutes (for example, legitimate drivers, managers, or bodyguards.” (Para 142).
S. 213(1)(c) (communicating in public for the purpose of prostitution): The SCC held that communication law
violates sex workers’ constitutionally protected right to security of the person and is struck down. In the decision the
court writes: “By prohibiting communication in public for the purpose of prostitution, the law prevents prostitutes
from screening clients and setting terms for the use of condoms or safe houses. In these ways, it significantly
increases the risk they face.” (Para 71). In this way, the harms caused by the law are grossly disproportional to
intended objective of the law. “If screening could have prevented one woman from jumping into R. Pickton’s car,
the severity of the harmful effects is established”. (Para 158)
***
Carter v Canada (Attorney General) (2015) SCC 5 (CanLII)
• Prohibition of assisted suicide was challenged as contrary to the Canadian Charter of Rights and Freedoms
Held:
• The Court stated: “It is a crime in Canada to assist another in ending her own life. As a result, people who
are grievously and irremediably ill cannot seek a physician’s assistance in dying and may be condemned to
a life of severe and intolerable suffering. A person facing this prospect has two options: she can take her
own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural
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•
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•
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•
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causes. The choice is cruel”.
The Court found that section 241(b) and section 14 of the Criminal Code unjustifiably infringe s.7 of the
Charter, and that this violation is not saved under section 1.
Insofar as they ban physician-assisted dying for competent adults who seek such assistance as a result of a
grievous and irremediable medical condition that causes enduring and intolerable suffering, ss.241 (b) and
s.14 of the Criminal Code deprive these adults of their right to life, liberty and security of the person under
s.7 of the Charter.
The right to life is engaged where the law or state action imposes death or an increased risk of death on a
person, either directly or indirectly.
Here, the prohibition deprives some individuals of life, as it has the effect of forcing some individuals to
take their own lives prematurely, for fear that they would be incapable of doing so when they reached the
point where suffering was intolerable.
The rights to liberty and security of the person, which deal with concerns about autonomy and quality of
life, are also engaged. An individual’s response to a grievous and irremediable medical condition is a matter
critical to their dignity and autonomy.
The prohibition denies people in this situation the right to make decisions concerning their bodily
integrity and medical care and thus trenches on their liberty. And by leaving them to endure
intolerable suffering, it impinges on their security of the person.
The prohibition on physician-assisted dying infringes the right to life, liberty and security of the
person in a manner that is not in accordance with the principles of fundamental justice.
The object of the prohibition is not, broadly, to preserve life whatever the circumstances, but more
specifically to protect vulnerable persons from being induced to commit suicide at a time of weakness.
Since a total ban on assisted suicide clearly helps achieve this object, individuals’ rights are not deprived
arbitrarily.
However, the prohibition catches people outside the class of protected persons.
It follows that the limitation on their rights is in at least some cases not connected to the objective and
that the prohibition is thus overbroad. It is unnecessary to decide whether the prohibition also violates
the principle against gross disproportionality.
SUMMARY OF TEST/ANALYSIS (Department of Justice)38
Section 7 involves a two-step analysis:
1. Is there an infringement of one of the three (3) protected interests: a deprivation of life, liberty or security of
the person?
2. Is the deprivation in accordance with the principles of fundamental justice? Conduct test set out in the case
of R v Malmo-Levine (2003)
STEP 1: Is the claimant covered under “Everyone”? remember, all persons physically present in the country will
benefit from the protection of section 7. Corporations do not have individual rights protected under section 7 and
thus, are not able to claim the benefit of section 7 in the same manner as individuals can (Irwin Toy Ltd.)
After you have established the claimant is entitled to protection, move on to identifying which of the three protected
interests has been breached (life, liberty or security of the person). A claimant must establish a “sufficient causal
connection” between the impugned government action or law and the limit on life, liberty or security of the person.
Although the government action need not be the only or the dominant cause of the limit, there must be a real, as
opposed to a speculative link. This standard is satisfied by a reasonable inference, drawn on a balance of
probabilities (Bedford v. Canada (A.G.) [2013] 3 S.C.R. 1101 at para. 76)
STEP 2: This second step can be divided down into two steps: a) identify the relevant principle or principles of
fundamental justice and then b) determine whether the deprivation has occurred in accordance with such principles.
(R. v. Malmo-Levine [2003] 3 S.C.R. 571 at para 83; R. v. White [1999] 2 S.C.R. 417 at para 38; R. v. S. (R.J.) [1995]
1 S.C.R. 451. There is no independent right to fundamental justice. Therefore, there will be no violation of section 7
if there is no deprivation of life, liberty or security of the person (R. v. Pontes [1995] 3 S.C.R. 44 at para. 47).
The principles of fundamental justice are not limited to procedural matters but also include substantive principles
38
Department of Justice, Government of Canada: Section 7 – life, liberty and security of the person. https://www.justice.gc.ca/eng/csj-sjc/rfcdlc/ccrf-ccdl/check/art7.html
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of fundamental justice (Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at paragraphs 62-67). The principles of
fundamental justice are to be found in the basic tenets of our legal system, including the rights set out in sections 814 of the Charter (Re B.C. Motor Vehicle Act, supra, at paragraphs 29-30) and the basic principles of penal policy
that have animated legislative and judicial practice in Canada and other common law jurisdictions.
Substantive fundamental justice:
• The balancing of individual and societal needs and interests within section 7 of the Charter is relevant and
significant when explaining a certain substantive principle of fundamental justice. Nonetheless, societal
matters of public policy (i.e. health care costs) which are irrelevant to a principle of fundamental justice
should be taken into account under section 1 (Malmo-Levine; Bedford).
• The principles of fundamental justice include the principles against arbitrariness, overbreadth and gross
disproportionality.
• “A deprivation of a right will be arbitrary and thus unjustifiably limit section 7 if it “bears no connection to”
the law’s purpose (Bedford, supra, at paragraph 111; Rodriguez, supra at 594-95; Malmo-Levine, supra at
paragraph 135; Chaoulli, supra at paragraphs 129-30 and 232; A.C., supra, at paragraph 103). The fact that
a government practice is in some way unsound or that it fails to further the government objective as
effectively as a different course of action would is not sufficient to meet the claimant’s burden of
establishing a lack of rational connection on a balance of probabilities (Ewert v. Canada, (2018) SCC 30 at
paragraph 73).”39
• Vagueness will offend the principles of fundamental justice in situations wherein the law is so deficient of
any precision that it does not offer sufficient and adequate direction for legal debate as to the scope of the
banned conduct or “area of risk” (R v Nova Scotia Pharmaceutical Society [1992] 2 S.C.R. 606).
Procedural fundamental justice:
• “The principles of fundamental justice incorporate at least the requirements of the common law duty of
procedural fairness (Singh). They also incorporate many of the principles set out in sections 8-14 of the
Charter (Re B.C. Motor Vehicle Act). Context is particularly important with respect to procedural
fundamental justice – the more serious the infringement of life, liberty and security of the person, the more
rigorous the procedural requirements (Suresh; Charkaoui v Canada)”.40
• The directing and guiding inquiry is the seriousness of the impact on protected interests.
• In deciding the procedural protections that should be provided, apply the Baker factors:
“(1) the nature of the decision made and the procedures followed in making it, that is, "the closeness of the
administrative process to the judicial process"; (2) the role of the particular decision within the statutory
scheme; (3) the importance of the decision to the individual affected; (4) the legitimate expectations of the
person challenging the decision where undertakings were made concerning the procedure to be followed;
and (5) the choice of procedure made by the agency itself. This list of factors is non-exhaustive in
determining the procedures demanded by the principles of fundamental justice (Baker v. Canada (Minister
of Citizenship and Immigration)); Suresh; Charkaoui (2008)).”
Section 7 Analysis vs Oakes Test (Department of Justice, Section 7- Life, liberty and security of the person)
• Supreme Court has repeatedly stated that infringements of section 7 “are not easily saved by section
1” and has in some cases suggested that section 1 justification may only be possible “in cases arising out of
exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like” (Reference
Re section 94(2) of the Motor Vehicle Act (B.C.); Health and Community Services) v. G.
(J.), [1993]; Heywood; Burns; Suresh; Ruzic; Charkaoui (2007))
• However, in other cases, the Court has emphasized the differences between section 7 and section 1,
suggesting that section 1 justification may be possible where the law serves the broader societal values
underlying a free and democratic society, such as promoting respect for the inherent dignity of the human
person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for
cultural and group identity, and faith in social and political institutions which enhance the participation of
individuals and groups in society (Bedford; Mills; Malmo-Levine)41.
39
Ibid.
Ibid.
Government of Canada, Department of Justice: Section 7 – Life, liberty and security of the person, https://www.justice.gc.ca/eng/csj-sjc/rfcdlc/ccrf-ccdl/check/art7.html
40
41
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23. EQUALITY RIGHTS
Canadian Bill of Rights
• By virtue of s.1(b), the Canadian Bill of Rights guarantees “equality before the law”. This clause is ONLY
applicable to the federal Parliament. On April 17, 1985, it was superseded by s.15 of the Charter of Rights,
which is applicable to the federal Parliament and the provincial Legislatures.
• On only one occasion, the Supreme Court held the equality clause in s. 1(b) had the effect of invaliding a
statutory provision: in R v Drybones [1970] S.C.R. 282, the Court struck down a provision of the Indian Act
that made it an offence for “an Indian” to be intoxicated off a reserve.
• With the birth of s.15 of the Charter, s. 1(b) of the Canadian Bill of Rights, though still in force, has been
rendered irrelevant.
SECTION 15 OF THE CHARTER
15.
(1) Every Individual is equal before and under the law and has the right to the equal protection and
equal benefit of the law without discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has its object the amelioration
of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race,
national or ethnic origin, colour, religion, sex, age or mental or physical disability.
• S. 15 bestows its right on an “individual”. Equality is conveyed in four diverse ways: equality before the
law, equality under the law, equal protection of the law and equal benefit of the law.
• Subsection 2 permits the formulation of affirmative action programmes that have the purpose of bettering
and ameliorating the conditions of disadvantaged groups.
• The purpose of section 15: “[t]he promotion of equality entails the promotion of a society in which all are
secure in the knowledge that they are recognized at law as human beings equally deserving of concern,
respect and consideration” (R. v. Kapp [2008] 2 S.C.R. 483 at para. 15)
Application of s.15
Individual: Benefit of the equality rights in s.15 is conferred upon “an individual”; excludes corporation
“Law” in s.15
• The Court asserted the requirement of “law” in s.15 is satisfied by conduct taken under the authority of law.
• Section 15 applies to the same range of governmental action as other Charter rights.
Private Action
• S.15 DOES NOT apply to private acts of discrimination (i.e., employer hires only male employees)
• However, in all Canadian jurisdictions, Human Rights Codes have been enacted that ban private acts of
discrimination in employment, accommodation and the provision of services (Tarnopolsky and Pentney).
• The Human Rights Codes are merely statutes that DO NOT possess constitutional status.
• The Human Rights Codes, as statutes, are themselves subject to the Charter of Rights (R.G. Juriansz,
“Section 15 and the Human Rights Code” in Beaudoin (ed.), Your Clients and the Charter (1988), ch.12).
EQUALITY
Four equalities of s.15
• Section 15 states that every individual is “equal before and under the law and has the right to the equal
protection and equal benefit of the law”
• The motive for having four articulations of the notion of equality was to reverse the limiting interpretations
placed by the Supreme Court on the phrase “equality before the law”, which is used in s. 1(b) of the
Canadian Bill of Rights.
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Absolute Equality
• A guarantee of equality cannot imply that the law has to treat everyone equally.
• Think about the difference between equity and equality. Handicap parking spots are for individuals who are
not as physically able and require accessible parking. We cannot say everyone is equal and so should be
able to use handicap spots.
• Also consider the Income Tax Act which imposes a higher rate on people who make higher incomes. In
order to create a more equal playing field, we need to impose sometimes unequal measures. Aboriginals in
some provinces can hunt and fish all year round. Non-aboriginals do not have the same entitlement.
Formal and Substantive Equality
• The most common criticism of the similarly situated definition of equality is that it can disguise
discrimination that happens indirectly rather than directly
• A theory that covers the direct case is often described as “formal equality”.
• Robert Wintemute (Sexual Orientation & Human Rights) acknowledges formal equality is not sufficient. It
is also essential to guarantee “substantive equality” (a theory of equality that captures indirect and direct
discrimination)
Listed or Analogous Grounds
Requirement of a listed or analogous ground
• The reference in subsection (2) to “disadvantaged individuals or groups” insinuated that the function of s.15
was to correct discrimination against disadvantaged individuals or groups
• These traits of s.15 intimated that the proper and accurate role of s.15 was not to eliminate all unfairness
from our laws, but instead to purge discrimination based on immutable personal features.
***
Andrews v Law Society of British Columbia (1989) 1 S.C.R. 143 (CanLII)
• This was the first s.15 case to reach the Supreme Court of Canada. It was a challenge to the
statutory requirement of British Columbia that members of the bar had to be Canadian Citizens.
Held:
• Court held this requirement was contrary to s.15 and that it was not saved by s.1.
• Discrimination is a distinction which, whether intentional or not but based on grounds relating to
personal characteristics of the individual or group, has an effect which imposes disadvantages not
imposed upon others or which withholds or limits access to advantages available to other members
of society. Distinctions based on personal characteristics attributed to an individual solely on the
basis of association with a group will rarely escape the charge of discrimination, while those based
on an individual's merits and capacities will rarely be so classed.
• The grounds of discrimination enumerated in S.15(1) are not exhaustive. Grounds analogous
to those enumerated are also covered and the section may be even broader than that…
• The words "without discrimination" require more than a mere finding of distinction between the
treatment of groups or individuals. These words are a form of qualifier built into s. 15 itself and
limit those distinctions which are forbidden by the section to those which involve prejudice or
disadvantage. The effect of the impugned distinction or classification on the complainant must be
considered. Given that not all distinctions and differentiations created by law are
discriminatory, a complainant under s.15(1) must show not only that he or she is not
receiving equal treatment before and under the law or that the law has a differential impact
on him or her in the protection or benefit of the law but must show in addition that the law is
discriminatory.
• A rule which bars an entire class of persons from certain forms of employment, solely on the
grounds of a lack of citizenship status and without consideration of educational and professional
qualifications or the other attributes or merits of individuals in the group, infringes s. 15 equality
rights. Section 42 of the Barristers and Solicitors Act is such a rule.
