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CONSTITUTIONAL LAW
Parliamentary privilege
BASIC CONCEPTS
- The federal Houses of Parliament and the provincial legislative assemblies
possess a set of powers and privileges that are necessary to their capacity to
[1] SOURCES AND NATURE OF THE CONSTITUTION
function as legislative bodies; these powers and rights are known collectively as
parliamentary privilege (e.g. freedom of speech in debate)
Constitution Act, 1867
- See discussion in Canada v Vaid
- The British North America Act was renamed the Constitution Act, 1867, in
- Source = part of “Constitution of Canada (New Brunswick v Canada); but Hogg
1982
criticizes this a bit
-
Established the rules of Federalism, but did not attempt to codify all
constitutional rules. Left open possibility for constitutional conventions.
Case law
- There are several gaps in this Act, however
- Another important source of constitutional law (e.g. unwritten principles
developed in case law: see Rumeration of Judges; Secession Reference)
Constitution Act, 1982
- SCC has carved out an active and creative role in interpreting the Constitution.
- This Act did 3 main things to Canada’s constitutional law: (1) An amending
This raises the concern that the Court is trespassing into fields more properly left
formula was adopted; (2) The authority over Canada of the UK (imperial)
to the legislative and executive branches of government
Parliament was terminated; (3) and the Charter was adopted
- The phrase “Constitution of Canada” was used for the first time in this Act
Royal prerogative
- The definition of the Constitution of Canada “includes” 3 categories of
- Consists of the powers and privileges accorded by the common law to the
instruments – (1) Canada Act 1982 (which includes the Constitution Act, 1982);
Crown; it is a branch of common law, because it is the decisions of the courts
(2) A list of 30 Acts and orders (including the Constitution Act, 1867); (3)
which have determined its existence and extent
Amendments which may be made. The Charter of rights and Freedoms is part of
the Constitution of Canada because it is Part I of the Constitution Act, 1982
- The “supremacy clause” is also found in this act: s 52(1)
Conventions
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- Conventions are rules of the constitution that are not enforced by courts.
an understanding of the constitutional text itself, the historical context, and
Because they are not enforced as such, they are best regarded as non-legal rules,
previous judicial interpretations of constitutional meaning.
but because they do regulate the working of the constitution, they are important to
 There are FOUR fundamental and organizing principles of the
know
Constitution which are relevant to addressing the question before us (although
- Conventions prescribe the way in which legal powers should be exercised.
this enumeration is by no means exhaustive): federalism; democracy;
Their breach, however, does not give rise to legal remedies.
constitutionalism and the rule of law; and respect for minorities
- An important conventions case is the Patriation Reference (see the discussion
in the book)
Nature of principles
 These principles inform and sustain the constitutional text; they are the vital
Reference re Secession of Quebec
unstated assumptions upon which the text is based. The following discussion
Background
addresses the four foundational constitutional principles that are most germane for
 This Reference requires consideration of complex legal and constitutional
resolution of this Reference: federalism, democracy, constitutionalism and the
questions, and it isn’t possible to answer the questions without having regard to a
rule of law, and respect for minority rights. These defining principles function in
number of underlying principles
symbiosis. No single principle can be defined in isolation from the others, nor
 The Constitution Act, 1982 is now in force. Although the Constitutional
does any one principle trump or exclude the operation of any other.
texts have a primary place in determining constitutional rules, they are NOT
exhaustive. The Constitution also embraces UNWRITTEN rules
Use of unwritten principles
 These supporting principles and rules, which include constitutional
 The principles assist in the interpretation of the text and the delineation of
conventions and the workings of Parliament, are a necessary part of our
spheres of jurisdiction, the scope of rights and obligations, and the role of our
Constitution because problems or situations may arise which are not expressly
political institutions. Equally important, observance of and respect for these
dealt with by the text of the Constitution.
principles is essential to the ongoing process of constitutional development and
 In order to endure over time, a constitution must contain a comprehensive set
evolution of our Constitution as a "living tree", to invoke the famous description
of rules and principles which are capable of providing an exhaustive legal
in Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136
framework for our system of government. Such principles and rules emerge from
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 The effect of the preamble to the Constitution Act, 1867 was to incorporate
the other. Each is assigned respective spheres of jurisdiction by the
certain constitutional principles by reference
Constitution Act, 1867. In interpreting our Constitution, the courts have always
 In the Provincial Judges Reference, we determined that the preamble "invites
been concerned with the federalism principle, inherent in the structure of our
the courts to turn those principles into the premises of a constitutional argument
constitutional arrangements, which has from the beginning been the lodestar by
that culminates in the filling of gaps in the express terms of the constitutional
which the courts have been guided. This underlying principle of federalism, then,
text"
has exercised a role of considerable importance in the interpretation of the written
 Underlying constitutional principles may in certain circumstances give rise
provisions of our Constitution. In the Patriation Reference, supra, at pp. 905-9,
to substantive legal obligations (i.e they have "full legal force", as we described
we confirmed that the principle of federalism runs through the political and legal
it in the Patriation Reference, supra, at p. 845), which constitute substantive
systems of Canada.
limitations upon government action. These principles may give rise to very
The principle of federalism recognizes the diversity of the component
abstract and general obligations, or they may be more specific and precise in
parts of Confederation, and the autonomy of provincial governments to
nature.
develop their societies within their respective spheres of jurisdiction
 So, the principles are not merely descriptive, but are also invested with a
The principle of federalism facilitates the pursuit of collective goals by
powerful normative force, and are binding upon both courts and
cultural and linguistic minorities which form the majority within a particular
governments
province.
 In other words", as this Court confirmed in the Manitoba Language
speaking Canadians to form a numerical majority in the province of Quebec, and
Rights Reference, "in the process of Constitutional adjudication, the Court
so exercise the considerable provincial powers conferred by the Constitution Act,
may have regard to unwritten postulates which form the very foundation of
1867 in such a way as to promote their language and culture. It also made
the Constitution of Canada"
provision for certain guaranteed representation within the federal Parliament itself
The federal structure adopted at Confederation enabled French-
(2) Democracy
(1) Federalism
 The principle of democracy has always informed the design of our
 It is undisputed that Canada is a federal state. In a federal system of
constitutional structure, and continues to act as an essential interpretive
government such as ours, political power is shared by two orders of
consideration to this day. The democracy principle can best be understood as a
government: the federal government on the one hand, and the provinces on
sort of baseline against which the framers of our Constitution, and subsequently,
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our elected representatives under it, have always operated. It is perhaps for this
(3) Constitutionalism and the Rule of Law
reason that the principle was not explicitly identified in the text of the
 The 'rule of law' is a highly textured expression, importing many things which
Constitution Act, 1867 itself
are beyond the need of these reasons to explore but conveying, for example, a
Democracy is commonly understood as being a political system of
majority rule.
Democracy encompasses a number of values, including:
sense of orderliness, of subjection to known legal rules and of executive
accountability to legal authority".
respect for the inherent dignity of the human person, commitment to social
At its most basic level, the rule of law vouchsafes to the citizens and
justice and equality, accommodation of a wide variety of beliefs, respect for
residents of the country a stable, predictable and ordered society in which to
cultural and group identity, and faith in social and political institutions
conduct their affairs. It provides a shield for individuals from arbitrary state
which enhance the participation of individuals and groups in society.
action.
In institutional terms, democracy means that each of the provincial
legislatures and the federal Parliament is elected by popular franchise.
In individual terms, the right to vote in elections to the House of
Commons and the provincial legislatures, and to be candidates in those
elections, is guaranteed to "Every citizen of Canada" by virtue of s. 3 of the
Charter.
The relationship between democracy and federalism means, for example,
3 Elements of Rule of Law: i) One law for all; ii) there is an actual order of
positive laws that preserves and embodies the normative order; iii) the
relationship b/w the state and the individual must be regulated through a series of
legal rules.
Importance of Rule of Law cannot be overemphasized; this principle is
the key to understanding the legal framework of the State. This is the
fundamental principle of legality; the ultimate foundation of the
that in Canada there may be different and equally legitimate majorities in different
Constitution.
provinces and territories and at the federal level. No one majority is more or less
 Const’ism is simply that the gov’t must comply with the Constitution
"legitimate" than the others as an expression of democratic opinion, although, of
course, the consequences will vary with the subject matter
Democracy in any real sense of the word cannot exist without the rule of law.
(4) Protection of Minorities:
 There are a number of specific constitutional provisions protecting minority
It is the law that creates the framework within which the "sovereign will" is to be
language, religion and education rights.
Undoubtedly, the three other
ascertained and implemented. To be accorded legitimacy, democratic institutions
constitutional principles inform the scope and operation of the specific provisions
must rest, ultimately, on a legal foundation
that protect the rights of minorities. The concern of our courts and governments
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to protect minorities has been prominent in recent years, particularly following the
 Some-but-not-all-provinces procedure (s 43): There are provisions of the
enactment of the Charter. Undoubtedly, one of the key considerations motivating
Constitution of Canada which apply to one or more, but not all provinces. For
the enactment of the Charter, and the process of constitutional judicial review that
amendments of this kind, s 43 requires authorizing resolutions of only those
it entails, is the protection of minorities.
provinces to which the amendment applies
 Federal parliament alone (s 44): Federal Parliament, by ordinary legislation,
COMMENT: These principles are: not exhaustive (complete, thorough); must
can amend parts of the Constitution of Canada which relate to the “Executive
be taken together; no single principle trumps another.
government of Canada or the Senate and House of Commons”
 Provincial legislature alone (s 45): Each provincial Legislature authorized,
[2] AMENDING PROCEDURES AND SECESSION
by ordinary legislation, to amend the “constitution of the province”. That term
isn’t defined, but has been interpreted to include amending law “that bears on the
-
See Constitution Act, 1982, Part V, ss 38-49 (these provisions override the
operation of an organ of government of the province”.
Supreme Court’s ruling in Patriation Reference)
Secession
Part V of Constitution Act, 1982:
Reference re Secession of Quebec
 General amending procedure (s 38) (50-70 formulae): Applies when the
Operation of Constitutional Principles in the Secession Context
other, more specific, procedure don’t apply, and for those matters listed in s 42 (s
 The secession of a province from Canada must be considered, in legal
42 requires that the general amending procedure be used for six defined classes of
terms, to require an amendment to the Constitution. The amendments
amendments to the Constitution).
necessary to achieve a secession could be radical and extensive.
Requires amendment to be authorized by
resolutions by both Houses of Federal Parliament, and resolutions of the

legislative assemblies of at least 2/3 of provinces, provided they represent at least
considerable weight be given to a clear expression by the people of Quebec of
50 % of population. See time limits (s 39(1) and (2), and opting out provision (s
their will to secede from Canada, even though a referendum, in itself and
38(3)).
without more, has no direct legal effect, and could not in itself bring about

Unanimity procedure (s 41):
List of matters whose alteration in the
Constitution requires agreement by all provinces
But the democratic principles identified above would demand that
unilateral secession – the secession of a province would have to occur by way of
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an amendment to the Constitution; it would be these negotiations that would help
 Any attempt to effect the secession of a province from Canada must be
develop the appropriate amendment
undertaken pursuant to the Constitution of Canada, or else violate the
 The federalism principle, in conjunction with the democratic principle,
Canadian legal order. However, the continued existence and operation of the
dictates that the clear repudiation of the existing constitutional order and the
Canadian constitutional order cannot remain unaffected by the unambiguous
clear expression of the desire to pursue secession by the population of a province
expression of a clear majority of Quebecers that they no longer wish to remain in
would give rise to a reciprocal obligation on all parties to Confederation to
Canada
negotiate constitutional changes to respond to that desire. The rights of other
provinces and the federal government cannot deny the right of the government of
Quebec to pursue secession, should a clear majority of the people of Quebec
[3] FEDERALISM
choose that goal, so long as in doing so, Quebec respects the rights of others
 The conduct of the parties in such negotiations would be governed by the
Federalism
same constitutional principles which give rise to the duty to negotiate:
- In a federal state, governmental power is distributed between a central authority
federalism, democracy, constitutionalism and the rule of law, and the
and several regional authorities, in such a way that every individual in the state is
protection of minorities
subject to the laws of the two authorities
 Negotiations would be political issues. But the non-justiciability of political
- The central and regional authorities are “coordinate” – i.e. neither is subordinate
issues that lack a legal component does not deprive the surrounding constitutional
to the other
framework of its binding status, nor does this mean that constitutional obligations
could be breached without incurring serious legal repercussions.