• Andrews two-part test:
1) Does the law create a distinction based on an enumerated or analogous ground?
2) Does this distinction create a disadvantage by perpetuating prejudice and stereotyping?
• The Court went on to hold that citizenship qualified as an analogous ground of discrimination.
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•
It was evident after Andrews that s.15 was a ban on discrimination, and that discrimination involved the
imposition of a disadvantage on an individual by reason of the individual’s possession of a trait that was
either enumerated in s.15 or was analogous to those listed in s.15.
Andrews Test (Does law create distinction based on enumerated or analogous ground?)
What is discrimination?
“Distinction…based on grounds relating to personal characteristics of the individual or group – imposing
burdens, obligations or disadvantages…or which withholds or limits access to opportunities, benefits and
advantages available to other members of society”
Enumerated and Analogous Groups
• Not exclusive… “Particularly”
• “Reflect most common and probably most socially destructive and historically practiced bases of
discrimination”
• How do we determine? “A personal characteristic that is immutable or changeable only at
unacceptable cost or personal identity”
Addition of analogous grounds
• Analogous grounds are grounds akin in some crucial way to the grounds listed in s.15, which are “race,
national or ethnic origin, colour, religion, sex, age or mental or physical disability”.
• “These are all personal characteristics of individuals that are unchangeable (or immutable), or at least
unchangeable by the individual except with great difficulty or cost. They are not voluntarily chosen by
individuals but are an involuntary inheritance. They describe what a person is rather than what a person
does” (Hogg, 55-22).
• The Supreme Court has held that an analogous ground is one based on “a personal characteristic that is
immutable or changeably only at unacceptable cost to personal identity” (Corbiere v Can. [1999] 2 S.C.R.
203, para. 13 per McLachlin and Bastarache JJ.)
• (1) The first analogous ground to be recognized was citizenship (Andrews v Law Society).
o La Forest J pointed out citizenship was a personal characteristic that is “typically not within the
control of the individual and, in this sense, is immutable” ([1989] 1 S.C.R. 143, 195).
• (2) The second was marital status.
o The recognition started in Miron v Trudel [1995] 2 S.C.R. 418 which concerned the statutory
provision of accident benefits to a “spouse”, a term that was defined as a person legally married to
the victim. In Nova Scotia v Walsh (2002) 4 S.C.R. 325, Court was unanimous marital status was
an analogous ground.
• (3) The third analogous ground was sexual orientation.
o In Egan v Canada (1995) 2 S.C.R. 513, the Court determined that sexual orientation was an
analogous ground. La Forest J described sexual orientation as “a deeply personal characteristic
that is either unchangeable or changeable only at unacceptable personal costs” (para. 5).
o Vriend v Alberta (1998) 1 S.C.R. 493, M v H (1999) 2 S.C.R. 203, and Little Sisters Book and Art
Emporium v Canada (2000) 2 S.C.R. 1120 confirmed the case.
o These decisions assisted the Supreme Court to establish and determine that the federal power over
“marriage” extended to same-sex marriage, a ruling which was trailed by legislation enacting a
novel national definition of marriage that no longer obliges or mandates that the couple be of
opposite sex (Re Same-Sex Marriage [2004] 3 S.C.R. 698; Civil Marriage Act, S.C. 2005, c.33)
• Thus far, these three grounds are the only ones that have been acknowledged.
Human Dignity
Ambiguity in Andrews
• “The simple and most common reading of Andrews was that a breach of s.15 occurred whenever a
disadvantage (a burden or withheld benefit) was imposed on the basis of a listed or analogous ground. That
finding would exhaust the role of s.15, and issues of the reasonableness or fairness of the challenged law
would be addressed under s.1” (Hogg, 55-26).
• McIntyre (Andrews) recommended something more than the breach of a enumerated or analogous ground is
necessary to constitute discrimination under s.15 (but failed to hint at what that something more might be).
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Impairment of Human Dignity
Law v Canada (1999) 1 S.C.R. 497
The Supreme Court established a new interpretation of s.15.
1. S.15 applied ONLY to legislative distinctions based on a listed or analogous ground
2. Discrimination in s.15 included an element additional to a distinction based on listed or
analogous ground
3. That additional element was an impairment of “human dignity”
•
Iacobucci J in Law failed to define “human dignity”, but he provided four “contextual factors” that were
helpful to the inquiry.
1. The existence of “pre-existing disadvantage, stereotyping, prejudice, or vulnerability”
2. Correspondence between the distinction and claimant’s characteristics or circumstances
3. The existence of ameliorative purposes or effects on other groups
4. The nature of the interest affected
After 1999, every case followed the Law analysis, UNTIL: R v Kapp (2008) 2 S.C.R. 483
• The Supreme Court repudiated the requirement of an impairment of human dignity, substituting it with what
appears to be the very comparable requirement of “discrimination”
• Problems with human dignity: it is ambiguous, confusing and onerous/arduous to equality claimants; a
failure to prove an impairment of human dignity is fatal to a claimant’s case.
Discrimination without human dignity
***
R v Kapp (2008) 2 S.C.R. 483
• McLachlin CJ and Abella J unexpectedly revisited the issue of human dignity in the s.15 jurisprudence.
They did not question that “human dignity is an essential value underlying the s.15 equality guarantee”,
but they recognized that “as a legal test” human dignity was “confusing and difficult to apply”, and
was “an additional burden on equality claimants, rather than the philosophical enhancement it
was intended to be” (paras 21-22).
• They held an impairment of human dignity should no longer be a required element of s.15 claim.
• Kapp presumes there is still exists an element of s.15 in addition to a disadvantage imposed on a listed
and analogous ground. However, that element is no longer referred to as “human dignity” – it has no
name other than “discrimination” – but it is identified by the same four contextual factors that
were formerly used to identify an impairment of human dignity (Hogg, 55-32).
• The four factors “should not be read literally as if they were legislative dispositions, but as a way of
focusing on the central concern of s.15 identified in Andrews – combating discrimination, defined in
terms of perpetuating disadvantage and stereotyping” (para. 24).
• Following Kapp, it is essential for an equality claimant to establish and demonstrate something in
addition to disadvantage based on a listed or analogous ground.
• “That additional element (discrimination) is no longer an impairment of human dignity; it is now the
perpetuation of disadvantage or stereotyping” (Hogg, 55-32).
Note: As you can see, there is a lot of back and forth of the law in regard to this particular Charter Right. A final
SUMMARY is provided at the end of this section in the notes to enable you to more succinctly and coherently
understand how to ascertain the infringement of equality and execute the test.
Disadvantage
Selection of comparator group
• To succeed in an equality challenge under s.15, the first step is for the claimant to determine that he has
grieved a disadvantage due to his or her possession of one of the traits enumerated in s.15 or an analogous
characteristic. The second step is for claimant to show the disadvantage amounts to “discrimination”.
• It is the condition of disadvantage that involves a comparison with others, that is, others that are comparably
or similarly situated to the claimant save (except) the presence of a listed or analogous personal trait.
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•
•
The existence of disadvantage mandates a comparison between the legal position of the claimant and that of
other individuals to whom the claimant may legitimately welcome comparison. This consists of two
inquiries (Hogg, 55-34.1):
(1) Is the group to which the claimant compares herself an appropriate comparator group.
(2) Once the appropriate comparator group has been chosen, a second question is presented, which
is if the distinction the law draws between the claimant and comparator group is disadvantageous
to the claimant.
The choice of the suitable comparator group comprises of identifying and finding the group that shares with
the claimant all the characteristics that qualify for the benefit or burden, save for a personal characteristic
that is listed/enumerated in or analogous to those listed in s.15 (Hogg, 55-34.1)
Withler v Canada (2011) 1 S.C.R 396 (CanLII)
Facts:
• The Court retracted from its insistence on finding and identifying an exact or precise comparator group
to which the claimant’s position was to be compared.
• The claimants were widows of deceased federal civil servants who died over the age of 65.
• Under the federal statutory pension plan, the spouse of a deceased plan member was entitled to a death
benefit (similar to life insurance policies).
• In the situation where the plan member died under the age of 65, the death benefit was a lump sum
equivalent to twice the annual salary of the plan member at the time of death.
• However, where the plan member had died over the age of 65, the death benefit was reduced by ten per
cent for each year by which the plan member had survived his 65th birthday.
• The claimants contended that they had suffered a disadvantage by reference to age.
• Their comparator group, namely, the spouses of plan members who had died under the age of 65 (and
received the full death benefit), perfectly matched the claimant group except for the claimed ground of
discrimination, which was the age of the plan member at the time of death.
Held:
• The central and sustained thrust of the Court’s s.15(1) jurisprudence has been the need for a substantive
contextual approach and a corresponding repudiation of a formalistic “treat likes alike” approach. An
analysis based on formal comparison between the claimant group and a “similarly situated” group
promotes formal, not substantive equality.
• A “mirror comparator group” analysis may become a search for sameness, may shortcut the substantive
equality analysis and may be difficult to apply…a mirror comparator approach can fail to identify — and
may, indeed, thwart the identification of — the discrimination at which s. 15 is aimed.
• What is required is an approach that takes account of the full context of the claimant group’s
situation, the actual impact of the law on that situation, and whether the impugned law
perpetuates disadvantage to or negative stereotypes about that group.
• The jurisprudence establishes a two-part test for assessing a s.15(1) claim: (1) Does the law create a
distinction that is based on an enumerated or analogous ground? and (2) Does the distinction create a
disadvantage by perpetuating prejudice or stereotyping?
• The claimant must establish that he or she has been denied a benefit that others are granted or carries a
burden that others do not, by reason of a personal characteristic that falls within the enumerated or
analogous grounds of s.15(1).
• It is not necessary to pinpoint a mirror comparator group. Provided that the claimant establishes a
distinction based on one or more of the enumerated or analogous grounds, the claim should proceed to
the second step of the analysis. This provides the flexibility required to accommodate claims based on
intersecting grounds of discrimination.
• At the second step, the question is whether, having regard to all relevant factors, the distinction the law
makes between the claimant group and others discriminates by perpetuating disadvantage or prejudice to
the claimant group, or by stereotyping it.
Case at bar:
• Since the Reduction Provisions at issue in this case are age-related, they constitute an obvious distinction
on an enumerated ground, but, because the age-based rules are, overall, effective in meeting the actual
needs of the claimants and in achieving important goals such as ensuring that retiree benefits are
meaningful, they do not violate s.15(1).
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•
•
Pension benefit schemes are designed to benefit a number of groups in different circumstances and with
different interests, and each element of the scheme must be considered in relation to the suite of benefits
provided. As a broad-based scheme meant to cover the competing interests of various age groups,
distinctions on general criteria, including age, had to be made to address the members’ different needs
over the course of their working lives.
When the supplementary death benefit is considered in the context of the other pensions and benefits to
which the surviving spouses are entitled, it is clear that its purpose corresponds to their needs. For
younger employees, it acts as group life insurance by insuring against unexpected death at a time when
the surviving spouse would not be protected by a pension. For older employees, whose spouses’ longterm income security is guaranteed by the survivor’s pension coupled with the public service’s health
and dental plans, it is intended to assist with the costs of last illness and death.
Requirement of disadvantage
• As soon as the proper comparator group had been selected, it is essential to compare the treatment provided
by the law to the claimant with the treatment offered to the comparator group.
• In Thibaudeau v Canada (1995) 2 S.C.R. 627, the claimant was not able to prove she had grieved a
disadvantage due to her marital status. She was divorced and had custody of the children. She received child
support and challenged the Income Tax Act, because it mandated, she pay income tax on the support
payments. She contended the tax provision prejudiced separated custodial parents due to the fac that in a
unified family income tax on money spent on child support would be paid by the spouse who made the
income. The Court dismissed her argument because the inclusion mandate on the receiving spouse
corresponded to a deduction made by the payor spouse. Because the spouse who paid was typically in a
high tax bracket, the tax amount saved due to the deduction usually exceeds that that was incurred by the
inclusion. By and large, the tax framework resulted in a reduction of tax for most separated couples. Thus,
the Court held there was no violation of s.15.
Objective and Subjective Disadvantage
• Hogg states that the fluctuations and changes between objective and subjective in the Supreme Court’s
inquiries into disadvantage may have been settled in the case of Law v Canada (55-40).
• Law brought into the equality jurisprudence a new condition of human dignity and spoke to the question of
whether an impairment of human dignity was to be evaluated from a subjective or objective perspective.
• The Court’s response was that both perspectives must be employed! The analysis was to be undertaken and
approached “from the perspective of the claimant and from no other perspective”, BUT the claimant’s
assertion must be “supported by an objective assessment of the situation” (para. 60)
• This appears to make the objective assessment the conclusive one. Later cases have clarified the test: an
impairment of human dignity is to be considered from the perspective and viewpoint of a reasonable person
(objective), but one who shares the characteristics and circumstances of the claimant (subjective) (Canada
Foundation for Children, Youth and the Law v Canada [2004] 1 S.C.R. 76, para. 53)
Human dignity and disadvantage
• When Kapp detached human dignity from s.15 analysis, it substituted the concept with “discrimination”, a
equally unspecified judicially formulated element to be proven by the equality claimant
• The Kapp condition has the same propensity to absorb the requirement of disadvantage
Group disadvantage
• In Andrews, La Forest J described non-citizens as “an example without parallel” of a group “who are
relatively powerless politically and whose interests are likely compromised by legislative decisions”.
• In R. v. Turpin [1989] 1 S.C.R. 1296, the Supreme Court refused the s.15 challenge because it said the three
accused did not comprise of “members” of a disadvantaged group (i.e. three people didn’t equate to
members of a group).
• “The question whether a showing of GENERAL or GROUP disadvantage is a prerequisite to a s.15 equality
claim has probably been settled by Miron v. Trudel and Egan v. Canada…” (Hogg, 55-46).
o In Miron, the Court said membership in a disadvantaged group was not a precondition, but simply
an “indicator” or “indicium” of an analogous ground.
o In Egan, the Court said, “while historical disadvantage of a group’s position as a discrete and
insular minority may serve as indicators of an analogous ground, they are not prerequisites for
finding an analogous ground” (para. 171 per Cory J.)
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•
•
•
In Law, reference was made to group disadvantage as a “contextual factor” in deciding if there had been an
impairment of the claimant’s human dignity; “disadvantaged group or groups” was “NOT PER SE
DETERMINATIVE” of an impairment of human dignity.