Confederation

To the extent that a breach of the constitutional duty to negotiate in
- In Canada, contrary to usage of the word confederation outside Canada, a central
accordance with the principles described above undermines the legitimacy of a
government was established which was in no sense the delegate of the provinces.
party's actions, it may have important ramifications at the international level
It was independent of the provinces and coordinate with them

The secession of Quebec from Canada cannot be accomplished by the
National Assembly, the legislature or government of Quebec unilaterally, that is
to say, without principled negotiations, and be considered a lawful act
Special status
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- Special status is the term which has applied to proposals for constitutional
DISTRIBUTION OF POWERS
change under which one province would possess large powers than the other
provinces. Although a number of provisions in the Constitution apply to one
[1] PRINCIPLES OF INTERPRETATION
province or some, it cannot be said that there is a special status for any province
- It is the distribution of powers b/w a central authority (federal Parliament) and
Supremacy of the Constitution
regional authorities (provincial legislatures) that constitutes the essence of
- s 52(1) of the Constitution Act, 1982 expressly affirms the supremacy of the
federalism.
Constitution over all other laws
- The Constitution defines the kinds of laws that may be enacted by federal
Parliament and provincial Legislatures
Role of the courts
- This part examines the techniques, language and doctrines applied by courts in
- The provisions of the Constitution distributing legislative power are couched in
carrying the review of distribution of powers questions (i.e. challenges on
general language, not free of ambiguity. Any federal system therefore has to have
“federal” grounds)
machinery for settling disputes about the distribution of legislative power’
-
- S 52(1) states that the Constitution is the supreme law of Canada, and “any law
provincial Legislatures is mainly set out in ss 91 and 92 of the Constitution Act,
that is inconsistent with the provisions of the Constitution is, to the extent of the
1867
The distribution of legislative power b/w the federal Parliament and the
inconsistency, of no force or effect.” This section is the basis for judicial review
in Canada
Priority between federal and Charter grounds
-
- Federal arguments should precede Charter ones. And if you are arguing both,
Courts often have to enforce distribution of powers rules (the rules of
federalism): the courts have to determine whether a particular statute comes
you should frame the Charter argument as one “in the alternative”
within the powers conferred by the Constitution on the legislative body that
enacted the Statute
Process/reasoning in judicial review
- A second function of judicial review is to enforce the Charter restrictions and
- Two steps are involved:
the other non-federal restrictions
STEP 1: the characterization of the challenged law
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STEP 2: the interpretation of the power-distributing provisions of the
Constitution
- The singling out of undertakings is not conclusive of pith and substance
- E.g. A taxing statute, although it applied to other corporations as well as banks,
did impose a special tax rate on banks alone; yet, the law was characterized as in
STEP 1: Characterization of laws
relation to taxation, not banking (Bank of Toronto v Lambe)
(a) “Matter” and the “pith and substance doctrine”
- The first step is to identify the matter of the challenged law, i.e., identify the
dominant or most important characteristic of the challenged law (the pith and
(c) “Double aspect” ***
substance).
- A law that may be enacted by either Parliament or a provincial legislature is
- Court will look beyond the direct legal effects to inquire into, for example, the
what the double aspect doctrine refers to; laws prescribing rules of conduct on the
social or economic purposes which the statute was enacted to achieve. If the
roads have a double aspect, and are therefore competent to both the Parliament
Court concludes that the purpose of, for e.g., an ostensible tax is to regulate or
and a Legislature. Securities regulation is another field where some laws have a d
destroy the banks, then the law will be characterized as being in relation to
0ouble aspect
banking and will be held to be invalid if it was enacted by a province
- When do you apply this doctrine? Courts are not clear about this. But one dude
- Difficulty is where statute has features which come within a provincial AND
says that it is applicable when the contrast between the relative importance of the
federal head of power. Here, you make a judgment as to which is the most
two features is not so sharp.
important feature of the law and characterize the law by that feature (the dominant
provincial characteristics of a law are roughly equal in importance, then the
feature is the “pith and substance” or “matter” of the law”; the other feature is
conclusion is that laws of that kind may be enacted by either Parliament or a
merely incidental).
Legislature
When the court finds that the federal and
- This distinction is commonly expressed by using the phrase “in relation to”. I.e.
the impugned act was “in relation to X” and merely “affected” Y.
(d) Purpose ***
- Essentially, 2 things must be examined: the purpose of the enacting body, and
- Legislative purpose in characterizing the matter of a ostensible law is important
the legal effect of the law (Reference re Firearms Act) (see below)
- As part of the first step in the division of powers analysis, you consider the
purpose of the law
(b) “Singling out”
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--- E.g. In Big M and Edwards Books, the prohibition of work on Sunday fell
- E.g. attempts by the federal Parliament to regulate insurance by incorporating
within federal or provincial competence depending upon whether the purpose of
provisions into the Criminal Code have been struck down as colourable
the prohibition was religious or secular
- The colourability doctrine applies the maxim that a legislative body cannot do
- To determine the purpose, look to:
indirectly what it cannot do directly
(i) The preamble
- So, an examination of the actual effect is useful in determining if the law was
(ii) Intention of the legislative body that drafted the statute
"colourable". That is, whether the law, in substance, addresses a matter
(iii) The mischief that the law is trying to rid
completely different from what the law addresses in form. For example, in R. v.
- But must look to true purpose, not necessarily the stated purpose (Canadian
Morgentaler the province of Nova Scotia passed a law prohibiting abortion clinics
Western Bank)
under the guise that it was protecting health services (hospitals 92.7 and property
and civil rights 92.16), when in substance they were attempting to ban abortions
(e) Effect ***
(criminal – federal power).
- In characterizing a statute (i.e. identifying its matter of pith and substance), a
court must consider the effect of the statute, in the sense that the court will
(h) Criteria of choice
consider how the statute changes the rights and liabilities of those who are subject
- When you have several possible dominant purposes (i.e. matter), how to choose
to it
which is the pith and substance?
-
Can look at (i) legislative scheme/relevant extrinsic material; (ii) judicial
(f) Efficacy
decisions on similar kinds of statutes; (iii) policy
- Court’s are not allowed to judge the efficacy of a statute
-
Policy:
THE CHOICE MUST BE GUIDED BY A CONCEPT OF
FEDERALISM – is this the kind of law that should be enacted at the federal level
(g) Colourability ***
or provincial level?
- Form is not controlling in the determination of essential character
- Judicial restraint must be invoked
- E.g. in Alberta Bank Taxation Reference, the legislation, although ostensibly
designed as a taxation measure, was in reality directed at banking
Reading Down
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- Whenever possible, a statute is to be interpreted as being within the power of the
- The latter is used sparingly by courts; should normally rely on pith and
enacting legislative body
substance analysis
Interjurisdictional immunity
STEP 2: Interpretation of the Constitution
- Another way (alternative to the pith and substance way) of attacking a law is by
 Relevance
characterizing the law as coming within a class of subjects that is outside the
- Once the matter (or pith and substance) of a challenged law has been identified,
jurisdiction of the enacting legislative body, and to argue that the law should be
the second stage in judicial review is to assign the matter to one of the “classes of
INTERPRETED (i.e. read down) so as not to apply to the matter that is outside
subjects” (or heads of legislative power) specified in the Constitution.
the jurisdiction of the enacting body. If this argument succeeds, the law isn’t
- There are certain general principles that cut across all heads of power and will
invalid, but it’s simply INAPPLICABLE to the extra-jurisdictional matter
be discussed here
- Although the doctrine is in principle applicable to all federal and provincial
heads of legislative authority, the case law demonstrates that its natural area of
 Exclusiveness
operation is in relation to those heads of legislative authority that confer on
- The lists in ss 91 and 92 are mutually exclusive (but, still, laws may have a
Parliament power over enumerated federal things, people, works or undertakings
double aspect – ie. two matters)
 Federally regulated undertakings
 Ancillary power ***
- Only if a core competence/vital/essential part of a federal undertaking is
- IF ONLY A CERTAIN PROVISION OF A LARGER STATUTORY
impaired by a provincial law could the provincial law be said to be inapplicable.
SCHEME IS BEING CHALLENGED (AS IN THE GENERAL MOTORS
If the core competence or vital part is merely affected (without any adverse
CASE AND THE VALIDITY OF S 31.1) – YOU NEED TO LOOK AT THE
consequence) by a provincial law, no immunity applied, whether the affect is
ANCILLARY DOCTRINE).
direct or indirect (Canadian Western Bank v Alberta) [This is the newest test]

If the larger legislative scheme is valid, then the impugned provision
may also be found to be valid because of its relationship to the larger
 Distinguish between pith and substance analysis and interjurisdicitonal
immunity
scheme by way of this doctrine
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- TEST: Measure the degree of encroachment of the impugned provision on
Insurance Act and its associated regulations are constitutionally inapplicable
the other government’s sphere of power (the more significant the
and/or inoperative to the banks’ promotion of insurance.
encroachment, the more strict the test is), and then must determine how
ISSUE: The question that arises on this appeal is the extent to which banks, as
necessary the impugned provision is to the otherwise valid legislative scheme:
federally regulated financial institutions, must comply with provincial laws
(i)
For MINOR encroachments, the rational connection test is
regulating the promotion and sale of insurance.
REASONING:
appropriate
(ii) For MAJOR encroachments, a stricter test (“truly necessary”) is
appropriate (General Motors
case)
Federalism

It is beyond question that federalism has been a “fundamental guiding
principle” of our constitutional order since the time of Confederation
 Each head of power was assigned to the level of government best placed to
- E.g. In General Motors, the impugned law was the civil remedy in the federal
exercise the power
competition statute. This law did intrude into provincial power over property and
 Constitutional doctrines permit an appropriate balance to be struck in the
civil rights, but only in a “limited way”. Therefore, it was sufficient to test the
recognition and management of the inevitable overlaps in rules made at the two
validity of the law by the rational connection test. The rational connection to the
levels of legislative power, while recognizing the need to preserve sufficient
legislative scheme was that the civil remedy, by providing a means and an
predictability in the operation of the division of powers
incentive to private enforcement, would improve the efficacy of the competition
Constitutional Doctrines
law

Pith and substance doctrine:
The resolution of a case involving the
constitutionality of legislation in relation to the division of powers must begin
Canadian Western Bank v Alberta
with an analysis of the pith and substance of the impugned legislation. The
FACTS: Provincial statute enacted to enforce laws on federally chartered banks
analysis may concern the legislation as a whole, or only certain provisions. The
who sell credit-related insurance to customers. Upon the coming into force of the
courts must be able from its language and its relevant circumstances, to attribute
Insurance Act, the appellant banks sought a declaration that their promotion of
an enactment to a matter in relation to which the legislature acting has been
insurance is “banking” under s. 91(15) of the Constitution Act, 1867 and that the
empowered to make laws. The corollary to this analysis is that legislation whose
pith and substance falls within the jurisdiction of the legislature that enacted it
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may, at least to a certain extent, affect matters beyond the legislature’s jurisdiction
a single subject depending on the perspective from which the legislation is
without necessarily being unconstitutional. At this stage of the analysis, the
considered, that is, depending on the various “aspects” of the “matter” in
dominant purpose of the legislation is still decisive. Merely incidental effects will
question. A classic example is that of dangerous driving: Parliament may make
not disturb the constitutionality of an otherwise intra vires law.
laws in relation to the “public order” aspect, and provincial legislatures in relation
To determine the pith and substance, two aspects of the law must be
examined:
to its “Property and Civil Rights in the Province” aspect
That being said, it must also be acknowledged that, in certain circumstances,
(1) The PURPOSE of the enacting body: Can look to intrinsic evidence
the powers of one level of government must be protected against intrusions, even
(e.g. preamble/purpose clauses, and extrinsic evidence). Must look to
incidental ones, by the other level. For this purpose, the courts have developed
TRUE PURPOSE though, not necessarily the stated purpose
two doctrines. The first, the doctrine of interjurisdictional immunity, recognizes
(2) The LEGAL EFFECT of the law:
E.g., in Attorney-General for
that our Constitution is based on an allocation of exclusive powers to both levels
Alberta v. Attorney-General for Canada, [1939] A.C. 117 (“Alberta
of government, not concurrent powers, although these powers are bound to
Banks”), the Privy Council held a provincial statute levying a tax on banks
interact in the realities of the life of our Constitution. The second, the doctrine of
to be invalid on the basis that its effects on banks were so great that its true
federal paramountcy, recognizes that where laws of the federal and provincial
purpose could not be (as the province argued) the raising of money by
levels come into conflict, there must be a rule to resolve the impasse
levying a tax (in which case it would have been intra vires), but was rather
 Interjurisdictional Immunity doctrine:
the regulation of banking (which rendered it ultra vires, and thus invalid)
- Despite the efforts to find a proper role for the doctrine, the application of
Here, the pith and substance of the Alberta Insurance Act relates to property
interjurisdictional immunity has given rise to concerns by reason of its potential
and civil rights in the province under s. 92(13) of the Constitution Act, 1867, and
impact on Canadian constitutional arrangements
is a valid provincial law. The mere fact that the banks now participate in the
- Broadly speaking, the doctrine of interjurisdictional immunity was used to
promotion of insurance does not change the essential nature of the insurance
protect that which makes certain works or undertakings, things (e.g., Aboriginal
activity, which remains a matter generally falling within provincial jurisdiction
lands) or persons (e.g., Aboriginal peoples and corporations created by the federal
 The double aspect doctrine: The double aspect doctrine applies within the
Crown) specifically of federal jurisdiction
course of the pith and substance analysis. The double aspect doctrine recognizes
- However, a view of federalism that puts greater emphasis on the legitimate
that both Parliament and the provincial legislatures can adopt valid legislation on
interplay between federal and provincial powers was championed by the late
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Chief Justice Dickson, who described the doctrine of interjurisdictional immunity
- Interjurisdictional immunity should in general be reserved for situations already
as “not . . . particularly compelling. In our view, the sweeping immunity argued
covered by precedent. This means, in practice, that it will be largely reserved for
for by the banks in this appeal is not acceptable in the Canadian federal structure.