“It is NOT NECESSARY for a claimant under s.15 to establish that he or she is a member of a group
that is generally disadvantaged, that is, disadvantaged in ways that are independent of the particular
legal distinction under challenge” (Hogg, 55-47).
It is sufficient to show the claimant is disadvantaged by the particular or specific legal distinction under
challenge. Of course, the claimant will additionally have to demonstrate the particular legal distinction rests
on an enumerated or analogous ground, and it impairs claimant’s human dignity or is “discriminatory”
Direct and Indirect discrimination
Substantive equality
• “Direct” discrimination is when a law is prima facie discriminatory (on its face)
• The notion “formal equality” is typically employed to imply a theory of equality that covers only direct
discrimination.
• A law can also be discriminatory in its effect. For instance, a law that mandates height or weight
prerequisites for admission or entry to the police force would be discriminatory in its effect if the effect of
the law, regardless if it was intended or not, were to exclude a disproportionate number of women.
o This is “indirect discrimination”. It is caused by a law that does not explicitly employ any of the
categories listed in s.15 (or analogous to those listed), if the law has a disproportionately negative
impact on individuals defined by any of the prohibited categories.
o The term “substantive equality” is typically employed to imply a theory of equality that covers
indirect AS WELL as direct discrimination.
o Since s.15 covers substantive equality, it leads to the invalidity of a law that is discriminatory in its
effect.
• Finally, a law can be discriminatory in its application. “A law that prescribed no discriminatory
qualifications for admission to the police force would be discriminatory in its application if police
recruitment procedures led to the rejection of a disproportionate number of female applicants” (Hog, 55-47).
o This is another form of indirect discrimination and is also an infringement of substantive equality
and as such, of s.15. When a law is merely discriminatory in terms of its application, s.15 will
NOT LEAD to the invalidity of the law itself.
• Andrews made clear s.15 necessitated substantive and not merely formal equality. McIntyre pointed out:
“identical treatment may frequently produce serious inequality” (Id., 164).
• Therefore, Section 15 is applicable to all of the three kinds of laws identified
Unintended discrimination
• In Andrews, the consequence of discrimination was of course never intended. All the judges believed the
“legislators thought citizenship was a bona fide occupational requirement for the practice of law, and the
disadvantage to non-citizens was simply the inevitable by-product of the requirement” (Hogg, 55-50).
o Regardless, since the effect of the law was to disadvantage an individual on the premise of
citizenship (an analogous ground), there was a breach of s.15.
o The benign objective of the law was immaterial under s.15.
o BUT it was relevant and material when it came to the s.1 inquiry, and was taken into consideration
by all judges in that context
• In Andrews, McIntyre spoke to the issue of intention. In defining discrimination, he used the phrase
“whether intentional or not” (Id., 174).
• From the start, the Supreme Court committed itself to the principle that it is not mandatory to
demonstrate that the purpose of the challenged law is to impose or inflict a disadvantage on a person
by reason of a listed or analogous characteristic. It is sufficient to demonstrate that the challenged law
has this effect (Hogg, 55-50).
Justification under s.1 (Oakes Test)
• Since Law imported human dignity into s.15, there has been only one case in which s.1 has saved a law
found to be in breach of s.15: Newfoundland v N.A.P.E. (2004) 3 S.C.R. 381. Here, the implementation of
equal pay agreements was delayed due to a financial crisis in Newfoundland. The Court found human
dignity had been violated but, the Court went on to hold that the breach was justified under s.1.
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In a great deal of cases, the novel element of human dignity in s.15 leaves no room for s.1
It is difficult to rationalize a law that imposes a disadvantage on the basis of an enumerated or analogous
ground and also impairs human dignity
The Court’s withdrawal of human dignity in Kapp is improbable to reinstate s.1 to its intended justificatory
role, as the replaced concept of “discrimination” is very similar to human dignity
Affirmative Action
• S.15 (2) makes it redundant to look to s.1. As long as the programme meets the conditions specified by s.
15(2), it cannot be attacked under s. 15(1).
• In Kapp, McLachlin C.J. and Abella J. found subsection (2) was not just an elucidation or an aid to the
interpretation of subsection (1). Rather, subsection (2) had an “independent role” to play (para. 38). If an
affirmative action program fulfilled the criteria and conditions of subsection (2), then the program was valid
under s. 15(2) and no s. 15(1) analysis was necessary. If the program did not meet the criteria of s. 15(2),
then a s. 15(1) analysis would have to be undertaken to determine whether the program was discriminatory.
Discrimination permitted by Constitution
Age in ss. 23, 29, 99
• The Constitution Act, 1867, states a person under 30 years old cannot be appointed to Senate (s.23), and
that a senator must retire at age of 75 (s.29); it also stipulates that a judge has to retire at age of 75 (s.99)
Race in s. 91(24)
• Section 91(24) in the Constitution Act, 1867 bestows on the federal Parliament the authority to make laws
in regard to “Indians, and lands reserved for the Indians”.
Religion in s.93
• The Supreme Court in Ontario Separate School Funding case (1987) upheld an Ontario statute that
extended full public funding to Roman Catholic separate secondary schools. It was upheld on the basis that
the distinctive treatment of Roman Catholic school supporters was expressly permitted by the Constitution
Province of residence in ss.91, 92
• Discrepancies between provincial laws cannot equate to discrimination under s.15, as that would necessitate
a standardization of provincial laws, which would be inconsistent with the distribution of legislative powers
in ss.91 and 92 of the Constitution Act, 1867.
• As such, the federal system functions as a general qualification of s. 15’s guarantee of equality.
Citizenship in s.6
• Since s. 6(1)’s guarantee of the right to remain in Canada is applicable only to a “citizen”, it has been held
the Immigration Act may validity provide for the deportation of non-citizens who have committed criminal
offences (Chiarelli v Canada), or who have been certified as a danger to national security (Hogg, 55-60).
• “The imposition of a burden on non-citizens that does not also apply to citizens would normally be a breach
of s.15, but in the case of the right to remain in Canada a difference in treatment was specifically
contemplated by s. 6(1)” (Hogg, 55-60).
Language in ss.16-23
• Language rights execute a notion of equality of the French and English languages.
• Nonetheless, by inference, they grant a “special status” to French and English “in comparison to all other
linguistic groups in Canada” (Mahe v Alta [1990] 1 S.C.R. 342, per Dickson C.J.).
ENUMERATED GROUNDS
Race
•
“A racial distinction in a statute would be upheld if the statute established an affirmative action programme
within the terms of s.15 (2) and might be upheld under s.1 if the statute fell outside the strict term of s. 15(2)
but pursued a benign purpose of an affirmative action kind” (Hogg, 55-60.1).
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The special status of aboriginal peoples has been bolstered by s.35 of the Constitution Act, 1982, which
guarantees “aboriginal and treaty rights”. Such rights are confined to aboriginal peoples, who are of course
defined by their race.
S.25 of the Charter acknowledges this; s.25 provides that the Charter should not be interpreted so as to
rescind or derogate from “any aboriginal, treaty or other right or freedoms that pertain to the aboriginal
peoples of Canada”. As such, s.15 has only a restricted function to play in relation to aboriginal peoples.
“A law enacted by the federal Parliament under s. 91(24) for the benefit of Indian people, and laws enacted
to give effect to aboriginal or treaty rights, are NOT AFFECTED by s.15” (Hogg, 55-60.2).
Religion
• “Religion” is another of the grounds of discrimination that is expressly prohibited by s.15.
• The Charter, by s. 2(a) guarantees “freedom of conscience and religion”.
• S. 2(a) has been held to be infringed by Sunday observance laws and religious exercises in public schools.
• “These cases were not decided under s.15, but they could easily be viewed as equality cases in which
benefits are conferred on Christians that are denied to the adherents of other religions” (Hogg, 55-60.2).
Sex
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Age
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“Sex” is another ground of discrimination that is explicitly proscribed by s.15.
In R. v. Hess [1990] 2 S.C.R. 906, the Court found that the statutory rape crime did not infringe s.15, even
though only a male could commit the crime.
When discrimination against women takes place in the private realm, it is the human rights codes that apply,
as the Charter does not apply to private matters.
In Symes v. Canada [1993] 4 S.C.R. 695, the Court recognized females disproportionately took on the social
costs of childcare. However, the Court went on to find that the taxpayer in the case did not prove that
females disproportionately bore the financial expense of childcare. Thus, because the reduction would be
available in regard to only the financial costs, it would be advantageous for both men and women and so did
not amount to discrimination on the premise of sex.
Section 28 holds: Notwithstanding anything in this Charter, the rights and freedoms referred to in it are
guaranteed equally to male and female persons.
S.28 falls short of an obligation of the equal treatment of “male and female persons”, as that aim is achieved
by the general equality clause of s.15. All that s.28 seems to necessitate is that the other provisions of the
Charter be executed without discrimination between the sexes.
Age is a ground of discrimination explicitly outlawed by s.15.
There are two distinctions between age and other designated grounds of discrimination (Hogg, 55-66).
1. Age is a trait common to everyone. In the context of a normal life span, each individual passes
through the various stages of childhood, youth, adulthood, etc.
2. There is some association between age and ability. Our laws are replete with clauses and
provisions in which age is used as the qualification for pursuits that require skill or judgment.
In Law, the law did indeed impose a distinction on the enumerated ground of age. However, the Court found
that it was not discriminatory, as it did not impair human dignity. The Court said widows and widowers
under 35 are more able than older people in terms of sustaining or finding work and replacing the income
lost through the death of their spouse.
In Tetreault-Gadoury v Canada (1991), the Court held that the age-65 bar could not be justified under s.1.
The refusal of s.1 justification implies age distinctions are susceptible to Charter attack and even
compulsory retirement in the workplaces other than universities and hospitals may be unjustified under s.1.
The reasons universities and hospitals are different: (1) a university is a “closed system with limited
resources”; (2) “faculty renewal” is “crucial to extending the frontiers of knowledge”; (3) “academic
freedom” requires a minimum of performance review up to the retirement age (Id., 44).
Mental or Physical Disability
• Mental or physical disability is another of the grounds of discrimination expressly prohibited.
• Akin to the other grounds, mental or physical disability is immutable in that it cannot be altered by the
choice of the individual.
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Many disabilities can be accommodated by alterations to workplaces and public amenities that enable
individuals who are blind or deaf to operate effectually.
Therefore, the rules that discrimination may be unintended, may be indirect and may mandate reasonable
accommodation are of particular importance for this ground of discrimination (Hogg, 55-72).
In Eldridge v. British Columbia [1997] 3 S.C.R. 624, the Court granted a s.15 remedy for discrimination on
the ground of disability. The special needs of deaf people who sought medical services were not being
accommodated by the health services plan in British Columbia because publicly funded sign-language
interpretation was not provided. The lack of service was a violation of s.15.
ANALOGOUS GROUNDS
Citizenship
• Citizenship is NOT explicitly listed in s.15, but it is analogous to those that are expressly stated, as the
Supreme Court so held in Andrews v Law Society of British Columbia (1989) 1 S.C.R. 143. British
Columbia mandated that in order to be granted entry into the bar of the province, an individual had to be a
Canadian citizen; this was a breach of s.15 (and was not justified by s.1).
• Lavoie v Canada (2002) 1 S.C.R. 769 followed Law. Here, the Supreme Court held a statutory hiring
preference for Canadian citizens in the federal public service was a violation of s.15. The preference was
upheld saved by s.1. (Hogg, 55-76).
Marital Status
• Marital status is not found listed in s.15, but in Miron v Trudel (1995) 2 S.C.R. 418, the Supreme Court held
it was analogous to those that are expressly mentioned. The case determined that the Ontario’s Insurance
Act offended s.15 by restricting accident benefits to the legally married spouse of an insured, which had the
effect of disregarding common-law spouses. This was discrimination on the basis of marital status.
• After Miron, the Supreme Court added its new requirement of “human dignity” to s.15.
• In Nova Scotia v Walsh (2002) 4 S.C.R. 325, the Court held the distinction between married and common
law spouse did not impair the dignity of common-law spouses.
Nova Scotia v Walsh (2002) 4 S.C.R. 325
• The validity of Nova Scotia’s matrimonial property law was in issue. The law stipulated a shared
property scheme for when a marriage broke-down; it was restricted to legally married spouses.
• The woman who brought the challenge was in a common-law relationship. When the relationship ended,
her male partner owned more property than her.
• She contended that the law was unconstitutional, as it left out common-law spouses
Held:
• Marital status was unanimously accepted as an analogous ground under s.15. However, the Court found
that the omission of unmarried cohabitants did not impair human dignity.
• The law was based on the presumption that only those individuals who had made the choice to get
married had devoted themselves to a relationship of such permanence and continuity that it would justify
imposing on them the duties and responsibilities to contribute to and share in each other’s assets.
• The simple decision to cohabite, without getting married, could accurately be viewed by the Legislature
as not enough to trigger the radical revision of property rights mandated by the shared property regime.
• The Court found the distinction drawn by the law between legally married spouses and common-law
spouses corresponded to real distinctions between relationships and did not impair the dignity of
common-law spouses. The matrimonial law was upheld.
Sexual Orientation
• Sexual orientation has been held to be a ground of discrimination that is analogous to those listed in s.15
(Egan v. Canada [1995] 2 S.C.R. 513)
• In Vriend v. Alberta [1998] 1 S.C.R. 493, the Supreme Court held that Alberta’s human rights statute
infringed s.15 and that the statute was not saved by s.1. The statute did not offer a remedy to an individual
who had been discriminated against by his employer on the basis of sexual orientation. Alberta did not
provide evidence of a rational and legitimate legislative objective that would be supported by the failure to
safeguard homosexual individuals from discrimination on the premise of their sexual orientation.
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•
In the Same-Sex Marriage Reference (2004) 3 S.C.R. 698, the Court held Parliament’s power over
“marriage” in s. 91(26) of the Constitution Act, 1867 extended to the legalization of same-sex marriage
NOT ENUMERATED OR ANALOGOUS
Place of Residence
• This is not an analogous ground; it lacks the element of immutability that is common to the listed grounds
and is required for the analogous grounds.
R v Turpin (1989) 1 S.C.R. 1296
• A Criminal Code provision applied only in Alberta; it granted to a person accused of murder the
right to wave trial by jury and elect trial by judge alone. In the other provinces, trial by jury could
not be waived.