those heads of power that deal with federal things, persons or undertakings, or
- While the text and logic of our federal structure justifies the application of
where in the past its application has been considered absolutely indispensable or
interjurisdictional immunity to certain federal “activities”, nevertheless, a broad
necessary to enable Parliament or a provincial legislature to achieve the purpose
application of the doctrine to “activities” creates practical problems of application
for which exclusive legislative jurisdiction was conferred, as discerned from the
much greater than in the case of works or undertakings, things or persons, whose
constitutional division of powers as a whole, or what is absolutely indispensable
limits are more readily defined (The Court goes on to identify a number of
or necessary to enable an undertaking to carry out its mandate in what makes it
problems with invoking the doctrine). Also, a broad use of the doctrine would be
specifically of federal (or provincial) jurisdiction.
inconsistent with the flexible federalism that the constitutional doctrines of pith
- Court restricts the operation of the doctrine when it IS applied: The provincial
and substance, double aspect and federal paramountcy are designed to promote. It
legislation must IMPAIR a VITAL/ESSENTIAL aspect of the federal subject or
is these doctrines that have proved to be most consistent with contemporary views
undertaking (i.e. must result in adverse consequences).
of Canadian federalism, which recognize that overlapping powers are unavoidable
- “Not only should the doctrine of interjurisdictional immunity be applied with
- Further, a broad use of the doctrine of interjurisdictional immunity runs the risk
restraint, but with rare exceptions it has been so applied. Although the doctrine is
of creating an unintentional centralizing tendency in constitutional interpretation.
in principle applicable to all federal and provincial heads of legislative authority,
As stated, this doctrine has in the past most often protected federal heads of power
the case law demonstrates that its natural area of operation is in relation to those
The “asymmetrical”
heads of legislative authority that confer on Parliament power over enumerated
application of interjurisdictional immunity is incompatible with the flexibility and
federal things, people, works or undertakings. In most cases, a pith and substance
co-ordination required by contemporary Canadian federalism
analysis and the application of the doctrine of paramountcy have resolved
- “Although the doctrine of interjurisdictional immunity has a proper part to play
difficulties in a satisfactory manner”
from incidental intrusion by provincial legislatures.
in appropriate circumstances, we intend now to make it clear that the Court does
not favour an intensive reliance on the doctrine, nor should we accept the
 The Doctrine of Federal Paramountcy: The doctrine of federal paramountcy
invitation of the appellants to turn it into a doctrine of first recourse in a division
is also inapplicable because neither operational incompatibility nor the frustration
of powers dispute”
of a federal purpose have been made out. Since 2000, the banks have been
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promoting insurance in Alberta while complying with both the federal Bank Act
- Where there are overlapping federal and provincial laws, and it is possible to
and the provincial Insurance Act. This is not a case where the provincial law
comply with both laws, but the effect of the provincial law would be to frustrate
prohibits what the federal law permits. The federal legislation is permissive not
the purpose of the federal law, another case of inconsistency arises
exhaustive, and compliance by the banks with the provincial law complements,
- See Rothmans, Benson & Hedges Inc (tobacco advertising case)
not frustrates, the federal purpose
HELD: (1) The provincial law was valid under property and civil rights; (2)
Negative implication
The claim to interjurisdictional immunity should be rejected (credit related
(a) Covering the field:
insurance is not a vital or essential element of the banking undertaking); (3)
- In US and OZ, for example, courts have accepted a negative implication test for
Federal paramountcy does not apply on the facts of this case
inconsistency:
a federal law may be interpreted as covering the field and
precluding any provincial laws in that field, even if they are not contradictory of
[2] PARAMOUNTCY
the federal. In Canada, this has been rejected (O’Grady v Sparling)
(b) Express extension of paramountcy:
- The doctrine of federal paramountcy says that: where there are inconsistent or
- Can, for example, Parliament extend the doctrine of paramountcty beyond the
conflicting federal and provincial laws, it is the federal law which prevails to the
case of an actual conflict in operation? Yes.
extent of the inconsistency
-
The doctrine applies ONLY IF the Federal law and provincial law are
independently valid (i.e., must pass the pith and substance test first)
Overlap and duplication
- Duplication is NOT a test of inconsistency (Multiple Access case)
Definition of inconsistency
(a) Express contradiction
- Arises where it is impossible to obey both the federal and provincial law
- In Rothmans, Benson & Hedges Inc – no conflict b/c possible to comply with
both by following the provincial legislation
(b) Frustration of federal purpose
Effect of inconsistency
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- Once it has been determined that a federal law is inconsistent with a provincial

law, the doctrine of federal paramountcy stipulates that the provincial law must
inconsistency b/w validly enacted but overlapping provincial and federal
yield to the federal law.
legislation, the provincial legislation is inoperative to the extent of the
- The most accurate way to describe this is to say that the provincial law is
inconsistency
rendered inoperative to the extent of the inconsistency

The doctrine of federal paramountcy dictates that where there is an
Provincial legislation that displaces or frustrates Parliament’s legislative
purpose is also inconsistent for the purposes of the doctrine
Rothmans, Benson & Hedges Inc v Saskatchewan
 Parliament did not grant retails a positive entitlement to display tobacco
FACTS:
The respondent company sought a declaration that s. 6 of the
products: as the Act was enacted under the criminal power, and since the criminal
Saskatchewan Tobacco Control Act is, by virtue of the paramountcy doctrine,
law power is prohibitory in nature, provisions enacted pursuant to it do not
inoperative in light of s. 30 of the federal Tobacco Act. Section 30 allows
ordinarily create freestanding rights.
retailers to display tobacco and tobacco product-related brand elements and post
granting retailers a freestanding right to display tobacco products would assist
signs indicating the availability and price of tobacco products, while s. 6 bans all
Parliament in providing “a legislative response to a national public health problem
advertising, display and promotion of tobacco or tobacco-related products in any
of substantial and pressing concern
premises in which persons under 18 years of age are permitted. The Court of
 It is plain that dual compliance is possible in this case. A retailer can
Queen’s Bench dismissed the company’s application. The Court of Appeal set
easily comply with both s. 30 of the Tobacco Act and s. 6 of The Tobacco
aside that decision and declared s. 6 inoperative on the basis of a practical
Control Act in one of two ways: by admitting no one under 18 years of age on
inconsistency between the two provisions.
to the premises or by not displaying tobacco or tobacco-related products.
ISSUE: Whether s. 6 of The Tobacco Control Act is sufficiently inconsistent
 Section 6 of the Tobacco Control Act does NOT frustrate the legislative
with s. 30 of the Tobacco Act so as to be rendered inoperative through the
purpose underlying s 30 of the federal Act. Both the general purpose of the
paramountcy doctrine, two questions arise. First, can a person simultaneously
Tobacco Act (to address a national public health problem) and the specific
comply with s. 6 of The Tobacco Control Act and s. 30 of the Tobacco Act?
purpose of s. 30 (to circumscribe the Tobacco Act’s general prohibition on
Second, does s. 6 of The Tobacco Control Act frustrate Parliament’s purpose in
promotion of tobacco products set out in s. 19) remain fulfilled
enacting s. 30 of the Tobacco Act?
HELD: The doctrine of paramountcy does not apply
REASONING:
Second, it is difficult to imagine how
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[3] PROPERTY AND CIVIL RIGHTS: s 92(13), Constitution Act, 1867
 Federal power
- But the Fed government continues to regulate a substantial part of the insurance
Background
industry under statutes covering British and foreign companies, federally
- W/in provincial jurisdiction
incorporated companies, and, on a voluntary basis, provincially incorporated
- By far the most important head of provincial power.
companies. These statutes’ preambles indicate that the powers over trade and
- Most of the major constitutional cases have turned on the competition between
commerce, aliens and insolvency are relied upon as supporting their
one or more of the federal heads of power, on the one hand, and property and civil
constitutionality
rights, on the other
- E.g. A federal law applicable to insolvent insurance companies was upheld
- Encompasses most of the legal relationships between persons in Canada. The
(Wentworth Insurance)
law relating to property, succession, the family, contracts, labour relations and
torts is mainly w/in the provincial jurisdiction under s 92(13). But a lot of public
Business in general
law has also been swept under this rubric
- The insurance cases discussed suggest that the regulation of business was
- Distinguish b/w civil rights and liberties, as they are different
ordinarily a matter w/in property and civil rights in the province. But there are a
number of exceptions, which fall within the federal power (e.g. some industries
Insurance
have been held to fall within the federal jurisdiction under the peace, order and
 Provincial power
good government power, namely aeronautics and the production of atomic
- Earliest decision involved an Ontario statute required that certain conditions be
energy)
included in every policy of fire insurance entered into in Ontario; it was held that
- The point is that the regulation of an industry, or the more general regulation of
the regulation of the terms of the contracts came within property and civil rights,
prices or profits or combinations, has traditionally been regarded by the courts,
and not trade and commerce (Citizens Insurance v Parsons)
not in terms of its ultimate, often nation-wide objectives, but in terms of its
- The regulation of a particular industry comes within property and civil rights in
immediate impact upon freedom of contract and proprietary rights – in these
the province, even when the industry and particular firms extended beyond the
terms, restraints on business fall into the category of property and civil rights in
boundaries of any one province (Insurance Reference; Parsons)
the province
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not sweep a group of e/ees into federal jurisdiction, if they operate a hotel which
Professions and trades
is functionally separate from the railway).
- Regulations of professions and trades typically take the form of restrictions on
-
entry, coupled with rules of conduct, which include fee-setting, and
exception in the context of regulating labour relations
Still, provincial competence is the RULE, and federal competence is the
administration by a governing body; this falls within s 92(13) (Krieger)
Marketing/Regulating production and trade
Labour relations
- Early attempts by Federal Parliament to enact marketing schemes under the
 Provincial power
trade and commerce power were struck down by the Privy Council; started w/
- Generally falls within property and civil rights (Toronto Electric – leading case)
assumption that ANY interference w/ contracts was a matter w/in property and
- Industrial peace (e.g. strikes, lockouts) falls w/in property and civil rights
civil rights.
(Toronto Electric)
- But the Supreme Court has interpreted trade and commerce more liberally in
- Labour standards legislation property and civil rights (Labour Conventions)
recent times. NO DOUBT that provinces can regulate INTRAprovincial trade
- Other decisions, such as Unemployment Insurance Reference and Oil, Chemical
(because that deals largely with contracts etc), although they lack the power to
Workers, insist that the modification of the employment relationship is
regulate INTERprovincial trade.
exclusively w/in property and civil rights, notwithstanding the important federal
- But marketing has interprovincial effects (on consumers): so to what extent
aspects presented by the relief of nation-wide unemployment
should a province be permitted to burden interprovincial trade in the course
of regulating intraprovincial trade?
 Federal power
- However, there’s still a substantial federal presence in the field.
(i) Shannon v Lower Mainland Dairy: Provincial scheme for compulsory
- They regulate labour relations in industries which are part of a federal
marketing of milk upheld and applied to milk sold in province, including
undertaking (whether in the private or public sector) (see Stevedores Reference –
milk made OUTSIDE province. That decision was followed by Carnation
dock loaders = necessary for navigation and shipping).