• In Ontario three accused were charged with murder; they wanted to be tried by judge alone.
• They argued that the Code’s denial of a trial by judge alone in Ontario was a violation of s.15, as
they would have had that choice if they been tried in Alberta.
• The Supreme Court rejected the argument; province of residence was not an analogous ground.
•
Compare to Aboriginal cases:
Corbiere v Canada (1999) 2 S.C.R. 203
• Members of the Batchewana Indian Band who lived off the band’s reserve challenged the provision
of the Indian Act that made residence a condition for voting in band elections.
• The Supreme Court held “Aboriginal residence” was an analogous ground, and that the voting
requisite was an infringement of s.15.
• “The ordinary ‘residence’ decision faced by the average Canadian should not be confused with the
profound decisions Aboriginal band members make to live on or off their reserves, assuming
choice is possible” (para 15; para 62)
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•
Apart from the special case of Indian reserves, the high level of personal mobility in Canada suggests that
the difficulties of changing one’s place of residence should not be regarded as so great as to qualify place of
residence as an analogous ground (Contra, Gibson; Hogg, 55-83).
Disparities in the treatment of individuals that are inflicted or imposed by federalism must be able to be
accommodated by the Charter of Rights.
For instance, the fact that that the minimum wage is higher in Manitoba than it is in Prince Edward Island is
not a violation of s.15. These disparities derive from the fact that labour law is a matter coming within
property and civil rights in the province; this subject matter is allocated to the jurisdiction of provincial
legislatures by s.92 of the Constitution Act, 1867.
Occupation
• Occupation is not an analogous ground. It is deficient of the immutability that is typical to the listed grounds
and is mandated for the analogous grounds.
• Professional status, occupational status or employment by a particular organization has not been
acknowledged as an analogous ground (Delisle v. Canada (Deputy Attorney General) [1999])
• Workers’ Compensation Reference (1989) 1 S.C.R. 922: “employment status is NOT an analogous ground”.
***
Fraser v. Canada, 2020 SCC 28
Facts:
• Three RCMP retired members took maternity leave. When they returned to working full-time, they had a
hard time meeting work obligations and handling their childcare duties.
• The RCMP introduced a job-sharing program where the members could split the duties of one full-time
position. The three claimants enrolled in the program. Most of the members who joined the program were
women with children.
• The claimants thought that the job-sharing would be eligible for full pension credits but later found out they
were not able to purchase full-time pension credit for their job-sharing work.
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Held:
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Full-time members who job-share must give up pension benefits because of a temporary reduction in
working hours. This arrangement has a disproportionate effect on women and perpetuates their historical
disadvantage. Thus, it is an obvious breach of their right to equality as per section 15 of the Charter.
To demonstrate a prima facie breach of s. 15(1), “a claimant must demonstrate that the impugned law or
state action, on its face or in its impact, creates a distinction based on enumerated or analogous grounds, and
imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or
exacerbating disadvantage”.
The claimants argue that the negative pension ramifications of job-sharing violate section 15(1) due to the
adverse, negative impact on women. This requires considering how adverse impact discrimination is
applied.
Adverse impact discrimination happens when a law that appears neutral has a disproportionate effect on
members of groups safeguarded on the basis of an enumerated or analogous ground.
“At the heart of substantive equality is the recognition that identical or facially neutral treatment may
frequently produce serious inequality. This is precisely what happens when seemingly neutral laws ignore
the true characteristics of a group which act as headwinds to the enjoyment of society’s benefits”.
The same two-step approach for section 15(1) is applicable; it doesn’t matter if the discrimination alleged is
direct or indirect.
At the first step, in order for a law to create a distinction based on prohibited grounds through its effects, it
must have a disproportionate impact on members of a protected group.
Ideally, claims of adverse effects discrimination should be supported by evidence about the circumstances
of the claimant group and the results produced by the challenged law.
Both evidence of statistical disparity and of broader group disadvantage may demonstrate disproportionate
impact, but neither is mandatory, and their significance will vary depending on the case. Whether the
legislature intended to create a disproportionate impact is irrelevant.
The second step of the s. 15 test — whether the law has the effect of reinforcing, perpetuating, or
exacerbating disadvantage — will usually proceed similarly in cases of direct and indirect discrimination.
The goal is to examine the impact of the harm caused to the affected group, which must be viewed in light
of any systemic or historical disadvantages faced by the claimant group. The presence of social prejudices
or stereotyping are not necessary factors in the s. 15(1) inquiry.
Application of the test to the case at bar: Under a proper assessment, the s. 15(1) claim succeeds.
STEP 1:
• The use of an RCMP member’s temporary reduction in working hours as a basis to impose less favourable
pension consequences plainly has a disproportionate impact on women. The relevant evidence showed that
RCMP members who worked reduced hours in the job-sharing program were predominantly women with
young children.
• The evidence that the RCMP’s use of a temporary reduction in working hours as a basis for imposing less
favourable pension consequences has an adverse impact on women.
STEP 2:
• This adverse impact perpetuates a long-standing source of disadvantage to women: gender biases within
pension plans, which have historically been designed for middle and upper-income full-time employees
with long service, typically male.
• Because the RCMP’s pension design perpetuates a long-standing source of economic disadvantage for
women, there is a prima facie breach of s. 15 based on the enumerated ground of sex.
Section 1, Oakes Test
• No pressing or substantial policy concerns were identified. It is unclear as to what purpose is served by
treating the two forms or work reduction differently when extending pension buy-back rights. With no
compelling objective, the breach cannot be justified under section 1 (fails at the first stage of Oakes).
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SUMMARY OF TEST/ANALYSIS42
Two-part framework for analysis under section 15(1) (Department of Justice; Government of Canada)43
The section 15 (1) framework for analysis involves two steps (Andrews):
STEP 1:
(i) Does the law create a distinction based on an enumerated or analogous ground?
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The first inquiry can be seen as imposing a threshold requirement in that a claim will fail if the claimant
cannot demonstrate that a government law or action withholds a benefit that is provided to others or
imposes a burden that is not imposed on others, based on an enumerated or analogous ground (Reference re
Same-Sex Marriage [2014])
With respect to establishing that the distinction is based on a prohibited ground, the list of grounds
“enumerated” in section 15 (1) (race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability) is not closed and courts may identify additional prohibited grounds analogous to those
listed.
Analogous grounds are similar to the enumerated grounds in that they identify a basis for stereotypical
decision-making or a group that has historically suffered discrimination. Analogous grounds describe
personal characteristics that are either immutable (characteristics that people cannot change) or
constructively immutable (characteristics that are changeable only at unacceptable cost to personal identity).
Once a ground has been found to be analogous, it will always be a ground in the future (Corbiere)
To date, the Supreme Court has held that the following are grounds analogous to those enumerated in
section 15 (1):
o Non-citizenship (Andrews; Lavoie v. Canada [2002])
o Marital status (Miron v. Trudel [1995]; Nova Scotia (Attorney General) v. Walsh [2002])
o Sexual orientation (Egan v. Canada [1995]; Vriend; M. v. H. [1999]; Little Sisters); and
o Aboriginality-residence as it pertains to a member of an Indian Band living off the reserve
(Corbiere v. Canada (Minister of Indian and Northern Affairs) [1999]).
The Supreme Court has held that the following are not analogous grounds:
o Place or province of residence (Siemens v. Manitoba (Attorney General) [2003])
o Professional status, occupational status or employment by a particular organization has not been
recognized as an analogous ground (Delisle v. Canada (Deputy Attorney General) [1999]; Baier v.
Alberta, [2007])
o “Substance orientation” such as marihuana use as a personal characteristic (Malmo; Caine
[2003]).
Embedded Analogous Grounds:
o Pregnancy, which is distinct from but fundamentally interrelated with gender, is an example of a
personal characteristic that does not apply to all members of the group in question (women) at any
given time, which has been held to be the basis for discrimination under human rights
legislation. (Brooks).
(ii) Is the distinction discriminatory?
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42
43
This second stage is generally aimed at determining whether the distinction in question amounts to
discrimination in the substantive sense (does distinction = discrimination).
While in Law, the Supreme Court approached this question by assessing the law’s impact on the claimant’s
“essential human dignity”, it acknowledged in Kapp, that “several difficulties have arisen from the
attempt…to employ human dignity as a legal test”. Accordingly, this stage of the analysis was refocused on
the guiding concepts from Andrews of “the perpetuation of disadvantage and stereotyping as the primary
indicators of discrimination” (Kapp; Withler).
More recently, the Supreme Court has suggested a further shift in emphasis at this stage of the inquiry to
now focus on whether a distinction has “the effect of perpetuating arbitrary disadvantage on the
claimant” (Taypotat; Quebec v. A.). See Fraser above.
These concepts are not themselves a test but rather “useful guides” informing the contextual inquiry into
Government of Canada, Department of Justice. Section 15 – Equality Rights. 2019-06-17.
Government of Canada, Department of Justice. Section 15 – Equality Rights. 2019-06-17.
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whether there has been discrimination in the substantive sense (Quebec v. A.).
In Law, it elaborated four contextual factors which help guide the analysis at this stage: (a) pre-existing
disadvantage, if any, of the claimant group; (b) degree of correspondence between the differential treatment
and the claimant group’s reality; (c) whether the law or program has an ameliorative purpose or effect
(largely, but not wholly subsumed, since Kapp, supra, within the section 15(2) analysis); and (d) the nature
of the interest affected.
While the list of factors is not closed, none have been added since Law.
The Court has repeatedly emphasized that not all factors will be relevant in every case and no one
factor is determinative (Law, Lavoie; Martin; Laseur; Withler; Quebec v. A.).
The Supreme Court has also stated that it is not necessary or desirable to apply a step-by-step consideration
of these factors. The factors should not be read literally or mechanically, “but as a way of focusing on
the central concern of section 15 — combating discrimination (Kapp; Quebec v. A.).
The Supreme Court has elaborated on the role played by each factor:
(a) Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or
group at issue
o A member of a group that historically has been more disadvantaged in Canadian society is less
likely to have difficulty in demonstrating discrimination (Law).
o Where no such unique disadvantage is established, as distinct from the broader group which
provides the basis for comparison, this factor does not play a significant role (Gosselin, Martin).
o Once a group has been found to suffer pre-existing disadvantage, this will be “settled law” which
can be relied on in subsequent cases no matter what the nature of the impugned law is (Lavoie).
o This factor is not determinative of an unjustifiable limit of section 15(1). A member of any group,
disadvantaged or not, may successfully bring a section 15(1) claim if he or she establishes a
distinction on an enumerated or analogous ground that amounts to substantive discrimination.
o It is not necessary to show historical disadvantage in order to establish discrimination
(Law; Trociuk v. British Columbia (Attorney General) [2003]).
(b) The correspondence, or lack thereof, between the grounds on which the claim is based and the actual
needs, merits, capacities or circumstances of the claimant or others
o In many cases, this is the key contextual factor. The focus is on how closely the government law
or action corresponds to the claimants’ particular circumstances in comparison with others
who are either receiving the benefit or are not subject to the burden of the impugned
measure.
o This factor is intended to get at the central question of stereotyping, a hallmark of “substantive
discrimination” (Kapp).
o Discrimination will be more easily established where government action fails to take into account
the claimant’s actual situation (Law).
o The fact that the claimant shares a need in common with the comparator group is not in itself
sufficient to establish a lack of correspondence (Lovelace).
o Failure to accommodate the needs of persons with disabilities, thereby leaving individuals without
access to the same level of government service or benefits as others, discriminates on the ground of
disability (Eldridge; Eaton v. Brant County Board of Education [1997]; Martin; Laseur).
(c) The ameliorative (purpose or) effects of the impugned law on a more disadvantaged person or group in
society
o Prior to Kapp, section 15(2) was characterized by the Supreme Court as an “interpretive aid” to
section 15(1) (Lovelace), and it was this third contextual factor that addressed whether the
impugned distinction could be attributed to the amelioration of the circumstances of a group more
or differently disadvantaged than the claimant.
o Such a purpose or effect would be consistent the with section 15 protection of substantive equality
and accordingly would militate against a finding of discrimination (Lovelace; Granovsky).
o While much of this inquiry has, after Kapp, been subsumed by the section 15(2) analysis
(discussed below), the section 15(2) analysis considers only ameliorative purpose, not effect.
o Accordingly, where a program does not meet the requirements of an ameliorative purpose within
the meaning of section 15(2), it may be possible to argue that its ameliorative effects militate
against a finding of discrimination.
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(d) The nature and scope of the interest affected by the impugned law
o All other things being equal, the more severe and localized the economic, constitutional or social
consequences of the government law or action for the affected individual or group, the more likely
that the differential treatment responsible for these consequences is discriminatory within
the meaning of section 15(1) (Egan; Law).
o A guiding question is “whether the distinction restricts access to a fundamental social institution or
affects ‘a basic aspect of full membership in Canadian society’” (Law; Egan).
o Cases involving a “complete non-recognition of a particular group” will have a greater adverse
impact than laws that “recognize or accommodate the group, but…in a manner that is simply more
restrictive than some would like” (Lovelace).
o The Supreme Court has identified a number of interests as significant within the context of section
15: spousal relationships (M. v. H.), the right of band members to vote in band elections
(Corbiere), access to homosexual erotica for gay and lesbian culture (Little Sisters), work or
employment (Lavoie), the meaningful participation by parents in the lives of their children
(Trociuk), and physical integrity (Canadian Foundation for Children, Youth and the Law).
Framework of analysis for section 15(2)
• The basic purpose of section 15(2) is to shield ameliorative programs from the charge of “reverse
discrimination”.
• Section 15(2) enables governments to combat discrimination through programs aimed at helping
disadvantaged groups without fear of challenge under section 15(1) by groups that don’t share that
disadvantage (Kapp).
• In addition, s. 15(2) enables governments to assist one disadvantaged group, or subset thereof,
without being paralyzed by the necessity to assist all, including others who may suffer similar or
equal disadvantage (Cunningham).
• The Supreme Court has stated that “sections 15(1) and 15(2) work together to promote the vision of
substantive equality that underlies s. 15 as a whole” (Kapp).
NOTE: Affirmative action programs accommodating disadvantage are an expression of equality, not an exception
(Kapp; P. W. Hogg, Constitutional Law of Canada (5th ed. Supp. 2007), Andrews).
APPROACH: once the claimant has established a distinction on a prohibited ground, it is open to the
government to establish that the impugned law, program or activity is ameliorative within the meaning of
section 15(2) and accordingly, constitutional, obviating the “step (ii)” analysis of whether or not the distinction
amounts to discrimination in the substantive sense.
To satisfy the requirements of section 15(2), the government must establish that:
The program has a genuinely ameliorative or remedial purpose; and
The program targets a disadvantaged group identified by the enumerated or analogous grounds (Kapp).
(a) Ameliorative or remedial purpose
• The government must establish that its goal in creating the program or benefit in question was to “improve
the conditions of a group that is disadvantaged” (Kapp).
• To be “rational”, “there must be a correlation between the program and the disadvantage suffered by the
target group” (Cunningham).
(b) Disadvantaged group identified by the enumerated or analogous ground
• The types of programs protected under section 15(2) are those “targeting the conditions of a specific and
identifiable disadvantaged group, as contrasted with broad societal legislation, such as social assistance
programs” (Kapp).
• “‘Disadvantage’ under section 15 connotes vulnerability, prejudice, and negative social characterization”.
• The interpretation of “disadvantage” is as explored in key section 15 cases such as Andrews, Trudel, Law.
• For a program to qualify, not all members of the group targeted need to be disadvantaged, as long as the
group as a whole has experienced discrimination (Kapp).
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24. LIMITATIONS OF RIGHTS
*This is a key section in the Charter! This chapter delves into how to actually apply the test and goes through a step
by step approach. The preliminary steps below are executed before you conduct the substance of the Oakes section 1
test. First you must ascertain what the actual Charter right in question is (i.e. religion) and whether the
appellant/plaintiff actually is entitled to that right (i.e. someone cannot claim that they have a separate, individual
religion wherein they are allowed to kill; this would not pass as a “religion” or pass the “sincere belief” test). Once
the Charter right is ascertained, then you must analyze the impugned law. Is the law in question even a valid, legal
one? If it is, for instance, too vague, or ill-defined, the law may be struck down before the test has even begun.
Section 1 of the Charter of Rights
• ‘Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to
such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.
• Section 1 guarantees rights and freedoms set out in the Charter; however, it makes it very clear that they
are not absolute in nature (qualified v unqualified rights).
• Sometimes a person’s rights can be overridden. Some rights are qualified (i.e., if you break the law, you
can be arrested, as such, your section 7 Charter right can be violated).
• Judicial review of legislation under the Charter consists of two stages: (1) The first step consists of
interpreting and applying the provisions of the Charter that pertain to the guaranteed right. Here, we must
assess if the impugned law actually limits (or has the effect of limiting) one of the Charter rights and (2)
The second stage involves applying section 1 of the Charter.
***
R v Oakes (1986) 1 S.C.R. 103
• Dickson CJ emphasized that only the values of a free and democratic society would be adequate in order
to limit or restrict the guaranteed rights contained within the Charter of Rights and Freedoms.
• What are these values? Dickson CJ identified some examples at 136: “respect for the inherent dignity of
the human person, commitment to social justice and equality, accommodation of a wide variety of
beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance
the participation of individuals and groups in society”
• At 135, Dickson CJ pointed out that s.1 contained two inherent functions:
o “It not only provided for limits on the guaranteed rights; it also, by its opening words, expressly
guarantees the rights and freedoms set out in the Charter” (Hogg, 38-5).
o The priority of the rights and freedoms was also implicated by the requisite that limits be
“demonstrably” justified.
• “These indications led Dickson CJ to stipulate strict rules as to the burden and standard of proof of
justification and as to the substantive criteria that would qualify a law as a “reasonable limit” that can be
demonstrably justified in a free and democratic society” (Hogg, 38-6).
• The Court insisted on a “stringent standard of justification” before it would allow any restriction or limit
by virtue of s.1.
Relationship between s.1 and rights
• In Oakes, Supreme Court decided to stipulate a “single standard of justification for all rights, and to make
that standard a high one and to cast the burden of satisfying it on the government” (Hogg, 38-6).
• Each right should read in a manner that does not extend to conduct or behaviour that is outside the function
or purpose of the right – behaviour that is not deserve constitutional safeguarding. If this notion is
neglected, the unavoidable outcome will be the corrosion of the Oakes standard of justification.
• If the rights are expansive and far-reaching and the standard of justification is low, then the result will be
that many more Charter challenges will come before the courts and will fail to be established under s.1.
Because the standard of justification would be truncated, it would be challenging to come up with
significant limits on the judicial review procedure (think about the flood gates argument).
Burden of Proof
• The first stage involves determining if, in the first place, a Charter right has been violated!
• The onus of establishing this is on the person asserting the infringement.
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If it is found a Charter right has in fact been breached, then the second stage is reached. This stage focuses
on s.1 inquiry – that is, can the breach be justified under the Oakes test.
o At this stage, the burden of proof shifts to the government who wants the challenged law upheld.
The government must convince the court the challenged law is a “reasonable limit” and that it “can
be demonstrably justified in a free and democratic society”.
o In Oakes, it was established that the standard of proof here is “the civil standard, namely, proof by
a preponderance of probability” (Id., 137).
Presumption of Constitutionality
• You start with the position that the law is constitutional. The plaintiff or individual challenging the law as
being a violation of their Charter right has to REBUT this presumption.
• In federalism cases, the constitutional challenge or dispute is basically between two levels of government.
• In Charter cases, the constitutional contest is between government and an individual, who asserts that a right
has been violated.
Prescribed by Law
a) Definition of prescribed by law
• Section 1 states the Charter rights are subject to “such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society”.
• This language “prescribed by law” makes it evident that an act that is not legally authorized can never be
justified under s.1, no matter how reasonable or demonstrably justified it may appear to be.
• The condition that any limit on rights be prescribed by law conveys two values:
o “First, in order to preclude arbitrary and discriminatory action by government officials, all official
action in derogation of rights must be authorized by law” (Hogg, 38-12).
o Second, citizens obtain a reasonable chance to know what is illegal so they can act accordingly.
o Both these values are fulfilled by a law that meets two conditions:
§ (1) The law must be adequately and sufficiently accessible to the public;
§ (2) The law must be formulated with sufficient precision to allow individuals to regulate
their behaviour and conduct by it and to offer direction to those who apply the law
• The Supreme Court of Canada has held that the phrase “prescribed by law” in s.1 entails the same two
requirements of accessibility and precision (Greater Vancouver Transportation Authority v. Can.
Federation of Students [2009] 2 S.C.R. 295, para. 50).
• The Court has held that “law” in s.1 is not limited or confined to primary legislation: it is also fulfilled by
delegated legislation (made under statutory authority), such as a regulation or rule of a regulatory body.44
o Even government policies will qualify as “law” if the government entity possesses the statutory
power and authority to enact binding rules of general application and if they are legislative policies
• However, for policies to qualify as law, the requisite of accessibility and precision must be met. Greater
Vancouver Transportation Authority v. Canadian Federation of Students (2009) 2 S.C.R. 295 determined
the status of government policies. Here the Court held that the transit policies confining advertising on the
sides of buses were restrictions on freedom of expression that were prescribed by law.
b) Discretion
• A law that grants discretionary power to a board or official to act in derogation of a Charter right will fulfill
the prescribed-by-law condition if the discretion is controlled and restricted by legal standards.
• In Re Ontario Film and Video Appreciation Society (1984) 45 O.R. (2d) 80 (C.A.), a statute that authorized
film censorship was held to NOT have met the condition, as the censor board was granted ‘unfettered’
discretion and the statute did not specify the principles and criteria that was to be executed by the board.
• Irwin Toy v. Que. [1989] 1 S.C.R. 927, 983: a statutory discretion in derogation of a Charter right must be
subject to an “intelligible standard”.
• However, the Court has upheld discretions that were not restrained by meaningful legal standards, such as
was the case in R. v. Hufsky [1988] 1 S.C.R. 621, where a provincial statute permitting police to stop
automobiles at their unfettered discretion was upheld (random spot checks).
• In sum: When a decision limiting a Charter right is made under a broad, expansive statutory discretion, it is
the decision and not the statute that has to satisfy the s.1 Oakes test (Eldridge v. B.C. [1977] 3 S.C.R. 624).
44
Black v. Law Society of Alberta [1989] 1 S.C.R. 591
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c) Vagueness
• In Canada it is a principle of fundamental justice that a statute is “void for vagueness” if its prohibitions are
not clearly and transparently described and defined.
• A vague law offends the values of constitutionalism. It fails to provide reasonable notice of what is
forbidden and banned so that citizens can govern themselves accordingly.
• Osborne v. Can. [1991] 2 S.C.R. 69, 94: Precision is one of the ingredients of the prescribed-by-law
requirement. An excessively vague law is NOT a “reasonable” limit within the s.1 inquiry.
• In Irwin Toy v. Quebec, the Court held that it was not appropriate or practical to demand “absolute
precision” in a statute. A law would only fail to meet the prescribed-by-law test “where there is no
intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a
wide set of circumstances” (Id., 983).
Reasonable and Demonstrably Justified
• Section 1 provides the Charter rights are subject to “such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society”
• The requirements of reasonableness and demonstrable justification are collective/aggregate, not alternative!
• Though both requirements must be satisfied, the courts have determined that it is a single standard that
should be applied.
OAKES TEST (as per Dickson, C.J.):
1.
First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed
to serve, must be “of sufficient importance to warrant overriding a constitutionally protected right or
freedom”. The standard must be high in order to ensure objectives that are trivial or discordant with the
principles integral to a free and democratic society do not gain s.1 protection.
2.
Second, once, a sufficiently significant objective is recognized, then the party invoking s.1 must show that
the means chosen are reasonable and demonstrably justified. This involves “a form of proportionality
test” …Although the nature of the proportionality test will vary depending on the circumstances, in each
case courts will be required to balance the interests of society with those of individuals and groups. There
are…three important components of a proportionality test.
• First, the measures adopted must be carefully designed to achieve the objective in question. They
must not be arbitrary, unfair or based on irrational considerations. In short, they must be
rationally connected to the objective.
• Second, the means, even if rationally connected to the objective in this first sense, should impair
“as little as possible” the right or freedom in question.
• Third, there must be a proportionality between the effects of the measures which are responsible
for limiting the Charter right or freedom, and the objective which has been identified as of
“sufficient importance”.
In sum, there are four criteria that must be fulfilled and satisfied by a law that qualifies as a reasonable
limit that can be demonstrably justified in a free and democratic society (Hogg summary, 38-18):
1) Sufficiently important objective: The law must pursue an objective that is sufficiently important to
justify a Charter right.
2) Rational connection: The law must be rationally connected to the objective
3) Least drastic means: Law must impair the right no more than is necessary to accomplish objective
4) Proportionate effect: Law must NOT have a disproportionately severe effect on the persons to whom it
applies.
NOTE: technically, you can just perceive Oakes as four steps (if this is easier for you).
(1) Sufficiently Important Objective
Identification of objective
• “Even if one could be absolutely sure of what legislators were hoping to achieve when they enacted the
challenged law, the statement of the objective can be expressed at various levels of generality” (Hogg, 3819).
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•
•
•
•
For instance, in Andrews v Law Society of British Columbia (1989) 1 S.C.R. 143, the law in issue made
Canadian citizenship a requirement for admission to the legal profession in British Columbia. The Court
found that equality was infringed by virtue of the impugned law. however, the Court was divided when
confronted with whether the law could be justified under s.1.
o There are two ways to perceive the objective of the law: high level of generality and low level of
generality. In relation to the first, the objective would be to restrain entry to the legal profession to
only those who are qualified. In relation to the latter objective, it would be to confine entry to only
Canadian citizens.
Clearly, from Andrews, it is evident that the objective of the law can be expressed in different manners.
What you must focus upon is if there is a sufficient justification for a breach of the Charter!
In RJR-MacDonald v Canada (1995) 3 S.C.R. 199, the impugned law prohibited advertising of tobacco
products. This breached freedom of expression. McLachlin J said, “the objective that is relevant to the s.1
analysis is the objective of the infringing measure”. On that footing, the objective of the advertising
prohibition “must be to prevent people in Canada from being persuaded by advertising and promotion to use
tobacco products” (para 144). This was a more confined and “less significant” objective than the expansive
objective of safeguarding the health of Canadian from tobacco use. Nonetheless, McLachlin J. this was an
objective of sufficient importance to justify overriding the right of free expression (i.e. health, safety).
In Irwin Toy, a law banning advertising aimed at children under 13 was upheld. The law encroached on the
freedom of expression, section 2(b) of the Charter. “The majority of the Court defined the objective of the
law at a very low level of generality, as the protection of children (a vulnerable group) from advertising”
(Id., 987; Hogg, 38-21). The Court found that the objective was “pressing and substantial”.
Importance of objective
• As per Oakes, the only kind of law that can serve as a justified limit on a Charter right is one that pursues an
objective that is sufficiently important to justify overriding a Charter right.
• The law itself needs to accomplish something important! (i.e., safety, health, protection of vulnerable
persons, harm)
• When does an objective achieve this degree of importance? Dickson CJ provided some guidance.
(1) Only objectives that are consistent with the values of a free and democratic society will qualify.
(2) The objective must relate to concerns which are “pressing and substantial”, rather than merely trivial
(3) The objective must be directed to “the realization of collective goals of fundamental importance”
Quebec’s distinct society
• When Dickson CJ in Oakes provided illustrations of the values of a free and democratic society, he
included “respect for cultural and group identity”.
• In Attorney General of Quebec v Ford (1988) 2 S.C.R. 712, the law in question required public signs to be
solely in the French language. The Court held the law breached s.2(b) of the Charter, freedom of
expression, and could NOT be saved under s.1 The Court acknowledged the susceptible position of the
French language in Quebec and recognized that the safeguarding and progression of the language was a
sufficiently important objective to justify a limit on freedom of expression.
• Nonetheless, regardless of its sufficiently important purpose, the law was struck down, as the prohibition of
English was a disproportionate impairment of the rights of English-speakers; the outlawing of English that
went too far (failed the minimal impairment stage of Oakes).
Shifting objectives
• In R. v. Big M Drug Mart [1985] 1 S.C.R. 295, the Supreme Court found that an objective cannot provide
the foundation or basis for s.1 justification if that objective did not actually cause the enactment of the law.
• Dickson C.J. in Big M stated, “Purpose is a function of the intent of those who drafted and enacted the
legislation at the time, and not of any shifting variable” (Id., 335).