Co v Quebec, which decided that, if the marketing law merely AFFECTS
- The required connection with the federal undertaking is a functional or
interprovincial trade, that doesn’t mean the law is invalid (in this case, in
operational one (e.g. the fact that the employer is an interprovincial railway will
fact, Carnation shipped the bulk of its product outside the province, and
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the SCC nevertheless held that the marketing law was “in relation to”
Re Agricultural Products, because they both essentially dealt with price
intraproviincial trade)
fixing; but might want to look to the destination of the product – if the
majority of product is to be consumed within province, then statute will
(iii) Manitoba Egg Reference: SCC struck down a provincial scheme to
likely be intra vires. In this case, virtually all the potash was going to be
regulate the marketing of eggs. The scheme applied to all eggs sold in
exported]
Man., including eggs produced elsewhere.
Court said that statute
regulated marketing and not only affected interprovincial trade, but it
When the law is aimed at conservation purposes, a different story
AIMED at regulating such trade, and so it was invalid as an attempt to
emerges:
regulate such trade [Hogg thinks this is an odd case, and difficult to see
why it didn’t follow Shannon]
(vi) Spooner Oils: Where production controls are imposed for a physical
conservation purpose, there is NO doubt that the province has power
(iv)
Re Agricultural Products:
Upheld scheme regulating national
marketing of eggs (which included federal and provincial acts). SCC
Securities regulation
upheld the scheme, and held that the provincial statute could impose
- Provinces have power to regulate the trade of securities, as a matter falling
production quotas on all producers irrespective of the destination of their
within property and civil rights
output (this part is important). Thus, Court held that production controls
are “ordinarily: matters w/in provincial authority.
Property
 General
(v) Central Canada Potash v Sask: SCC struck down Sask’s prorationing
- The creation of property rights, their transfer, and their general characteristics,
scheme for potash produced in province. Scheme imposed quotas on
are w/in property and civil rights in the province
producers of potash in the province. Court acknowledged that production
- Difficulty has arisen in cases where a province has sought to control the
controls were ordinarily matters w/in provincial authority, but said that the
ownership or use of property in order to accomplish a non-proprietary objective
situation may be different where a province establishes a marketing
which it could not accomplish by more direct means:
scheme with price fixing as its central feature [Hard to reconcile this with
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(i) Switzman v Elbing: A provincial law which prohibited the use of a
house to propagate communism or
bolshevism was characterized as either a criminal law or law in relation to
speech, not property
Mainland Dairy); to be valid, however, the legislation cannot be aimed at
regulating interprovincial marketing (Manitoba Egg Reference).
But the
provinces can regulate production schemes, regardless of whether the output is
interprovincial (sine that is generally a provincial matter) (Re Agricultural
(ii) Beard v Dawson: A provincial law which prohibited the use of a
Products), so long as the majority of the product is not being exported (Central
house as a “disorderly house” was characterizes as a property law, and not
Canada Potash)
as a mere supplement to Criminal Code offences in respect of disorderly
(4) Where production controls are imposed for physical conservation purposes,
houses”
then the matter falls within the property and civil rights power (Spooner Oils)
(iii) Johnson v A-G- Alta: Court divided evenly on the question whether a
(5) The creation of property rights, their transfer and general characteristics are
provincial law which denied property rights in slot machines and provided
normally within the property and civil rights power. Where a province seeks to
for the confiscation of slot machines was a property or a criminal law
control ownership or usage of property in order to accomplish a NON-proprietary
objective, then there is a concern that it might be trampling on another head of
Summary of principles
power (e.g. criminal law) (e.g. Switzman)
(1) The regulation of a particular industry or business falls within the property
----
and civil rights power (see Insurance Reference; Parsons)
(2) The regulation of contracts falls under the property and civil rights power
(Parsons)
(2) The regulation of labour relations, as a general rule, falls within the property
Citizen Insurance Company v. Parsons
and civil rights power (Toronto Electric etc), although federal government can
FACTS: Ontario, in 1876, enacted legislation regulating fire insurance policies
regulate labour relations which are a required part of a federal undertaking)
that specified the standard conditions which were "deemed to be part of every
(Stevedores Reference etc)
policy of fire insurance" made within the province. Under the legislation, an
(3) The regulation of INTRAprovincial trade falls within the property and civil
insurance company had the power to omit any of the additional provisions
rights power, even though it may have interprovincial effects (Shannon v Lower
provided it warned the policy purchaser of the changes. The Respondent, Parsons
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purchased insurance in Ontario and then had a fire. When he went to collect the
within the province (including the ability to limit and control the manner in which
Appellant insurance from Citizen Insurance Company refused to pay based on his
the property may be dealt with, including the terms and conditions of the
fail to disclose info required by the conditions in the policies. The Respondent
contracts)
went to Court. At Trial, the Appellant argued that it was not bound by the
HELD: Judgement for the Respondent, the appeal was dismissed (legislation was
Provincial Insurance Act because it was ultra vires of the province's powers.
ISSUE: Is the Provincial Insurance Act valid within s. 92(13) or does it violate s.
intra vires). Feds do not have the authority to regulate the contracts of a specific
trade, and thus its authority does not conflict or compete with 92(13) provincial
91(2)?
authority to regulate civil and property rights. Parsons was allowed to recover.
REASONING:
 The Act was NOT ultravires the power of the enacting government. The act
regulated contracts, and contracts falls under the head of property and civil rights.
 There are two important ratios to note about this case. They are:
limited to the following areas:
International
value.
Chatterjee v Ontario (A-G)
1) There is a limitation on s. 91(2): s. 91(2), dealing with trade and commerce, is
1)
Appeal allowed. Appealed again to Privy counsel and therefore, no precedential
FACTS:
C found with lots of money, which was potentially acquired from
crimes. Based on fed statute, the money was seized and preserved. In response,
Trade
and
Interprovincial
Trade;
and
2) Regulation of Trade affecting whole Dominion
the appellant challenged the CRA’s constitutionality: that challenge eventually led
to this appeal.
ISSUE: Whether the Ontario Remedies for Organized Crime and Other Unlawful
- These are referred to as the two branches of the trade and commerce power
Activities Act, 2001, S.O. 2001, c. 28 (otherwise known as Civil Remedies Act,
(discussed below)
2001 or CRA), which authorizes the forfeiture of proceeds of unlawful activity, is
- Section 91(2) should not be read to include the power to regulate by legislation
ultra vires Ontario because it encroaches on the federal criminal law power.
the contracts of a particular business or trade, such as the business of fire
REASONING:
insurance in a single province.
 Crime imposes significant costs at every level of government
 The appellant’s argument is the forfeiture of property tainted by crime in
2) Provinces Can Regulate Contracts:
Provincial legislatures have the
jurisdiction to regulate contracts of a particular business or trade as long as it is
relation to federal offences, he says, “encroaches directly on the federal
government’s exclusive jurisdiction over criminal law and is ultra vires”
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STEP 1 (Pith and substance analysis)
Police Internet Child Exploitation Unit, leaving $1.7 million in special CRA
 Must determine the MATTER “in relation to” which the impugned law is
accounts. Forfeited property included approximately $500,000 in property
enacted: “what is the essence of what the law does and how does it do it?”
involved in marijuana grow operations, a Hamilton crack house.
 “[T]wo aspects of the law must be examined: the purpose of the enacting
practical (and intended) effect is to take the profit out of crime and to deter
body, and the legal effect of the law” .
its present and would-be perpetrators.

The
While a court is not bound by a purpose clause, a statement of legislative
 In essence, therefore, the CRA creates a property-based authority to seize
intent is often a useful tool to look for purpose [Analyse words, and come up with
money and other things shown on a balance of probabilities to be tainted by crime
the GENERAL/OVERARCHING purpose(s)]
and thereafter to allocate the proceeds to compensating victims of and remedying

the societal effects of criminality. The practical (and intended) effect is also to
Re: the effect, courts will look how the legislation as a whole affects the
rights and liabilities of those subject to its terms (Morgantaler).
When
take the profit out of crime and to deter its present and would-be perpetrators
appropriate, as well, a reviewing court will look beyond the legal effect —
STEP 2 (Assignment to heads of legislative power):
beyond the statute’s “four corners” — to examine “the actual or predicted
 Once the “pith and substance” is ascertained, it is necessary to classify that
practical effect of the legislation in operation” (Morgentaler).
essential character of the law by reference to the provincial and federal “classes of
 Application:
subjects” listed in ss. 91 and 92 (or, in an appropriate case, ss. 93, 94A and 95) to
(1) Purpose: The purpose of the Act was to make crime unprofitable, to
determine if the law comes within the jurisdiction of the enacting legislature.
capture resources tainted by crime and to help compensate private individuals
 Clearly, the CRA relates to property but, of course, much of the Criminal
and public institutions for the costs of past crime. Forfeiture is the transfer
Code is dedicated to offences involving property. To characterize a provincial
of property from the owner to the Crown. Forfeiture does not result in the
law as being in pith and substance related to property is therefore just a starting
conviction of anybody for any offence. On its face, therefore, the; CRA
point:
targets property rights
(1) The provincial aspect: CRA fits neatly into the provincial competence in
(2) Effects: The record shows that as of August 2007 approximately $3.6
relation to Property and Civil Rights in the Province. The Attorneys General rely
million in property has been ordered forfeited under the CRA of which
on Martineau v. M.N.R. for the proposition that “civil mechanisms include the
approximately $1 million had been paid out to direct victims, $900,000 had
seizure as forfeit of goods and conveyances”.
been paid in grants to various bodies on victims’ issues, including the Peel
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Our jurisprudence offers many examples of the interplay between provincial
legislative jurisdiction over property and civil rights and federal legislative
[4] TRADE AND COMMERCE: s 91(2), Constitution Act 1867
jurisdiction over criminal law and procedure [Court looks at precedent, and
draws analogies as to which head the law fits under, e.g. here they look at
Relationship to property and civil rights
how previous court decisions dealt with the federal criminal law power and
- S 91(2) of Constitution Act, 1867 confers upon federal Parliament power to
the provincial property and civil rights power together] (e.g, in Bédard v.
make laws in relation to the regulation of trade and commerce
Dawson, for example, the Court upheld the validity of a provincial law that
- Judicial interpretation has narrowed the scope of that clause
authorized a judge to close a “disorderly hous[e]” for up to one year. The Court
- s 91(2) and s 92(13) (i.e. property and civil rights power of the provinces)
held that the law was directed to the enjoyment of property rights not criminal
appear to overlap, but Courts, by a process of mutual modification, have
law)
narrowed the two classes of subjects so as to eliminate the overlapping
 Where there is overlap between two heads of power, it is for the court to
-Since the Parsons case, it has been accepted that:
identify the DOMINANT FEATURE of the impugned statute. Although
(1) Intraprovincial trade and commerce is a matter w/in the provincial
there may be incidental intrusion into another head over which the relevant
power under property and civil rights (a
provincial matter)
government has no control, incidental intrusions are allowed
(2)
The federal aspect:
[Court argues that criminal law is not the dominant
(2) The federal trade and commerce power is confined to
purpose, drawing on case law – analogies and distinguishing]. E.g. “The appellant
(a) interprovincial or international trade and commerce; and
and the interveners supporting him invoke Industrial Acceptance and Johnson as
(b) “general” trade and commerce (affecting the domino as a
authorities for the proposition that “[f]orfeiture, in the context of property tainted
whole)
by crime, is punishment” (A.F., at para. 44) but, in my view, neither case read in
light of our subsequent jurisprudence supports such a broad proposition.”
Interprovincial or international trade and commerce: limb 1
HELD: Appeal dismissed
 Privy Council
COMMENT: Note the significant overlap between this head of power and
-
criminal law power
particular trades) but more general aspects of the economy (combinations, prices,
Early cases suggested that unless a federal law attempted to control (not
labour), which were governed by economic forces that ignored provincial
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boundaries, then they could not be held valid under the trade and commerce
or international in size (like the market for grain or oil), there is a strong
power.
argument that effect regulation of that market can only be national.
 Supreme Court of Canada:
(iii) Re Agricultural Products Marketing Act: A federal marketing statute
was upheld, and was the federal element of interlocking federal and
(i) Ontario Farm Products Marketing Ref: Fed power could extend to
provincial statutes that regulated egg industry, and several aspects of
some transactions that were completed in provinces
intraprovincial production/marketing of eggs. The decision on its face
appears to expand the Fed power, but it might not be a useful precedent
(ii) R v Klassen: Issue was whether the Act could validly apply to a
for a # of reasons (including that the Court was impressed by the fact that
purely local work – a feed mill which processed locally produced wheat
the federal Act was the centerpiece of a cooperative scheme).
and sold it as feed to local farmers. The Act imposed on produces a quota
Nevertheless, this case, and a subsequent one called Federation des
system which was designed to ensure equal access to the interprovincial
producteurs v Pellland (which also dealt with a federal provincial scheme)
and export market. Here, impugned Act was valid in relation to this
stand for the proposition that a federal statute can lawfully impose quotas
intraprovincial transaction, as it was “incidental to the principal purpose of
on each province without regard to the destination of the product (ie, even
the Act, which was to regulate the interprovincial and export trade in
if the product is consumed mainly in province), at least where there is a
grain”.
cooperative federal-provincial scheme in place.
Principle:
If impugned Act has incidental application to
intraprovincal transactions, that’s ok (so long that the intraprovincial
effects were incidental to the purpose of the Act). Caloil case confirms
(iv)
Dominion Stores v The Queen: SCC struck down Part 1 of the
Klassen on this point.
federal Canada Agricultural Product Standards Act. The Act provided
appropriate grade names for agricultural products. Part I of Act provided
--- Hogg suggests caution when interpreting these cases, however, which
that if the grade names were used in local trade, then the appropriate
specifically dealt w/ grain/oil flow across provincial lines.
Logically
federal standards had to be complied with. Dominion Stores was charged
speaking, it makes sense that whenever a market for a product is national
w/ selling apples (which were locally produced) under the federally
established grade name “Canada Extra Fancy”, which did not comply with
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The company was
Council upheld a federal statute which established a national mark called “Canada
acquitted on the ground that Part I was unconstitutional in its attempt to
Standard”. The use of the mark was voluntary, but if the mark was used, federal
regulate local trade [HOGG says this is wrongly decided – such a modest
standards as to the quality of the product so marked had to be complied with. The
intrusion into local trade has a rational, functional connection with the
use of the mark was not confined to international or interprovincial trade. The
regulation of interprovincial and international trade; and in rejecting this
case seemed to decide that the general trade and commerce power would
intrusion into local trade, Court seems to have revered to the bad old days
authorize federal standards of production or manufacture for products traded
of the Privy Council’s “watertight compartments”]
locally, provided that the federal standards were tired to the voluntary use of a
the standards stipulated for that grade of apples.
distinctive mark
(v) Labatt Breweries v A-G: federal trade and commerce power was
rejected as a support for federal legislation.
Court struck down
But see Dominion Stores v The Queen (1979), which seemed to have similar facts
compositional standards for beer enacted under the Food and Drugs Act.
but a different decision resulted [My view: since this is a more recent case, accept
The standards imposed on the beer industry were without regard for the
it as being a better authority than Canada Standard]
product’s movements across provincial boundaries AND the case
reaffirmed the rule that the trade and commerce power will not authorize
(ii) Labatt Breweries: SCC struck down compositional standards for light beer
the regulation of a single trade or industry
which would become applicable only through the use of the voluntary phrase
“light beer”. Majority basically held that this case, unlike Canada Standard
General trade and commerce: limb 2
Trade Mark, involved the use of a common name (light beer), which is virtually
- This limb, for example, deals with legislation enacting federal policies of
mandatory and would affect producers who did not want to be affected
economic regulation.
Further, legislation in this area is not confined to
international or interprovincial trade and commerce
--- The following cases deal with regulating business practices:
- The following cases deal with regulating compositional standards:
(iii) MacDonald v Vapor Canada: In this case, a civil remedy for any business
(i) Canada Standard Trade Mark: Until 1989, this was the only unequivocal
practice which was contrary to honest industrial or commercial usage was said to
example of a valid exercise of the general trade and commerce power. The Privy
not fall under the fed power – the creation or extension of civil causes of action of
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an essentially contractual or tortious character was a matter w/in property and
(1) The federal trade and commerce power has 2 limbs (Parsons):
civil rights. The only federal aspect was that the law applied throughout Canada,
(a) interprovincial or international trade and commerce; and
but this is insufficient.
(b) “general” trade and commerce (affecting the domino as a
whole)
--- Dicta in Vapor (re: regulatory scheme) have proved to be important, having
become the basis for upholding the federal Competition Act:
(2) Re the first branch, federal legislation may have incidental application to
intraprovincal transactions and still be upheld under the trade and commerce
(iv) General Motors v City National Leasing: The Competition Act was a valid
power, particularly when the legislation is regulating a material that has a national
exercise of the general trade and commerce power. A 5 part test was adopted, and
market (R v Klassen)
employed (using part of the Vapor test). In this case, the allegations that gave rise
to litigation concerned price discrimination in the financing of the purchase of
(3) Re the first branch, it is possible (but not necessarily the case) that, in the
vehicles by companies that lease fleets of automobiles and trucks.
These
name of trade and commerce, a federal statute can lawfully impose quotas on each
purchases were transactions that took place within a single province. Thus, since
province and individual producers in that province even if the product is
the law was upheld, the conclusion was that Parliament has the constitutional
consumed mainly in province, at least in the case where there is a federal-
power to regulate intraprovincial aspects of competition
provincial cooperative scheme in place (Re Agricultural Products Marketing Act;
Federation des producteurs v Pellland)
--- There are also some relevant trade mark cases:
(4) Re the second branch, it is likely that, in the name of trade and commerce, a
(v) Canada Standard Trade Mark: OBITER from this case suggests that the fed
federal statute can lawfully stipulate that the voluntary use of a distinctive mark
power can be used to enact trade mark acts.
gives rise to the requirement that the relevant material conform to set
Ritivik Holdings.
This was supported by Kirkbi v
compositional standards (Canada Standard), although the involuntary/lack of
choice of using a distinctive mark will not lawfully give rise to the requirement
that compositional standards must be complied with (Labatt Breweries)
Summary of principles
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(5) Civil remedies can be used as part of a scheme to regulate national trade
ISSUE: Is the Provincial Insurance Act valid within s. 92(13) or does it violate s.
practices, and be upheld under the trade and commerce power, if they are
91(2)?
sufficiently connected to a valid act under which there is a regulatory scheme
REASONING:
(GM v National Leasing)
 There are two important ratios to note about this case. They are:
1) Limitation on s. 91(2): s. 91(2), dealing with trade and commerce, is limited to
(6) Parliament has the power, under the general trade and commerce power, to
the following areas:
regulate intraprovincial aspects of competition (GM v National Leasing)
1)
(7) Parliament, via the general trade and commerce power, cannot regulate a
single trade, even on a national basis (Labatt Breweries)
International
Trade
and
Interprovincial
Trade;
and
2) Regulation of Trade affecting whole Dominion (“general branch”)
- These are referred to as the two branches of the trade and commerce power
- Section 91(2) should not be read to include 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.
Citizen Insurance Company v. Parsons
FACTS: Ontario, in 1876, enacted legislation regulating fire insurance policies
2) Provinces Can Regulate Contracts:
that specified the standard conditions which were "deemed to be part of every
jurisdiction to regulate contracts of a particular business or trade as long as it is
policy of fire insurance" made within the province. Under the legislation, an
within the province (including the ability to limit and control the manner in which
insurance company had the power to omit any of the additional provisions
the property may be dealt with, including the terms and conditions of the
provided it warned the policy purchaser of the changes. The Respondent, Parsons
contracts)
Provincial legislatures have the
purchased insurance in Ontario and then had a fire. When he went to collect the
Appellant insurance from Citizen Insurance Company refused to pay based on his
fail to disclose info required by the conditions in the policies. The Respondent
went to Court. At Trial, the Appellant argued that it was not bound by the
Provincial Insurance Act because it was ultra vires of the province's powers.
HELD: Judgement for the Respondent, the appeal was dismissed (legislation was
intra vires). Feds do not have the authority to regulate the contracts of a specific
trade, and thus its authority does not conflict or compete with 92(13) provincial
authority to regulate civil and property rights. Parsons was allowed to recover.
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Appeal allowed. Appealed again to Privy counsel and therefore, no precedential
 In examining cases which have considered s. 91(2), it is evident that courts have
value.
been sensitive to the need to reconcile the general trade and commerce power of
the federal government with the provincial power over property and civil rights
 Court points to 2 cases and states that neither correctly assesses the balance to
General Motors v City National Leasing:
FACTS: During the 1970s General Motors (GM) sold vehicles to both City
be struck btw s.91(2) and 92(13):
1. Wharton – which the court stated was clearly overly expansive in the
National Leasing (CNL) and to CNL's competitors. It was discovered that GM
power granted to the federal government in relation to trade and
was giving CNL's competitor a better interest rate than CNL, which violated the
federal Combines Investigation Act. In its defence GM argued that the provision
commerce under 91(2)
2. Board of Commerce - which the court stated fails to breath life into
in the Act that created the civil cause of action was outside the legislative
the trade and commerce power under 91(2) and fails to recognize that
competence of the federal government.
ISSUE: In the present appeal, the appellant focuses its attack on a particular section
of the Act. Is s 31,1 valid?
REASONING:
The General Trade and Commerce Power
 The leading case on s 91(2) is Parsons
 Parsons established 3 propositions re s 91(2): (i) it does not correspond to the
literal meaning of the words "regulation of trade and commerce"; (ii) it includes not
only arrangements with regard to international and interprovincial trade but "it may
be that . . . (it) would include general regulation of trade affecting the whole
dominion"; (iii) it does not extend to regulating the contracts of a particular business
or trade [Parsons, then, is authority for the proposition of the 2 limbs of s 91(2)]
provincial powers are a subtraction for the federal powers
Steps To Resolve This Kind of Case
 First, where there is a challenge to the provision of an Act, the court must
determine whether the impugned provision can be viewed as intruding on provincial
powers, and if so to what extent (if it does not intrude, then the only possible issue is
the validity of the act; if the provision does intrude, then must determine the degree
to which the provision could be said to intrude on provincial powers, so that this
intrusion can be weighed in light of the possible justification for the section. Such a
justification will result from the impugned provision's relationship to valid
legislation. Thus the next step in the process is to ascertain the existence of valid
legislation)
Second, the court must establish whether the act (or a severable part of it) is valid;
in cases under the second branch of s. 91(2) this will normally involve finding the
presence of a regulatory scheme and then ascertaining whether that scheme meets
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the requirements articulated in Vapor Canada, supra, and in Canadian National
 It does not encroach to a fatal extent, though – the provision is a remedial one;
Transportation, supra. That is, once the presence of a regulatory scheme has been
federal encroachment in this matter isn’t unprecedented
shown to exist, it will be necessary, using the factors outlined in Vapor Canada,
supra, and Canadian National Transportation, supra, to determine its constitutional
(2) The Presence and Validity of a Regulation Scheme
validity. If the scheme is not valid, then the Act is not valid, and that is the end of the
 The second step in determining the validity of s. 31.1 is to establish whether the
inquiry
Act contains a regulatory scheme
 Third, if the scheme of regulation is declared valid (and therefore the Act, or
 The presence of a well orchestrated economic regulation scheme is present on
severable part of it is valid), the court must then determine whether the impugned
examination of the Act (throughout the Act.
provision is sufficiently integrated with the scheme that it can be upheld by virtue of
 Act creates, e.g., Director of Investigation and Research, Restrictive Trade
that relationship. This requires considering the seriousness of the encroachment on
Practices Commission etc to oversee its application
provincial powers, in order to decide on the proper standard for such a relationship.
 From this overview of the Combines Investigation Act I have no difficulty in
 Fourth, if the provision passes this integration test, it is intra vires Parliament as
concluding that the Act as a whole embodies a complex scheme of economic
an exercise of the general trade and commerce power. If the provision is not
regulation. The purpose of the Act is to eliminate activities that reduce competition
sufficiently integrated into the scheme of regulation, it cannot be sustained under the
in the market-place. The entire Act is geared to achieving this objective. The Act
second branch of s. 91(2).
identifies and defines anti-competitive conduct. It establishes an investigatory
 The following is a more detailed analysis, and application, of the test:
mechanism for revealing prohibited activities and provides an extensive range of
criminal and administrative redress against companies engaging in behaviour that
(1) Does Section 31.1 Encroach on Provincial Powers?
tends to reduce competition
 The first step, therefore, in assessing the validity of s. 31.1 of the Combines
 But is the Regulatory scheme VALID under the general trade and commerce
Investigation Act is to determine whether the impugned provision can be seen as
power IN LIGHT OF the criteria established in Canadian National
encroaching on provincial powers, and if so, to what extent
Transportation? FOUR other criteria have to be examined:
 The section does encroach, b/c it creates a civil action which is generally a
provincial matter under s 92(13)
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(a) The regulatory scheme operates under the oversight of an agency: Yes. The
 “I am of the opinion that the necessary link between s. 31.1 and the Act exists.
regulatory mechanism is carefully controlled by the Director of Investigation and
Section 31.1 is an integral, well-conceived component of the economic regulation
Research and to a lesser degree by the Restrictive Trade Practices Commission
strategy found in the Combines Investigation Act. Even if a much stricter test of fit
were applied -- for instance, one of "necessarily incidental" -- s. 31.1 would still pass
---The next three criteria are indications that the scheme of regulation is national in
the test. Section 31.1 of the Combines Investigation Act is fundamentally integrated
scope and that local regulation would be inadequate ---
into the purpose and underlying philosophy of the Combines Investigation Act.