• Essentially, you cannot simply alter the objective/purpose of the law to “save it”. The initial objective will
still remain and that is the objective you must assess.
Cost
•
•
Costs will generally not represent a sufficiently important objective (only happened in one case: NAPE).
In New Brunswick v. G. (J.) [1999] 3 S.C.R. 46, it was held that it was a violation of section 7 of the Charter
to not provide legal aid to a parent whose kin was the subject of removal proceedings.
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Newfoundland v N.A.P.E. (2004) 3 S.C.R. 381
Facts:
• The Newfoundland Government signed a pay-equity agreement with female employees. This
agreement included a series of pay increases over a five-year period.
• The Public Sector Restraint Act came out before the commencement of the payments. This Act altered
the agreement by delaying the start the payments to a date three years later than agreed-upon date.
Held:
• The Act discriminated on the basis of sex in violation of s.15 of the Charter. The Court held the Act
was saved by s.1.
• “The financial crises of the province supplied a sufficiently important objective to justify the limit on
the female workers’ equality rights” (Hogg, 38-31).
• Binnie J who wrote for the Court said that financial considerations would not “normally” suffice as
the objective of a limit on a Charter right, but in this case the government was managing a
“financial crisis” that had attained a dimension that called for remedial measures”
(2) Rational Connection
a) Definition
• The second step in Oakes is to decide if the law is “rationally” connected to the objective of the law.
• “The requirement of rational connection calls for an assessment of how well the legislative garment has
been tailored to suit its purpose” (R. v. Edwards Books and Art [1986])
• The law must be “carefully designed to achieve the objective in question”; it should not be “arbitrary,
unfair, or based on irrational considerations” (R. v. Oakes [1986]).
• The Oakes case itself was failed at this stage (the rational connection requirement). The provision that was
in issue was in the federal Narcotic Control Act. It provided that if an accused was in possession of illicit
drugs, this automatically raised a presumption that they were in possession for the purpose of trafficking.
The Court held the objective of the provision (i.e., reverse onus clause), which was to safeguard society and
the public from drug trafficking, was sufficiently important to justify limiting a Charter right. Thus, step
one was passed (sufficiently important objective).
o However, the Court found that the law did not pass the rational connection test. Dickson C.J.
stated, “There must be a rational connection between the basic fact of possession and the presumed
fact of possession for the purpose of trafficking” (Id.,141)
o This reverse onus clause could not fulfill the rational connection test, as it did not make any
proviso as to the quantity of narcotics in the possession of the accused: “possession of a small or
negligible quantity of narcotics does not support the inference of trafficking” (Id., 142).
o The Court ceased the s.1 inquiry at this step, finding that the reverse onus clause could not be
saved under s.1 and was thus, unconstitutional
Benner v Canada (1997) 1 S.C.R. 358
Facts:
• It was an infringement of equality rights to inflict more rigid requisites for Canadian citizenship on a
person born outside Canada before 1977 to a Canadian mother than on a person born outside Canada
before 1977 to a Canadian father.
• The federal government tried to justify the challenged provision by submitting that the condition of a
security check was a rational method of screening potential citizens to keep out dangerous persons
(this was the purpose)
Held:
Supreme Court found the screening out of dangerous persons to be a sufficiently important objective BUT the
Court found there was no rational connection between the objective and the discrimination. Children of
Canadian mothers could not rationally be deemed as more threatening than children of Canadian fathers.
b) Causation
• “The essence of rational connection is a causal relationship between the objective of the law and the
measures enacted by the law. This is often a difficult matter to establish by evidence and the Supreme Court
has not always insisted on direct proof of the casual relationship” (Hogg, 38-35).
• In RJR-MacDonald v. Canada [1995] 3 S.C.R. 199, the Supreme Court held “the common-sense connection
between advertising and consumption was sufficient to satisfy the rational connection requirement”.
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McLachlin J. stated: A casual connection founded on ‘reason’ or ‘logic’ would suffice and be enough,
despite the fact that the evidence was ‘admittedly inconclusive’.
(3) Least Drastic Means
Minimum impairment
• The requirement of least drastic means is the third step in the Oakes test.
• In case of Oakes, it was explained as the second element of proportionality. This step provides that the law
“should impair” ‘as little as possible’ the right or freedom in question.
• “The idea is that the law should impair the right NO MORE than is necessary to accomplish the desired
objective…in other words, the law should pursue the objective by the least drastic means” (Hogg, 38-36).
• Various laws have failed this stage - the requirement of least drastic means.
o Quebec’s ban of the use of English in commercial signs was held to be too drastic a means of
shielding the French language (Ford v Quebec)
o Alberta’s rule forbidding Alberta lawyers from engaging in partnerships with lawyers not resident
in Alberta was held to be too drastic a means of controlling the standards of the legal profession.
Margin of appreciation
• Peter Hogg comments that “It is rarely self-evident that a law limiting a Charter right does so by the least
drastic means”. There may be many ways in which a law can limit a Charter right, some ways that are
minimally different from others.
• A rigid execution of the least-drastic means requirement would permit only a single legislative response to
an objective that involved the restraining of a Charter right.
• The law that least impaired the Charter right would be satisfactory; all alternatives would fail (Hogg, 38-39)
• Section 1 must allow some accommodations at this stage. Judges must permit provincial Legislatures a
“margin of appreciation”, a zone of discretion within which different legislative choices of derogation of a
Charter right could be tolerated (“Federalism Fights the Charter of Rights”, Peter Hogg).
• In R v Edwards Books and Art (1986), the Ontario Sunday-closing law was upheld. It was found to infringe
freedom of religion but was saved under s.1. The Court acknowledged a “margin of appreciation”, which
could tolerate an array of various Sunday-closing laws. Since this case, the phrase “margin of appreciation”
has been employed to explain the approach to the requirement of the least drastic means (Irwin Toy v. Que.).
• Cases after Edwards have employed the requirement in a flexible manner, searching for a reasonable
legislative endeavour to minimize and reduce the violation of the Charter right, instead of insisting that only
the least possible violation or breach could subsist (survive).
(4) Proportionate Effect
• The requirement of proportionate effect is last step in Oakes.
• Here, we weigh the negative effects of infringing the Charter with the benefits of the challenged law
• In Oakes, it was described, by Dickson C.J., as the third element of proportionality, and it was said to
mandate “a proportionality between the effects of the measures which are responsible for limiting the
Charter right or freedom, and the objective which has been identified as of ‘sufficient importance’”.45
• Dickson C.J. rearticulated the requirement in Edwards Books: “The effects of the limiting measures must
not so severely trench on individual or group rights that the legislative objective, albeit important, is
nevertheless outweighed by the abridgement of rights” ([1986] 2 S.C.R. 713, 768).
• You only get to the fourth step after the means have already been deemed to be rationally connected to the
objective and to be the least drastic of all the means in terms of achieving the objective.
• The proportionate effect requirement necessitates a balancing and weighing of the objective sought by the
law against the violation of the Charter.
• This stage asks: is the Charter breach too high a price to pay for benefit of the law
***
Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567
• Alberta’s highway traffic law mandated a photograph of each holder of a driver’s licence. The purpose
of this law was the enhancement and improvement of the security and integrity of the driver’s licensing
45
[1986] 1 S.C.R., 103, 139.
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Held:
•
•
•
•
scheme, and of roadside safety.
The Court found the law restricted the religious freedom (s.2(a)) of the Hutterian Brethren, as they
sincerely believed that the Bible forbade them from having their photographs taken.
The Court found that the law could be saved under s.1. The law made it past the first three steps of the
Oakes test, however, McLachlin CJ made it clear the FOURTH STEP had to be satisfied as well. She
found the fourth step was fulfilled because the salutary (beneficial) effects of the universal photo
requirement outweighed the deleterious (negative) effects on the claimants’ religious rights.
The Court at para [35]: “…a measure of leeway must be accorded to governments in determining
whether limits on rights in public programs that regulate social and commercial interactions are justified
under section 1 of the Charter”.
At para [76], the Court stated: It may be questioned how a law which has passed the rigours of the first
three stages of the proportionality analysis — pressing goal, rational connection, and minimum
impairment — could fail at the final inquiry of proportionality of effects. The answer lies in the fact that
the first three stages of Oakes are anchored in an assessment of the law’s purpose. Only the fourth
branch takes full account of the “severity of the deleterious effects of a measure on individuals or
groups”.
The Court weighed the benefits of the law against the negative impact it had on the freedom of religion.
At paras 101 to 103, the Court held:
[101] The law has an important social goal — to maintain an effective driver’s licence scheme that
minimizes the risk of fraud to citizens as a whole. This is not a goal that should lightly be
sacrificed. The evidence supports the conclusion that the universal photo requirement addresses a
pressing problem and will reduce the risk of identity-related fraud, when compared to a photo
requirement that permits exceptions.
[102] Against this important public benefit must be weighed the impact of the limit on the claimants’
religious rights. While the limit imposes costs in terms of money and inconvenience as the price of
maintaining the religious practice of not submitting to photos, it does not deprive members of their
ability to live in accordance with their beliefs. Its deleterious effects, while not trivial, fall at the less
serious end of the scale.
[103] Balancing the salutary and deleterious effects of the law, I conclude that the impact of the limit
on religious practice associated with the universal photo requirement for obtaining a driver’s licence, is
proportionate.
NOTE: You will not always have to conduct the full Oakes test. Consider the situation wherein the law fails early in,
say, at the second or third step. However, it may be worthwhile (only if you have time in the exam) to actually
execute the entire test, informing the marker that the law would have in fact failed earlier, nonetheless, you will be
following through with all the steps. This is where you must use your discretion.
Application to common law
• A rule of the common law may be a limit “prescribed by law” under s.1. The common law evolves overtime
and modernizes essentially older rules and laws to ensure conformity with societal evolvement.
• In R. v. Swain [1991] 1 S.C.R. 933, Oakes was applied to the common law rule that a Crown prosecutor
may adduce evidence of the insanity of the accused against the wish of the accused (common law: crown
adduces evidence of insanity).
• The Charter is NOT APPLICABLE to the common law in terms of its application to private parties = where
no governmental actor is involved However, it has been held that the Charter DOES apply indirectly to the
common law, as the Crown will assess if the common law is aligned with Charter values and IF IT IS NOT,
the Court will amend the common law in order to make it consistent and aligned with Charter values.
• In Hill v Church of Scientology (1995) 2 S.C.R. 1130, Cory J. said that it was not suitable to apply “the
traditional s.1 analysis” in cases where the Charter was not directly applicable. Rather, he proclaimed that
there should be a “more flexible” balancing and weighing of the competing values, and the burden rested
with the claimant to convince the Court that the common law should be modified. (paras. 97, 98).
Emergency Measures
• The enactment of emergency measures is not contained as a provision in the Charter. Courts will be the
ones to determine, in a situation of an emergency, if such restrictions are reasonable and demonstrably
justified in a free and democratic society (Re BC Motor Vehicle Act [1985] 2 S.C.R. 486, 518).
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25. REMEDIES
Supremacy Clause
Section 52(1) of the Constitution Act, 1982
“The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no force or effect”
• The supremacy clause grants the Charter overriding effect. Because the Charter is part of the “Constitution
of Canada”, any law that is inconsistent with the Charter is “of no force or effect”.
• Because it unavoidably falls to the courts to establish if a law is inconsistent with the Charter, s. 52(1)
provides an express ground for judicial review of legislation in Canada
Section 24(1)
• S, 24(1) permits a court of competent jurisdiction to grant a remedy for violation of Charter.
• S. 24(2) empowers a court of competent jurisdiction to omit evidence attained in breach of the Charter.
• Section 24(1): Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or
denied may apply to a court of competent jurisdiction to obtain such a remedy, as the court considers
appropriate and just in the circumstances
• The differences between s. 24(1) and s. 52(1):
o S. 24(1) ONLY APPLIES to violations of the Charter Rights; s. 52(1) is applicable to the entire
Constitution of Canada, this of course consists of the Charter of Rights.
o Secondly, 24(1) is available only to an individual whose rights have been breached; 52(1) is
available in certain situations to individuals whose rights have not been breached.
o Only a “court of competent jurisdiction” may apply and enforce s. 24(1); any court or tribunal with
power to decide questions of law is able to apply 52(1).
o S. 24(1) permits the award of a wide array of remedies; 52(1) seems to sanction only a holding of
invalidity, leaving it to the general law to authorize the specific remedy
o 24(1) bestows a discretion on the court as to whether any remedy should be awarded; 52(1) seems
to confer no discretion on the court, obliging the court to make a holding of invalidity if it
concludes that a law or act is inconsistent with or contrary to the Constitution
S. 52(1) ONLY enables a holding of invalidity as a remedy for inconsistency between a statute and the
Constitution. It does not bestow any discretion upon the courts!
• BUT in Charter cases, the courts have established “a number of variations on a simple declaration of
invalidity and have assumed the power to choose from a range of possible remedies”: Schachter v Can.
[1992] 2 S.C.R 679, 695-719 (Hogg, 40-3).
(1) Nullification: striking down the statute that is inconsistent with the Constitution.
(2) Temporary validity: striking down the statute but temporarily suspending the coming into force of the
declaration of invalidity
(3) Severance: holding that only part of the statute is inconsistent with the Constitution, striking down
only that part and severing it from the valid remainder
(4) Reading in: adding words to a statute that is inconsistent so as to make it consistent
(5) Reading down: interpreting a statute that could be interpreted as inconsistent with the Constitution so
that it is consistent
(6) Constitutional Exemption: creating an exemption from a statute that is partly inconsistent with the
Constitution so as to exclude from the statute the application that would be inconsistent with the
Constitution
Nullification
• S. 52(1): “Any law that is inconsistent with the provisions of the Constitution, is to the extent of the
inconsistency, of no force or effect”. This language mandates a court to hold an unconstitutional law is
invalid.
• If a court finds that a law is inconsistent with the Charter, the court is compelled to strike the law down
Temporary validity
• Though s. 52(1) necessitates a court to hold that an unconstitutional statute is invalid, the courts have
presumed the power to delay/suspend the operation of the declaration of invalidity.
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“The effect is to grant a period of temporary validity to an unconstitutional statute, because the statute will
remain in force until the expiry of the period of postponement” (Hogg, 40-4).
In Manitoba Language Rights [1985] 1 S.C.R. 721, the Court presumed the authority to hold that
unconstitutional laws were to be granted “temporary force and effect” to enable the Legislature time to
enact the mandated corrective legislation.
In R. v. Brydges [1990] 1 S.C.R. 190, the Supreme Court, subsequent to determining that the police were
under a constitutional obligation to advise all persons under arrest of the availability of legal aid, permitted
a “transition period” (30 days) to allow the police forces to formulate new cautions.
Severance
• This remedy is suitable when only a portion or component of a statute is found to be invalid, and the
remainder of the statute can survive without that specific part.
• Severance is not intended to change or modify the meaning or effect of the remainder of the statute that
subsists. The rest of the statute endures on its own merits. In some cases, severance is employed to amend
the defective statutory provision by omitting the text that inflicts the constitutional problem or dilemma.
• In R. v. Hess [1990] 2 S.C.R. 906, the Supreme Court eliminated from the Criminal Code statutory rape
provision “whether or not he believes that she is fourteen years of age or more” because this part omitted
the mens rea requirement. As such, it breached s.7 (it omitted the necessity of mens rea for an essential
element). The constitutional issue could be fixed by eliminating the words.
Reading in
• Schachter v. Canada [1992] 2 S.C.R. 670 concluded that vigilance was needed when exercising the newly
assumed power of reading in. In this case, the natural parents of a child made a claim to childcare benefits.
These benefits were bestowed only upon adoptive parents via the Federal Underemployment Insurance Act.
“The Act treated adoptive parents more generously than natural parents, which was agreed on appeal to be a
denial of equal benefit of the law in violation of s.15 of the Charter of Rights” (Hogg, 40-15).
• In Schachter, the defect could be cured by “reading in” the class of natural parents to the statutory provision
advancing adoptive parents.
• The Court in Schachter said “reading in” was appropriate only in “the clearest of cases”, which appeared to
insinuate cases where (1) the addition of the excluded class was consistent with the legislative objective, (2)
there seemed to be little choice as to how to cure the constitutional defect, (3) the reading in would not
involve a substantial change in the cost or nature of the legislative scheme, and (4) the alternative of striking
down the under-inclusive provision would be an inferior remedy (Id., 718 per Lamer C.J.).
• The Court concluded, “to read in natural parents would in these circumstances constitute a substantial
intrusion into the legislative domain”. The suitable solution was a declaration of invalidity suspended for an
adequate time to allow Parliament to amend and alter the Act into consistency with the Constitution.
***
Vriend v Alberta (1998) 1 S.C.R. 493
• The Court examined Alberta’s Individual Rights Protection Act, which banned discrimination in
employment, accommodation, public facilities and the supply of goods and services.
• The plaintiff had been dismissed from his employment due to his homosexuality
• He was unsuccessful in his endeavour to seek a remedy under the Act from the Alberta Human Rights
Commission due to the fact that the Act did not cover discrimination based on sexual orientation
Held:
• The Supreme Court concurred the exclusion of sexual orientation from the Act was a refutation of the
plaintiff’s equality rights under the Charter. The Court cured the constitutional defect by reading into
the statutory list of grounds of prohibited discrimination the words “sexual orientation”.
• Iacobucci J.: the addition of this language to the Act would be consistent with the objective of the Act,
could be accomplished with precision, would not greatly add to the cost of administering the Act and
would be a less intrusive remedy than striking down the Act.
Reading down
• When is reading down appropriate? It is a suitable remedy when a statute has two meanings or is capable of
two interpretations, one which would offend the Charter of Rights and the other, which would not.
• In such a situation, a court will elect the latter interpretation, which tends to be the narrower one, and hold
that this is the correct one
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When a statute is read down to circumvent a violation of the Charter, there is no holding of invalidity.
o The vindication of the Charter right is achieved entirely via interpretation.
Reading down is another doctrine of judicial restraint, as it reduces the effect of a successful Charter attack
on a law. Reading down should not be mistaken with reading in.
“Reading in involves the insertion into a statute of words that Parliament never enacted. It is not a
technique of interpretation, but rather a technique of judicial amendment, altering the statute to make it
conform to the Constitution. Reading in usually has the effect of extending the scope of the statute” (Hogg,
40-19).
Reading down consists of giving a statute a narrower interpretation to evade a constitutional dilemma that
would arise if the statute were given an expansive or wide interpretation.
Constitutional exemption
• In Big M, the Supreme Court hinted (orbiter) that it could be prepared to allow a “constitutional exemption”
for “otherwise valid legislation” that would be unconstitutional in its application to a specific group or
individual. The Sunday closing case is a good example; it appeared to be insinuated that a ban of retailing
on a Sunday could potentially be rescued by reading into the law an exclusion for those who observed
another day other than Sunday as the sabbath.
• The benefit of this remedy is that it allows “the Court to uphold a law that is valid in most of its applications
by producing an exemption for those applications that would breach the Charter.
• “The disadvantage is that the Court must define its scope and the task of definition is likely to involve
choice among a range of equally constitutional solutions; that is the kind of choice that should be made by
the legislative body itself” (Hogg, 40-19).
Reconstruction
• At some point, a court will acknowledge an unconstitutional statute is incapable of being saved or rescued,
except by alterations that are too intense, too policy-laden and too contentious to be executed out by a court.
• As Lamer CJ commented in Schachter: “In some cases, the question of how the statute ought to be
extended in order to comply with the Constitution cannot be answered with a sufficient degree of precision
on the basis of constitutional analysis. In such a case, it is the legislature’s role to fill in the gaps, not the
court’s”46
• There is one concession to the general rule that a court will not rework a law to bring it into conformity and
compliance with the Charter (i.e. courts are NOT allowed to reconstruct laws). This is the rare situation
wherein the offending law is a rule of the common law (i.e., the law itself was not created by the
government; but rather, by judges themselves).
R v Swain (1991) 1 S.C.R. 933
• The common law rule that enables the Crown prosecutor in a criminal trial to present evidence of the
accused’s insanity against the desire of the accused was under review.
Held:
• The rule breached s.7 of the Charter. The rule could be saved by s.1 if insanity were raised by the
Crown in a separate hearing, before the same trier of fact, after the end of the criminal trial, and which
would only materialize if the accused had been found guilty of the offence charged.
• The Court held it was not obligatory to strike down the existing law. Because the existing law was a
rule of the judge-made common law, not statute, the Court had the power to replace the existing
rule with a new rule that complied with the Charter. The Court therefore simply declared that a new
rule, fashioned by it to comply with the Charter, was now the law!” (Hogg, 40-26).
Limitation of actions
• An action or any other type of proceeding for a declaration that a law is unconstitutional is not subject to
any limitation period.
• If the reviewing court finds that the statute is unconstitutional, “then the statute will be declared to have
been unconstitutional from its inception and the newly discovered rights and obligations that flow from the
retroactive disappearance of the statute will take effect automatically” (Hogg, 40-26.1).
46
Schachter v. Canada [1992] 2 S.C.R. 679, 705
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Remedy Clause
a) Section 24(1)
• Section 24(1): Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or
denied may apply to a court of competent jurisdiction to obtain such a remedy, as the court considers
appropriate and just in the circumstances.
• S.24 (1) provides for the according of a remedy to enforce the rights or freedoms guaranteed by Charter
b) Applicable to Charter only
• Section 24(1) is available only for a breach or violation of the Charter
• It is not a remedy for unconstitutional action in general.
c) Non-exclusive remedy
• Section 24(1) is not the only antidote for a violation of the Charter of Right.
• The supremacy clause of s. 52(1) renders a law “of no force or effect” if it is contrary to, or inconsistent
with, the Constitution. S. 52(1) empowers a court to hold that a law that abridges a Charter right is invalid.
• An administrative tribunal will be “a court of competent jurisdiction” for the purpose of s. 24(1) if it has the
power to decide questions of law.
• S. 24(1) is not necessary in terms of a Charter remedy in a situation where a holding of invalidity is all the
applicant needs or even wants to achieve an appropriate remedy that is available under general law.
• Section 24(1) is only essential where a remedy offered by the general law is not available or accessible for
one reason or another or will not offer gratifying or satisfactory redress.
• Typically, it will be the declaration of invalidity under s. 52(1) that provides the remedy for laws that breach
a Charter right, whilst s. 24(1) offers a remedy for government acts that violate a person’s Charter right.
• Section 24(1) provides a “personal remedy against unconstitutional government action” (R. v.
Ferguson [2008] 1 S.C.R. 96, para. 61 per McLachlin C.J.)
o “That is why the only person who is standing to seek a remedy under s. 24(1) is the very person
whose Charter right has been infringed” (Hogg, 40-28).
• Sometimes, Charter claimants have sought individual relief under s. 24(1) in the same proceeding they have
sought a declaration of invalidity under s. 52(1). Technically, there is no excuse why both remedies should
not be available in the same proceeding in the rare case where both remedies are necessary to offer full
relief (Schachter v. Canada [1992] 2 S.C.R. 679, 720 per Lamer C.J.).
d) Standing
• An individual must have “standing” in order to apply for a remedy under s. 24(1).
• Standing is granted to “anyone” whose Charter rights “have been infringed or denied”. This imposes more
rigid requirements of standing than are applicable to many remedies under the general law.
• A corporation cannot attain a remedy under s. 24(1) for a denial of freedom of religion, as a corporation
cannot hold a religious belief. But in Big M, the Supreme Court held a corporation could defend a criminal
charge under a Sunday closing law on the premise the law was a denial of the freedom of religion of
individuals. The fact that the corporation had no standing under s. 24(1) to challenge the law was
immaterial.
• “Sometimes a person, motivated by public interest, wishes to make a Charter challenge to a statute that does
not even apply to the challenger. This cannot be done under s.24(1)” (Hogg, 40-30). But, in the case of
Minister of Justice v Borowski (1981) 2 S.C.R. 575, the Court allowed standing to an anti-abortion activity
to bring an action for a declaration that the Criminal Code’s abortion provisions were unconstitutional.
Because the applicant was not a doctor NOR a woman, those provisions could never actually be applied to
the applicant; nonetheless, the Court granted him standing nonetheless
e) Apprehended Infringements
• It appears to be generally recognized that the imminent threat of a Charter breach will satisfy s. 24(1).47
• For instance, s. 24(1) will permit a remedy for English-speaking parents who are refuted by statute their
Charter right under s.23 to send their children to an English-speaking school, even if the application is made
prior to the school year commencing and thus, before any parent’s child has actually been declined entry.
47
Gibson, The Law fo the Charter: General Principles (1986), chs. 6,8 195-198; Cromwell, Locus Standi (1986), 99-100.
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f) Court of competent jurisdiction
• Section 24(1)’s remedies may be granted only by a “court of competent jurisdiction”
• The authority to make a finding of invalidity on Charter grounds under supremacy clause of s. 52(1) is not
confined to a Court of competent jurisdiction but is held by any court or tribunal (with power to decide
questions of law) before which the validity of the law is brought into disputation.
• The significance of this phrase is pertinent only to the availability of a remedy under s. 24(1)
• A superior court, which is a court of general jurisdiction, is always a court of competent jurisdiction.
Moreover, the authority of a superior court to grant a remedy under s. 24(1) cannot be restricted by statute.
• Thus, an application for a remedy under s. 24(1) can always be made to a superior court. Remember, a
remedy made under s.24(1) is discretionary; as such, an application for an award will not always be
successful if a Charter breach is demonstrated.
• “A trial court, even if it is not a superior court, is a court of competent jurisdiction to hear an application for
a remedy that relates to the conduct of the trial…It is the trial judge who is in best position to assess what
remedy is just and appropriate” (Hogg, 40-32).
• The Supreme Court has held a judge executing a preliminary inquiry into a criminal charge is not a court of
competent jurisdiction.
o This implicates that a preliminary inquiry judge has no authority to stay proceedings on the ground
of unreasonable delay under s.11 (b), and no power or authority to omit evidence on the basis that
the evidence was acquired in breach of the Charter.
• Can an administrative tribunal be a court of competent jurisdiction?
o The Supreme Court of Canada answered yes to that question in 1995; the Court held that an
administrative tribunal was a court of competent jurisdiction if its constituent statute gave it
authority over (1) the parties to the dispute, (2) the subject matter of the dispute and (3) the Charter
remedy that was sought (Weber v Ontario Hydro [1995] 2S.C.R. 929)
• In R. v. Conway [2010] 1 S.C.R. 765, the Court found that the Board was indeed a court of competent
jurisdiction due to the fact that it was granted authority by the Criminal Code to determine questions of law.
• Once it is established that an administrative tribunal is a court of competent jurisdictions, the outstanding
inquiry is if the tribunal can bequest the remedy sought.
g) Range of remedies
• Section 24(1) does constrain the range of remedies by the phrase “such remedy as the court considers
appropriate and just in the circumstances”.
• Although, this phrase grants discretion to the court, the cases are gradually establishing principles that will
structure and confine the discretion.
• “Subject to the important qualification that a remedy must be appropriate and just in all the circumstances of
the case, there is no limit to the remedies that may be ordered under s. 24(1)” (Hogg, 40-36).
o They consist of “defensive” remedies: where the court annuls or ceases some law or act.
o They also encompass “affirmative”’ remedies: i.e. ordering a province to offer state-funded
counsel to an indigent litigant (New Brunswick v. G. (J.) [1999] 3 S.C.R. 46) or ordering the return
of goods improperly seized (Re Chapman (1984) 46 O.R. (2d) 65 (C.A.))
• It has been suggested the court’s discretion should be governed by three factors (Hogg, 40-37)48:
(1) The redress of the wrong suffered by the applicant;
(2) The encouragement of future compliance with the Constitution; and
(3) The avoidance of unnecessary interference with the exercise of governmental power
o A fourth may be added: (4) the ability of the court to administer the remedy awarded; however,
L’Heureux-Dube J stressed that each case will also present its own special set of considerations.
g.1) Declaration
• This is a remedy that pronounces the legal position but does not actually order the defendant to execute any
action or do anything.
• Nonetheless, a mere declaration that the government is in default of its Charter obligations and
responsibilities would almost always be observed and would thus typically be an effectual remedy.
• The declaration is particularly suitable if the court is uncertain as to what would be the appropriate remedial
action by government and is satisfied and happy to leave that decision to the government – “informed,
48
R. v. O’Conner [1995] 4 S.C.R. 411.
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obviously, by the court’s reasons for holding that the government is in breach of the Charter” (Hogg, 4037).