There is a close congruence between the goal of enhancing healthy competition in
(b) The Act is concerned with trade in general: Yes. Concerned w/ trade in general,
the economy and s. 31.1 which creates a private remedy dependent for its
rather than with the regulation of a particular industry or commodity (i.e. eliminating
effectiveness on individual initiative”
commercial practices which are contrary to healthy competition across the country)
 The very exercise of the remedy in s. 31.1 by a company against a competitor
(c) The provinces would be constitutionally capable of enacting combines
whose behaviour has transgressed the code of conduct established by the Act may be
legislation: No.
said to reflect and promote the spirit of competition informing the Combines
(d) The failure to include one or more provinces or localities would jeopardize the
Investigation Act. In my view, the intimate tie between the purpose of the Act and a
successful operation of the Combines Investigation Act: Yes
privately initiated and privately conducted enforcement mechanism is a strong
indication that s. 31.1 is enmeshed in the fabric in the Act.
(3) The Validity of s. 31.1 of the Combines Investigation Act
 This conclusion rebuts the appellant's argument that s. 31.1 tilts the

constitutional balance between the federal domain and the domain of the
Mere inclusion in a valid legislative scheme does not ipso facto confer
constitutional validity upon a particular provision
provinces in favour of Parliament. Satisfying all of the concerns which I have
 The provision must be sufficiently related to that scheme for it to be
discussed ensures that the constitutional balance will not be upset
constitutionally justified. The degree of relationship that is required is a function
Other Points
of the extent of the provision's intrusion into provincial powers
 It is also worth mentioning that in itself s. 31.1 does not share the characteristics
 Given the level of intrusion, the appropriate test in this case is whether the
of provisions that were not upheld as exercises of the general trade and commerce
section is “functionally related” to the general objective of the legislation
power: (a) regulating a single trade, even though on a national basis (Labatt
Breweries, supra); (b) regulating a series of individual trades by various regulations
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or trade codes applicable to each individual sector (Re Anti-Inflation Act, [1976] 2
- The proper interpretation of the P.O.G.G power is that it is to accommodate the
S.C.R. 373); (c) controlling production in a local area (Canadian National
matters which do not come within any of the enumerated provincial or federal
Transportation, supra); (d) proscribing the ethical conduct of persons engaged in
heads of power
trade and unconnected to a general regulatory scheme governing trade relations
- The P.O.G.G. power has given rise to 3 branches of legislative power:
(Vapor Canada, supra); (e) regulating contracts of a particular business or trade
(Parsons, supra).
(1) The “gap” branch
HELD: Section 31.1 is intra vires parliament by virtue of its relationship to the
- E.g. the incorporation of companies; treaties
scheme of economic regulation found in the Combines Investigation Act. They
- This one isn’t that important
both are valid federal enactments in accordance with Parliament’s power over
(2) The “national concern” branch
trade and commerce affecting the entire nation.
COMMENT:
The
Court
outlined
the
analysis
for
determining
the
constitutionality of a provision under the "general" branch of the Trade and
(a) Relevant cases
Commerce power
(i)
Local Prohibition case: The idea that some matter of legislation, in
their local and provincial origin, could acquire “national dimensions” or “national
concern” and thereby come w/in the federal Parliament’s p.o.g.g power
[5]
PEACE, ORDER AND GOOD GOVERNMENT:
28s 91, Constitution Act 1867
(ii)
Canada Temperance case:
a new test was formulated (and the
requirement that the national concern
- The power is residuary, b/c it is expressly confined to matters not coming w/in
the classes of subjects by this Act assigned exclusively to the Legislatures of the
provinces
amount to an emergency was repudiated): “if the legislation 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
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whole, then it will fall within this head of power, although it may in
Crown Zellerbach)
another aspect touch on other
matters over which province has authority”.
an identity which makes it distinct from provincial matters” (Anti-Inflation Ref;
[THIS IS THE
ESTABLISHED DEFINITION OF THE
“NATIONAL CONCERN BRANCH]
(a) An indicia of distinctness is the provincial inability test (Crown
Zellerbach):
It has been said that the most important element of national
concern is a need for one national law which cannot realistically be satisfied by
cooperative provincial action because the failure of one province to cooperate
(iii) Johannesson v West St Paul (SCC case): Aeronautics satisfied the
national concern branch (e.g. rapid growth
of passenger and freight traffic by air, the use of aircraft for the carriage
of mails especially to remote parts of
the country, etc are concerns of the nation as a whole”)
would carry with it adverse consequences for the residents of other provinces.
A subject matter of legislation which has this characteristic has the necessary
national concern to justify invocation of the p.o.g.g. power [This is an indicia,
not determining element of it]
(b) Further, does the Act treat the regulation of (X: i.e. what it’s regulating) as
distinct from the regulation of a larger issue, an issue for which provincial
(iv) Munro v NCC (SCC case): The national capital region, which was
control might be more appropriate?
established by federal legislation, was valid
under this power, although it is located in Ottawa
(3) The emergency branch
- Emergency test was first applied in Toronto Electric Commissioners v Snider:
(v)
R v Crown Zellerbach (SCC case): Marine pollution satisfied the
national concern test
“The p.o.g.g. power only available in cases arising out of extraordinary peril”
- Fed legislation enacted during First World War that dealt with economic
responses to the war was held constitutional under this power (Fort Frances)
(b) Definition of national concern
- The War Measures Act was held constitutional in one other context other than
- When does subject matter become “the concern of the Dominion as a whole” to
war, namely during the “October Crisis” when a violent Quebec separatist group
satisfy the national concern test?
kidnapped a British diplomat; the fed government responded by issuing a
- “Distinctness” is the key: In order to qualify as a matter of national concern, a
proclamation declaring that an “apprehended insurrection exists”, bringing into
topic must be “distinct”: it must have a degree of unity that makes it indivisible,
force War Measures Act
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- The most recent application of the emergency doctrine is to be found in the Anti-
waters of the cove approximately 60 to 80 feet seaward of where the woodwaste had
Inflation Reference case, in which the federal Anti-Inflation Act was upheld as an
been dredged
emergency measure. That case indicates that all you need to show is that there is
ISSUE: Is section 4(1) of the Ocean Dumping Control Act, S.C. 1974-75-76, c. 55,
a rational basis for finding that an emergency exists – don’t need definitive
ultra vires of the Parliament of Canada, and, in particular, is it ultra vires of the
conclusions
Parliament of Canada in its application to the dumping of waste in the waters of
- Note that federal emergency power only supports temporary measures (Re Anti
Beaver Cove, an area within the province of British Columbia, and which cannot
Inflation Act)
cause pollution in extra-provincial waters?
REASONING:
Relationship between emergency branch and national concern branch
 Note: the respondent concedes, as it must, that Parliament has jurisdiction to
- The pogg power gives to the fed Parliament the PERMANENT jurisdiction over
regulate dumping in waters lying outside the territorial limits of any province
distinct subject matters which do not fall within any of the enumerated heads of s
STEP 1: Pith and substance of the Act
92, and which by nature are of national concern, e.g. aeronautics, the national
 The Act, viewed as a whole, may be properly characterized as directed to the
capital region (Anti Inflation Reference)
control or regulation of marine pollution, in so far as that may be relevant to the
- Second, the pogg power gives the fed Parliament TEMPORARY jurisdiction
question of legislative jurisdiction.
over all subject matters (including general ones like inflation) needed to deal with
 Its purpose is to require a permit so that the regulatory authority may determine
an emergency, so long as the legislation operates as a partial and temporary
before the proposed dumping has occurred whether it may be permitted upon certain
alteration of the distribution of power b/w Parliament and provincial legislatures
terms and conditions, having regard to the factors or concerns specified in ss. 9 and
(Anti Inflation Reference)
10 of the Act and Schedule III.
R v Crown Zellerbach Canada (A case dealing with the national concern
 The Act is concerned with the dumping of substances which may be shown or
branch)
presumed to have an adverse effect on the marine environment.
FACTS: The federal Ocean Dumping Control Act prohibited “at sea dumping”.
 The nature of the marine environment and its protection from adverse effect from
The respondent dredged wood waste from the ocean floor immediately adjacent to
dumping is a complex matter which must be left to expert judgment.
the shoreline at the site of its log dump in Beaver Cove and deposited it in the deeper
STEP 2: Which head of power does it fall under?
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 Court first rejected that the Act could be upheld under the fisheries power
4. In determining whether a matter has attained the required degree of singleness,
(because these arguments were made by a party)
distinctiveness and indivisibility that clearly distinguishes it from matters of
 Next, Court asked whether it could be upheld under the federal peace, order
provincial concern, it is relevant to consider what would be the effect on
and good government power (using the national concern doctrine)
extra-provincial interests of a provincial failure to deal effectively with the control or
Court cited the Canada Temperance Federation test, and then said that in
regulation of the intra-provincial aspects of the matter [I.e. the “provincial
applying it, you must look to some of the important cases like Re Anti Inflation
inability” test]: “In this sense, the "provincial inability" test is one of the indicia for
Act which followed up the Temperance case [He then summarized some of the
determining whether a matter has that character of singleness or indivisibility
important/relevant findings from these cases, e.g. that the Johannesson case
required to bring it within the national concern doctrine. It is because of the
supported legislation re: aeronautics under this branch --- about 5 cases were
interrelatedness of the intra-provincial and extra-provincial aspects of the matter that
cited, with reference to relevant points]
it requires a single or uniform legislative treatment. The "provincial inability" test
Court drew several conclusions from the cases about the doctrine:
must not, however, go so far as to provide a rationale for the general notion, hitherto
1.
The national concern doctrine is separate and distinct from the national
rejected in the cases, that there must be a plenary jurisdiction in one order of
emergency doctrine of the peace, order and good government power, which is
government or the other to deal with any legislative problem. In the context of the
chiefly distinguishable by the fact that it provides a constitutional basis for what is
national concern doctrine of the peace, order and good government power, its utility
necessarily legislation of a temporary nature;
lies, in my opinion, in assisting in the determination whether a matter has the
2. The national concern doctrine applies to both new matters which did not exist at
requisite singleness or indivisibility from a functional as well as a conceptual point
Confederation and to matters which, although originally matters of a local or private
of view”
nature in a province, have since, in the absence of national emergency, become
 Court says that marine pollution, because of its predominantly extra-
matters of national concern;
provincial as well as international character and implications, is clearly a
3. For a matter to qualify as a matter of national concern in either sense it must
matter of concern to Canada as a whole.
have a singleness, distinctiveness and indivisibility that clearly distinguishes it
 The question is whether the control of pollution by the dumping of
from matters of provincial concern and a scale of impact on provincial
substances in marine waters, including provincial marine waters, is a single,
jurisdiction that is reconcilable with the fundamental distribution of legislative
indivisible matter.
power under the Constitution;
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 The Ocean Dumping Control Act reflects a distinction between the pollution of
growing unease with the Act, the federal government put two questions to the
salt water and the pollution of fresh water. The question, as I conceive it, is whether
Supreme Court on the validity of the Act.
that distinction is sufficient to make the control of marine pollution by the dumping
ISSUE: Whether the social and economic circumstances upon which Parliament
of substances a single, indivisible matter falling within the national concern doctrine
can be said to have proceeded in passing the Act were such as to provide support
of the peace, order and good government power.
for the Act in the power of Parliament to legislate for the peace, order and good
 Marine pollution by the dumping of substances is clearly treated by the
government of Canada
Convention on the Prevention of Marine Pollution by Dumping of Wastes and other
REASONING:
Matter as a distinct and separate form of water pollution having its own
CJ’s Judgment
characteristics and scientific considerations. Further, marine pollution, because of
 Court needs to find that there is a rational basis for the emergency legislation
the differences in the composition and action of marine waters and fresh waters, has
(not definitive proof that there was an emergency) [REQUIREMENT]
its own characteristics and scientific considerations that distinguish it from fresh
 Fed legislation can be upheld under the emergency test of the popp power
water pollution. Moreover, the distinction between salt water and fresh water as
even if it was enacted after the emergency had ended (because the effects of the
limiting the application of the Ocean Dumping Control Act meets the consideration
emergency may still be operative) [RULE]
emphasized by a majority of this Court in the Anti-Inflation Act reference--that in
 Fed legislation can be upheld under the emergency test of the popp power
order for a matter to qualify as one of national concern falling within the federal
even if it intrudes on provincial territory [RULE]
peace, order and good government power it must have ascertainable and reasonable
 An “emergency” isn’t limited to wars [RULE]
limits, in so far as its impact on provincial jurisdiction is concerned.