In Canada v. Khadr [2010] 1 S.C.R. 44, the Court only granted a declaration that the Charter rights of the
accused has been violated. The Court decided to leave it to the government to decide “a measure of
discretion in deciding how best to respond” (Id., para.2).
g.2) Damages
• The award of damages is occasionally a fitting and just remedy for a violation of the Charter.49
***
Vancouver v Ward (2010) 2 S.C.R. 28
• A Vancouver lawyer (plaintiff) was erroneously identified by the police as an individual who was
planning to throw a pie at the Prime Minister, who was attending a public ceremony.
• The police handcuffed the plaintiff and when he objected and created a scene, they arrested him and
took him to a temporary holding facility.
• They strip-searched him and held him in a cell for over four hours before releasing him; no charges were
laid. During this time, the police also seized his vehicle; they didn’t have sufficient evidence to obtain a
warrant to search it and gave it back to him when he was discharged.
• The plaintiff sued; at trial he was awarded damages under s. 24(1) of $5000 from the province for the
strip search in breach of s.8 (unreasonable search and seizure) and $100 from the city for seizure of the
car (another breach of s.8). He was also awarded damages of $5000 from the city for the tort of
wrongful imprisonment.
• The awards of Charter damages were appealed.
Held:
• The Supreme Court agreed the plaintiff’s rights under s.8 had been breached and upheld the award of
damages for the strip search, but held a declaration was an adequate remedy for the seizure of the car
($100).
• McLachlin C.J. held that damages were an appropriate and just remedy for breach of the Charter
when they served a useful function.
• That function was threefold: not only (1) to compensate the plaintiff for his loss, but also (2) to vindicate
Charter rights and (3) to deter and avert future Charter violations (para. 25)
• Since vindication (exoneration) and “deterrence pursued societal goals, Charter damages under s.24(1)
would not necessarily be the same as common-law damages (which are purely compensatory” (Hogg,
40-39).
• The Court upheld the trial judge’s ward of $5000 damages for the strip search on the premise that his
shameful experience should receive some compensation, and that the functions of vindication and
deterrence also rationalized some damages.
• However, the Court displayed no affinity for merely symbolic awards of damages and reversed the trial
judge’s award of $100 for the seizure of the plaintiff’s car: this inflicted no harm or injury, the car was
not searched and despite the fact that the seizure was a breach of s.8, it was not a severe one. For that
infringement, the remedy of a declaration, which was adequate to satisfy the functions of vindication
and deterrence, was all that should be granted (paras. 74-78).
• NOTE: If private actions in tort would sufficiently address the Charter breach, then Charter damages
would be duplicative and should not be awarded.
g.3) Costs
• In some cases, the award of cost is a suitable and just remedy for those Charter violations that inflict and
cause inconvenience or delay to a litigant.
• “The Supreme Court has upheld an award of cost against Crown for delay in making disclosure, although
the Court warned this remedy was appropriate and just only in exceptional cases” (Hogg, 40-41). R. v.
974649 [2001] 3 S.C.R., para 87 per McLachlin C.J.: “costs awards will not flow from every failure to
disclose in a timely fashion” but are limited to “circumstances of a marked and unacceptable departure from
the reasonably standards expected of the prosecution”.50
49
50
M.L. Pilkington, “Damages as a Remedy for Infringement of the Canadian Charter of Rights and Freedoms” (1986) 62 Can. Bar Rev. 517.
This is called the Dunedin case.
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Where the applicable legislation does not preclude it, section 24(1) is available in appropriate cases to
override the general rule that in criminal cases the Crown neither pays nor receives costs unless the case is
governed by statute or there exist exceptional circumstances.
“A provincial offences court can grant legal costs against the Crown for conduct in a criminal or regulatory
prosecution that constitutes, at a minimum, “a marked and unacceptable departure from the reasonable
standards expected of the prosecution” in violation of the Charter (Dunedin at paragraph 87)”.51
An award of costs against the Crown in criminal and regulatory matters for breaching a person’s Charter
rights is fitting when the Crown’s conduct or actions threaten (risk) trial fairness but may not warrant a stay
of proceedings (Dunedin at paragraphs 80-89).
g.4) Exclusion of evidence
• If evidence has been attained in violation of the Charter, it may be excluded as a remedy for the Charter
breach. However, that being said, this remedy is regulated by s 24(2), which provides that the evidence shall
only be excluded (omitted) if its admission “would bring the administration of justice into disrepute”.
• In R. v. White [1999] 2 S.C.R. 417, an accident report was omitted from the accused’s trial for leaving the
scene of the accident. “The exclusion was ordered under s. 24(1) on the ground that the admission of the
accused’s report would offend one of the principles of fundamental justice under s.7, the principle of selfincrimination” (Hogg, 40-42).
• Due to the fact that the exclusion of relevant and material evidence impairs and harms the truth-seeking
function of a trial, the usual (and appropriate) remedy in a situation wherein the Crown does not disclose in
timely manner should be an adjournment of the trial to offer the defence time to review new evidence
• The exclusion of the new evidence should be ordered only in exceptional cases impacting the fairness of the
trial or the integrity and veracity of the justice system
g.5) Remedies outside s. 24(1)
• It is not always necessitous for a court to depend on s. 24(1) to remedy a Charter breach.
• In R. v. Nasogaluak [2010] 1 S.C.R. 206, the accused had pleaded guilty and been convicted of impaired
driving and running from the police. These crimes would typically attract imprisonment. The trial judge
chose to grant the accused a 12-month conditional discharged joined with a 12-month driving ban.
• In Nasogaluak, the Supreme Court concurred that there had been a violation of s.7, and that this breach
rationalized a shortened sentence for the accused. Nonetheless, the Court found that the trial judge
erroneously relied upon s.24(1) as the justification for the reduced sentence. Sentence reduction was not an
appropriate or fitting remedy under s.24(1), except in the unique and rare case where it was the “sole
effective remedy” for a Charter infringement (paras. 6, 64).
• In Nasogaluak, the police infringement of the Charter rights of the accused was accurately taken into
consideration in adjusting the accused’s sentence without the need to invoke s.24(1). The Court upheld the
reduced sentence. The inference of this case is that “s.24(1) is a remedy of last resort, to be invoked ONLY
where a Charter breach cannot be remedied by the application of the general law…if a tort action would
provide adequate redress for the harm suffered from the Charter breach, then no damages should be
awarded under s.24(1)” (Hogg, 404-43)
h) Supervision of court orders
• In Doucet-Boudreau v. Nova Scotia [2003] 3 S.C.R. 3, the judge ordered that the Nova Scotia government
build French-language schools. The order was made under s.24(1). The function of the order was to bolster
and enforce the guarantee of minority language educational rights as per s.23 of the Charter. The order was
unique as it stipulated not only the dates by which each school was to be built, but also stated that “Court
shall retain jurisdiction to hear reports from the government respecting the government’s compliance with
the order”. The question in this case was whether a judge could retain jurisdiction to supervise compliance
with a remedial order under s.24(1). The Court responded “yes”.
• “Canada has maintained a tradition of compliance by governments and public servants with judicial
interpretations of the law and court orders”. Court was entitled to assume compliance and should “resist the
temptation to directly oversee and supervise the administration of their orders” (para.106).
51
Department of Justice, Government of Canada. Section 24(1) – Remedies. https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrfccdl/check/art241.html
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i) Appeals
• Section 24(1) does NOT permit or authorize an appeal from the decision of a court of competent jurisdiction
• Such a right of appeal will rely upon the rules of the court to which the s. 24(1) application was made.
• “Where there is no existing right of appeal, as will often be the case in applications in criminal proceedings
before the trial is over, there will be no appeal from the Charter ruling by the court of competent
jurisdiction” (Hogg, 40-46).
• In Know Contracting v. Canada 2 S.C.R. 338, the Court held there was no appeal from a rejection from a
judge to quash a search warrant issued under the Income Tax Act. It reached this holding due to the fact that
neither the Income Tax Act nor the Criminal Code stipulated any right of appeal.
j) Limitation of Actions
• Regardless, if proceedings are brought under s. 24(1) or under the general law for a “personal remedy” (i.e.
damages; not a declaration of invalidity via s.52(1)), statutes of limitation of general application will apply
to the proceedings.
• In terms of limitation periods, the policy justifications and rationale for bringing finality to disputes and
alleviating defendants of the risk of stale and stagnant claims, when evidence is likely to be lost, unreliable,
or capricious, do not go away whenever a claimant invokes the constitution.
• The leading case on limitations of actions is Kingstreet Investments v. New Brunswick [2007] 1 S.C.R. 3. In
this case, taxpayers brought an action against the Crown [in right of New Brunswick] in order to recover
taxes that had been imposed by the Provincial legislature. The Provincial Legislature lacked constitutional
authority to impose these taxes. As such, the cause of action was premised on the unconstitutionality of the
taxes; however, s.24(1) was did not apply, as there had been no infringement of the Charter.
• In Kingstreet, the Supreme Court found that the plaintiffs were entitled to recover the taxes, but held the
recovery was subject to the limitation statute of the province, which consisted of a residuary limitation
period of six years following the date of when the cause of action arose. “That period applied to the
plaintiffs’ action, and their recovery was accordingly limited to those taxes that had been paid during the
six-year period preceding the commencement of the action” (Hogg, 40-48).
Administrative Tribunals
a) With power to decide questions of law
• It is possible for the administrative tribunals determine Charter issues.
• In the case of Douglas/Kwantlen Faculty Association v. Douglas College [1990] 3 S.C.R. 570, the Court
held that an arbitration board had the authority to decide the constitutionality of a mandatory retirement
provision in the collective agreement. The arbitration board had been appointed by the parties under a
collective agreement, however, it was also authorized by statute to determine questions of law.
• In Cuddy Chicks v. Ontario [1991] 2 S.C.R. 5, “the Court held that a labour relations board, which had been
created and empowered by statute to decide questions of law, had the authority to decide the
constitutionality of a provision in the empowering statute that denied collective bargaining rights to
agricultural workers” (Hogg, 40-51).
• The authority to determine and decide the Charter issues in both cases did not come from s.24 of the
Charter. Section 24’s remedies are available only to a court of competent jurisdiction.
• The Supreme Court has since decided that an administrative tribunal with power to decide questions of law
is a court of competent jurisdiction
• In both cases, section 24 was not relevant, as the applicants were not seeking any remedy for infringement
of the Charter, not even a declaration of invalidity.
• Where an administrative tribunal commits itself to and determines a constitutional question, its decision will
be subject to judicial review by a superior court.
• The Supreme Court has maintained that an administrative tribunal has NO authority or power to make a
declaration of invalidity.
• In both Douglas College and Cuddy Chicks, the tribunals’ empowering statutes explicitly granted to them
the authority to resolve questions of law.
• In two successive decisions, the Supreme Court held that the deficiency of an express power to decide
questions of law barred an administrative tribunal from deciding Charter issues (Tetreault-Gadoury v Can
[1991]; Cooper v. Can. [1996] 2 S.C.R. 22)
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•
•
Almost all tribunals have an IMPLIED (implicit) power to decide all questions of law that are relevant or
material to reaching decisions that are called for by their mandate (McLeod v. Egan [1975] 1 S.C.R. 517).
Supreme Court has now renounced the two rulings that postulated only an express grant of power over
questions of law would sanction an administrative tribunal to decide whether a potentially applicable law
breaches the Charter.
b) Without power to decide questions of law
• Administrative tribunals that do not hold the power to determine questions of law also lack the power to
decline to apply laws on the ground of unconstitutionality
• The Supreme Court has held the power to decide questions of law may be implied as well as express.
• This implicates that most administrative tribunals with adjudicative functions will obtain the power to
decide questions of law.
c) Preliminary inquiry judge
• In R. v. Seaboyer [1991] 2 S.C.R. 577, the Supreme Court held that the preliminary inquiry judge of an
indictable offence had no jurisdiction under s. 52(1) of the Constitution to decide the constitutionality of a
rape-shield law, which purported to restrict accused’s right to cross-examine the victim of a sexual assault.
• The Court in Seaboyer recognized that the preliminary inquiry judge would in the course of conducting the
inquiry have the power and obligation to rule on the admissibility of the evidence adduced at the inquiry.
However, this power did not stretch to determining the constitutionality of a statute that purported to ban the
admission of evidence. To decide if there was adequate evidence to make the accused stand trial, the
preliminary inquiry judge was compelled “to accept the rules of evidence as they stand” (Id., 638).
• The holding in Seaboyer precedes Martin and Paul (see above under part (a)) and is not consistent with
those decisions. Peter Hogg believes it is safe to regard Seaboyer as impliedly overruled (40-59).
• The preliminary inquiry judge does indeed hold the power to determine constitutional inquiries that
impact the validity of the charge or admissibility of the evidence tendered in support of the charge.
***
Ontario (Attorney General) v. G, 2020 SCC 38
• A principled approach must be adhered to when establishing suitable remedies for legislation that breach the
Charter. Section 52(1) of the Constitution provides that laws inconsistent with the Constitution are of no
force or effect to the extent of that inconsistency.
• A general declaration is the means by which courts give full effect to the broad terms of s. 52(1). A court
faced with a constitutional challenge to a law must determine to what extent it is unconstitutional and
declare it to be so.
• The Court’s leading decision on remedies for laws that violate the Charter, Schachter v. Canada, [1992] 2
S.C.R. 679, provides helpful guidance on how to craft a responsive and effective remedy for
unconstitutional laws.
• Schachter set out a general approach to granting remedies. It endorsed remedies tailored to the breadth of
rights violations, thereby allowing constitutionally compliant aspects of unconstitutional legislation to be
preserved, and recognized that, in rare circumstances, the effect of a declaration of invalidity could be
suspended for a period of time to protect the public interest. Schachter also considered how s. 52(1)
remedies can be combined with individual remedies for Charter violations, including whether the claimant
should receive an individual exemption from a suspension, thereby ensuring that successful claimants can
enjoy the immediate benefit of a declaration of invalidity.
• As per s. 52(1), the first step in drafting an appropriate remedy is determining the extent of the legislation’s
inconsistency with the Constitution. The nature and extent of the Charter violation lays the foundation for
the remedial analysis, as the breadth of the remedy ultimately granted will reflect at least the extent of the
breach.
• The second step is determining the form that a declaration should take. Remedies other than full
declarations of invalidity should be granted when the nature of the violation and the intention of the
legislature allows for them. But, if granted in the wrong circumstances, tailored remedies can intrude on the
legislative sphere.
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