 It isn’t for the Court to assess whether the Act will in fact have the effect to
HELD: s 4(1) is constitutionally valid as enacted in relation to a matter falling
mitigate against the emergency
w/iin the national concern branch of the peace order and good government power
 The Anti-Inflation Act is valid legislation for the peace, order and good
government of Canada and does not, in the circumstances under which it was
Anti Inflation Reference (Deals with the emergency branch)
enacted [sic] and having regard to its temporary character, invade provincial
FACTS: The Anti-Inflation Act was passed in 1975, on recommendation of the
legislative jurisdiction [So, the legislation must be temporary in nature, otherwise
Bank of Canada, to control the growing inflation of the past several years. Due to
it would be seen as invading provincial jurisdiction[
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 The word emergency need not be used in the Act for the Act to be upheld
- The provincial role in criminal justice derives from s 92(14), which confers on
under the emergency test of the pogg power
provincial legislatures the power to make laws in relation to “the admin of justice,
Richie J’s Judgment:
including the constitution, maintenance and organization of provincial courts, and
 An “emergency” exists where there can be said to be an urgent and critical
including procedure in civil matters in those courts”
situation adversely affecting all Canadians and being of such proportions as to
transcend the authority vested in the Legislatures of the Provinces and thus
Definition of criminal law
presenting an emergency which can only be effectively dealt with by Parliament
- Three ingredients to the criminal law power:
in the exercise of the powers conferred upon it by s. 91 of the British North
(1) A prohibition;
America Act "to make laws for the peace, order and good government of Canada
(2) Coupled with a penalty
[DEFINITION OF EMERGENCY]
(3) With a criminal public purpose:
 The authority of Parliament is limited to dealing with critical conditions and
a. E.g. public peace, order, security, health, morality etc (see
the necessity to which they give rise must be confined to legislation of a
Margarine Reference)
TEMPORARY CHARACTER [REQUIREMENT]
 In order to determine whether the legislation in question was enacted to
- Note: there is no harm requirement for a law to be valid (Malmo-Levine); the
combat such an emergency, it is necessary to examine the legislation itself (i.e.
criminal law power can serve economic ends (e.g. PATA case); a criminal purpose
look at the preamble etc) [Here, the preamble recognized the fact that inflation at
may be pursued by indirect means (RJR-MacDonald v Canada, e.g. health risks
current levels was contrary to the interest of all Canadians] [RULE]
of tobacco did not require the outright banning of cigarettes, and could have been
HELD: The Act was not ultra vires the fed parliament
pursued by limiting advertising)
Food and drugs
[6]
CRIMINAL LAW: s 91 (27) Constitution Act, 1867
(a) Food and drug standards
- Criminal law, under s 91(27), is a federal responsibility, although for the most
part the Code is enforced by provinces
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- It is well established that food and drug legislation making illegal the
harmful effects encompassed the power to take the lesser step of prohibiting
manufacture or sale of dangerous products, adulterated products or misbranded
advertising [So, the criminal law power can be used indirectly to achieve a
products is within the criminal law power (R v Wetmore)
criminal law purpose]
- Labatt Breweries v A-G Can: If the purpose of the federal food and drug
standards is related to health and/or the minimization of deception, then the law
Health
can be upheld under the criminal power
- As seen above, there is a criminal law aspect of health, authorizing federal
legislation under s 91(27) to punish conduct that is dangerous to health
(b) Illicit drugs
- In Schneider v The Queen, the SCC upheld the BC Heroin Treatment Act,
Environment protection
which provide for the compulsory apprehension, assessment and treatment of
- The protection of the environment (which extends beyond the protection of
drug addicts; the treatment could include compulsory detention for up to 6
human health) is a public purpose that would support a federal law under the
months. The argument that this was really a criminal law was based on the
criminal law power (R v Hydro-Quebec)
deprivations of liberty that were authorized by the Act [So, where there an Act
allows for deprivations of liberty, cite this case]
Competition law
- The P.A.T.A. case established that the criminal law power was capable of
(c) Tobacco
- RJR MacDonald v Canada:
expansion into the world of commerce, after it upheld federal legislation which
federal Tobacco Act did two things: require
dealt with restraint of trade issues
placement of health warning labels on cigarette packs and prohibited the
- BUT now, the criminal aspect of the Act, due to changes in competition law,
advertising of cigarettes and other tobacco products.
have diminished, and the relevant power for the most part is trade and commerce
For the warning label
requirement, the law was valid because the valid criminal purpose of protecting
- See, e.g., General Motors v City National Leasing
health.
The ban on advertising? Parliament clearly can prohibit the sale, possession and
manufacture of dangerous products (Irwin Toy), but it had not done that here.
Yet, majority said the power to prohibit the use of tobacco on account of its
Sunday observance law
(a) Federal power
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- In Big M Drug Mart, it was confirmed that the criminal law power can be used
- Where the pith and substance of a federal law is not the creation of a civil
to legislate in relation to the purpose of preserving the sanctity of the Christian
remedy, but is some other matter within federal power, there is no reason to doubt
Sabbath (and observance of days of religious significance) – comes within
the validity of a civil remedy provided for enforcement of the law – the remedy is
safeguarding morality (a purpose identified in Margarine Reference)
valid as incidental to the main purpose of the law (see Papp v Papp)
- Since Papp v Papp, the SCC has used the “functional connection’ test to uphold
(b) Provincial power
a civil remedy in federal corporation law, against persons who engage in insider
- Laws which provide “pause days” or restrict business hours, and which have
trading, a civil remedy in federal competition law etc
secular purposes, are valid under the property and civil rights provincial power
(see, e.g. Lieberman)
(b) Criminal law power to create civil remedies
-
In R v Zelensky, the SCC upheld a provision of the Criminal Code that
Gun control
authorized a criminal court, upon convicting an accused of an indictable offence,
- In 1995, the fed Parliament amended Code provisions, by enacting the Firearms
to order the accused to pay the victim compensation for any loss or damage
Act which expanded existing rules by requiring ALL guns to be registered and
ALL gun owners to be licensed.
Criminal law and regulatory authority
- The SCC upheld the validity of this legislation under the criminal law power in
- Crim power generally won’t sustain a regulatory regime/scheme which relies
Re Firearms Act.
upon more sophisticated tools than a simple prohibition and penalty
- Eg. Nova Scotia Board of Censors v McNeil: SCC held that the censorship of
Criminal law and civil remedy
films was not criminal. Court upheld censorship law as being the regulation of an
(a) Federal power generally to create civil remedies
industry within the province (property and civil rights)
- The federal Parliament has no independent power to create civil remedies akin
- But see R v Furtney: SCC held that a Code provision respecting lotteries,
to its power over criminal law. This means that if the pith and substance of a
which prohibited lotteries, but made an exception for organizations licensed by
federal law is the creation of a new civil cause of action, the law will be invalid as
the Lieutenant Governor in Council. The law was valid despite the fact that it
coming within the provincial head of power property and civil rights (see
delegated regulatory power to the provincial LG in Council
MacDonald v Vapor Canada)
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- And see R v Hydro-Quebec: HQ was prosecuted for violating an interim order
for the “Peace, Order and good Government” of Canada. Alberta, on the other
that restricted the emission of a substance to one gram per day. Majority upheld
hand, says the law falls under its power over property and civil rights, s. 92(13).
the Act as a criminal law. “Because the admin procedure for assessing the
ISSUE: The issue before us is whether the licensing and registration provisions
toxicity of the substances culminated in a prohibition enforced by a penal
of the Firearms Act constitute a valid federal enactment pursuant to Parliament’s
sanction, the scheme was sufficiently prohibitory” (see also Re Firearms Act,
jurisdiction over criminal law or its peace, order and good government power.
which affirms this reasoning)
REASONING:
Introduction
Provincial power to enact penal laws
 In order to answer this question, we must engage in the division of powers
- See s 92(15)
analysis
- Provincial power to create offences under that section is not as broad as the
 There are two stages to this analysis. The first step is to determine the “pith
federal power to create offences under s 91(27)
and substance” or essential character of the law. The second step is to classify
- Where the penalties are imposed in respect of matters over which the provinces
that essential character by reference to the heads of power under the Constitution
ordinarily have legislative jurisdiction (e.g. property, streets, parks, businesses
Act, 1867 in order to determine whether the law comes within the jurisdiction of
activity), the provincial law is likely to be valid. Where the provincial offence
the enacting government. If it does, then the law is valid.
cannot safely be anchored in property/civil rights or some other head of provincial
power, then it will be invalid (see, e.g., Westendorp)
STEP 1: Determine what the gun control law is really about (PITH AND
SUBSTANCE ANALYSIS):
Re Firearms Act
- To determine the pith and substance, two aspects of the law must be examined:
FACTS:
the purpose of the enacting body, and the legal effect of the law
In 1995, Parliament amended the Criminal Code, R.S.C., 1985, c. C-
46, by enacting the Firearms Act, S.C. 1995, c. 39, commonly referred to as the
(a) Purpose:
gun control law, to require the holders of all firearms to obtain licences and
- A law’s purpose is often stated, but it may also be ascertained by reference to
register their guns. The federal government asserts that the gun control law falls
extrinsic material: Morgentaler
under its criminal law power, s. 91(27), and under its general power to legislate
- Purpose may also be ascertained by considering the “mischief” of the legislation
-- the problem which Parliament sought to remedy: Morgentaler
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- HERE, extrinsic evidence indicates that the purpose is to promote public safety.
 STEP 2: Determine which HEAD/HEADS OF POWER it most naturally
Also, looking to the mischief approach, the Act is aimed at a number of evils –
falls within (in order to determine whether the law comes within the
e.g. illegal trade in guns, another is the link between guns and violent crime,
jurisdiction of the enacting government)
accidental deaths etc
- Having assessed the pith and substance or matter of the law, the second step is
(b) Legal effect:
to determine whether that matter comes within the jurisdiction of the enacting
- Determining the legal effects of a law involves considering how the law will
legislature.
operate and how it will affect Canadians
- We must examine the heads of power under ss. 91 and 92 of the Constitution
- The inquiry is directed to how the law sets out to achieve its purpose in order to
Act, 1867 and determine what the matter is “in relation to”
better understand its total meaning
- In this case, the question is whether the law falls under federal jurisdiction over
- In other words, a law may say that it intends to do one thing and actually do
criminal law or its peace, order and good government power; or under provincial
something else. Where the effects of the law diverge substantially from the stated
jurisdiction over property and civil rights [Say what heads of power are in
aim, it is sometimes said to be “colourable”.
issue]
- HERE, the effects of the scheme also support the conclusion that the conclusion
- The determination of which head of power a particular law falls under is not an
that the 1995 gun control law is in pith and substance a public safety measure.
exact science. In a federal system, each level of government can expect to have
- The criteria for acquiring a licence are concerned with safety rather than the
its jurisdiction affected by the other to a certain degree.
regulation of property. Criminal record checks and background investigations are
- NOTE:
designed to keep guns out of the hands of those incapable of using them safely.
challenging the legislation, is required to show that the Act does not fall within
Safety courses ensure that gun owners are qualified. There is no attempt to protect
the jurisdiction of Parliament: see Nova Scotia Board of Censors v. McNeil
or regulate industries or businesses associated with guns
 Criminal law power:
(c) Conclusion:
- As a general rule, legislation may be classified as criminal law if it possesses
- We therefore conclude that, viewed from its purpose and effects, the Firearms
three prerequisites: a valid criminal law purpose backed by a prohibition and a
Act is in “pith and substance” directed to public safety
penalty: RJR-MacDonald, supra; Hydro-Québec
the presumption of constitutionality means that Alberta, as the party
- Before determining whether the three criminal law criteria are met by this
legislation, some general observations on the criminal law power may be apposite
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[Court goes on to note some general features of it, like how it constitutes a broad
advance Alberta’s case. The fact that the Act is complex does not
area of federal jurisdiction]
necessarily detract from its criminal nature.
- Then Court looks at whether 3 criteria are satisfied:
provisions demonstrate that the Act does not give the chief firearms
(i) The first step is to consider whether the law has a valid criminal law
Further, the relevant
officer or the Registrar undue discretion
purpose (noting Margarine Reference). Public safety clearly comes within
Furthermore, the law’s prohibitions and penalties are not regulatory in
criminal law purpose, and more specifically, gun control is a VALID
nature. They are not confined to ensuring compliance with the scheme, as
criminal law purpose [In determining whether the purpose of a law
was the case in Boggs v. The Queen, but stand on their own, independently
constitutes a valid criminal law purpose, courts look at whether laws of
serving the purpose of public safety. Nor are the prohibitions and
this type have traditionally been held to be criminal law: see
penalties directed to the object of revenue generation
Morgentaler];
(ii) Property and civil rights or criminal law? Alberta’s second major
(ii) + (iii):
Further, that purpose must be connected to a prohibition
objection to classifying the 1995 gun control scheme as criminal law is
backed by a penalty. The 1995 gun control law satisfies these
that it is indistinguishable from existing provincial property regulation
requirements. Section 112 of the Firearms Act prohibits the possession of
schemes such as automobile and land title registries. This argument
a firearm without a registration certificate. Section 91 of the Criminal
overlooks the different purposes behind the federal restrictions on firearms
Code (as amended by s. 139 of the Firearms Act) prohibits the possession
and the provincial regulation of other forms of property. Guns are
of a firearm without a licence and a registration certificate. These
restricted because they are dangerous. While cars are also dangerous,
prohibitions are backed by penalties: see s. 115 of the Firearms Act and s.
provincial legislatures regulate the possession and use of automobiles not
91 of the Code.
as dangerous products but rather as items of property and as an exercise of
- Thus, it appears that the law possesses all the 3 criteria for a valid criminal law.
But there are some objections raised by the provinces that must be considered:
civil rights, pursuant to the provinces’ s. 92(13) jurisdiction
The argument that the federal gun control scheme is no different from
(i) Regulation or criminal prohibition? The first objection is that the
the provincial regulation of motor vehicles ignores the fact that there are
Firearms Act is essentially regulatory rather than criminal legislation
significant distinctions between the roles of guns and cars in Canadian
because of the complexity of the law and the discretion it grants to the
society. Both firearms and automobiles can be used for socially approved
chief firearms officer. Despite its initial appeal, this argument fails to
purposes. Likewise, both may cause death and injury. Yet their primary
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uses are fundamentally different. Cars are used mainly as means of
field, the federal government has deprived the provinces of that choice.
transportation.
Danger to the public is ordinarily unintended and
Assuming (without deciding) that the provincial legislatures would have
incidental to that use. Guns, by contrast, pose a pressing safety risk in
the jurisdiction to enact a law in relation to the property aspects of
many if not all of their functions
ordinary firearms, this does not prevent Parliament from addressing the
Parliament did not enact the Firearms Act to regulate guns as items of
safety aspects of ordinary firearms. The double aspect doctrine permits
property
both levels of government to legislate in one jurisdictional field for two
(iii) Undue intrusion into provincial powers? Alberta and the provincial
different purposes
interveners submit that this law inappropriately trenches on provincial
Fourth, as discussed above, this law does not precipitate the federal
powers and that upholding it as criminal law will upset the balance of
government’s entry into a new field. Gun control has been the subject of
federalism. Put simply, the issue is whether the law is mainly in relation
federal law since Confederation. This law does not allow the federal
to criminal law. If it is, incidental effects in the provincial sphere are
government to significantly expand its jurisdictional powers to the
constitutionally irrelevant.
detriment of the provinces
In our view, Alberta and the provinces have not established that the
HELD:
The licensing and registration provisions in the Firearms Act do not
effects of the law on provincial matters are more than incidental. First, the
constitute an infringement of the jurisdiction of the Legislature of Alberta with
mere fact that guns are property does not suffice to show that a gun control
respect to the regulation of property and civil rights pursuant to s. 92(13) of the
law is in pith and substance a provincial matter. Exercises of the criminal
Constitution Act, 1867. The Act is a valid exercise of Parliament’s jurisdiction
law power often affect property and civil rights to some degree: Attorney-
over criminal law pursuant to s. 91(27).
General for British Columbia v. Attorney-General for Canada, [1937]
A.C. 368 (P.C.). Second, the Act does not significantly hinder the ability
of the provinces to regulate the property and civil rights aspects of guns
Third, the most important jurisdictional effect of this law is its
elimination of the ability of the provinces to not have any regulations on
the ownership of ordinary firearms. The provinces argue that it is in their
power to choose whether or not to have such a law. By taking over the
[7]
DISTRIBUTION OF POWERS ANSWER STRUCTURE
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The main issue here is _____________. In order to address this issue, we must
- Thus, it appears that the Act’s overall goal is to _________
engage in the division of powers analysis. There are two stages to this analysis,
the first being to determine the “pith and substance” of the law. The second step
Effects
is to classify that essential character by reference to the heads of power under the
- We must also look at its effects (legal and practical), in order to determine
Constitution Act, 1867 in order to determine whether the law comes within the
how the law will operate and how it will affect Canadians, e.g. how it will affect
jurisdiction of the enacting government.
individuals’ rights and liabilities (Morgantaler)
- Where the effects of the law diverge substantially from the stated aim, it is
Note, here, that the presumption of constitutionality means that [the party
sometimes said to be “colourable” (Ibid)
challenging the Act] is required to demonstrate that the Act does not fall within
- [Application: try and say that the effects coincide with the purpose, and the
the jurisdiction of [the enacting body] (NS Board of Censors v. McNeil)
enacting body’s attempt doesn’t appear to be a colourable one – e.g. in
Chatterjee v Ontario (A-G), the purpose and effect of the impugned Act was to
STEP 1: Pith and Substance Analysis
take profit out of crime]
- To determine the pith and substance, two aspects of the law must be examined:
Conclusion
the purpose of the enacting body, and the legal effect of the law
- The [Act] is in “pith and substance” directed to _______.
Purpose
STEP 2:
Assignment to Heads of Power
- In order to determine the validity of legislation X, first must identify its main
purpose
-
The second step is to determine whether that matter comes within the
- To do this, we may exam: the preamble, the mischief that the law is trying to
jurisdiction of the enacting legislature. The heads of power in ss. 91 and 92 of
rid and, optimally, reference to extrinsic material (Morgentaler).
the Constitution Act, 1867 must be analysed, and it must be determined what the
- Of course, however, we must look to true purpose, not necessarily the stated
matter is “in relation to”
purpose (Canadian Western Bank)
- The determination of which head of power a particular law falls under is “not an
- [Application]
exact science”. In a federal system, each level of government can expect to have
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its jurisdiction affected by the other to a certain degree (i.e. incidental effects are
permitted) (Papp v Papp). However, in light of the “exhaustive principle”, we
BONUS MARKS:
must be able to characterize the law as falling in one of the heads in s 91 or 92.
- In this case, the question is whether the law falls under ______ or the ______
- Ancillary purpose (and the rational connection/necessary test) (if relevant)
heads of legislative power.
- The double aspect doctrine
- Criteria of choice
[This step often involves little more than a review of the relevant decisions and a
- Exhaustive principle (law must be assignable to one of the heads of power)
recitation of the principles emerging from them. e.g., if its the criminal law
- Singling out doctrine
power, define it; what are its elements? What do the cases say have to be
established in order for a statute to be upheld under that power? Cite the most
important cases here. One way to do it is first decide, in your head, which head
you will conclude the legislation falls under. Then, start off with the heads that it
APPEARS might support it, then start to distinguish and show why those heads
don’t work by highlighting relevant cases. Finish up by showing how it falls
under the head that you decided the legislation falls under]
[REMEMBER: (i) Where there is overlap between two heads of power, it is for
the court to identify the DOMINANT FEATURE of the impugned statute.
Although there may be incidental intrusion into another head over which the
relevant government has no control, incidental intrusions are allowed (see, e.g.
Chatterjee); (ii) Incidental intrusion’s are ok]
Conclusion
- The law is (intra/ultra) vires (Parliament/the provincial legislature)
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[1]
LANGUAGE
- Two issues: distribution of powers re: language and constitutional protection of
language
Distribution of powers
- Not a head of power, and is not an independent matter of legislation
- A law prescribing that a particular language or languages must/may be used in
certain situations will be classified not as a law in relation to language, but as a
law in relation to the institutions or activities that the provision covers
Language of statutes
 Constitutional requirements
- Only explicit guarantee of language rights in the Constitution Act, 1867 is
contained in s 133
- S 133 only applies to legislative bodies and courts of the federal government
and of Quebec, and requires that statutes of the federal Parliament and Quebec
Legislature to be printed in both languages; it also permits either English or
French to be used in debates in the Houses of the federal Parliament and Quebec
Legislature; it requires English and French to be used in the records and journals
to those houses [Note: doesn’t apply to Legislatures and courts of any province
other than Quebec];
Charter of Rights and Freedoms
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- But see s 23 of the Manitoba Act, 1870 (use of English and French in
- General rule is that where a statute makes reference to another document, so as
Legislature and courts of Manitoba on similar terms to s 133)
to incorporate it, then, if there is a constitutional requirement that the
- The Charter of Rights, part I of the Constitution Act, 1982, includes as ss 16-23,
incorporating statute be in both languages, the requirement will apply to the
a variety of language provisions
incorporated document as well.
- Ss 17-19 apply to New Brunswick, so that NB is now in a similar position to
- But there are exceptions
Quebec and Manitoba
- Thus, the federal Parliament, the Quebec Legislature, the Manitoba Legislature
and the New Brunswick Legislature are each subject to a constitutional
 Delegated legislation
requirement that their statutes must be “printed and published” in both English
- S 133 requirements, as a general rule, apply to delegated legislation as well as to
and French
statutes.
- There are exceptions to this too.
 Quebec’s Charter of the French Language
- In A-G of Quebec v Blakie, it was decided that unofficial English translations did
Language of courts
not meet the s 133 requirement. Enactment of the law in English and French was
 Constitutional requirements
required
- French or English may be used by any person in any pleading or process in or
issuing from any Court of Canada, and in or from all or any Courts of Quebec: s
 Manitoba’s Official Language Act
133
- That Act provided that “the English language only” shall be used in the records
- See also s 23 of Manitoba Act re: Manitoba and s 19(2) of Charter re: New
and journals of the Legislatures, and in pleading and process in Manitoba courts.
Brunswick – same guarantee
In effect, an attempt to repeal most of s 23 of Manitoba Act. In Re Manitoba
Language Rights case, held that statute was invalid.
 Language of process
- Can be in either English or French
 Incorporation by reference
Language of government
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 S 16 of Charter:
would be disabled from compelling such schools to instruct in a different
- S 133 (Constitution Act 1867) and s 23 (Manitoba Act) do not go beyond
language
legislative bodies and courts. But s 16 and s 20 of Charter do
- The section makes English and French the official languages of Canada and NB
 S 23 of Charter
- Also confers English or French equality of statues as to their use in all
- Section 23 confers upon citizens of Canada who are members of the English
institutions of Parliament and of the government of Canada
speaking minority in Quebec or the French speaking minority in the other
provinces “the right to have their children receive primary and secondary school
 S 20 of Charter:
instruction in the minority language in that province”. This right is possessed by
- s 16 doesn’t deal with communications b/w government and public, but this
parents who fit into 1 of 3 categories:
section does
(1) The mother tongue of the parent:
- Imposes an obligation on government to provide bilingual services to the public
(2) The language of primary school instruction in Canada of the parent
(3) The language of instruction in Canada of one child of the parent
Language of commerce
- There is a qualification to s 93 though. The right is not an absolute one (can be
- None of the language rights in the Constitution of Canada protects the use of the
invoked “only where numbers warrant”)
English or French language in commercial/private settings.
But statutory
language requirements may offend the guarantee of freedom of expression in s
[2]
ABORIGINAL AND TREATY RIGHTS
2(b) of the Charter of Rights
Federal legislative power
Language of education
 s 91(24):
 S 93, Constitution Act 1867
- s 91(24) of Constitution Act, 1867 confers upon the federal Parliament the
- Confers on provincial legislatures the power to makes laws in relation to
power to make laws in relation to “Indians, and lands reserved for the Indians”
education, and the ancillary power over language of instruction in the schools.
- Contains 2 heads: “Indians” and “lands reserved for Indians”
But if a particular language of instruction was a right or privilege of separate
schools in a particular province at the time of confederation, then the province
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(a) Indians: Includes status Indians (protected by the Indian Act), and non-status
- Section 88 makes clear that provincial laws of general application apply to
Indians not protected by that act – although both are “Indians” for the purpose of
“Indians”
this section.
- The section makes no reference to lands reserved for the Indians, but it does
(b) Lands reserved for Indians: Includes land set aside as Indian reserves, and
extend to Indians on reserve
includes the huge area of land set aside by the Royal Proclamation of 1763 as
- Section 88 operates as a federal adoption, or incorporation by reference, of
“reserved” for the Indians,
provincial laws, making the provincial laws applicable as part of federal law
- s 88 applies to provincial laws which affect Indianness by impairing the status or
 Charter of Rights
capacity of Indians (Dick v The Queen)
- The Charter contains an equality guarantee. The Indian Act likely does not
- Note paramountcy and treaty exceptions
violate the Charter, by reason of its use of the word “Indian”
Nature of aboriginal rights
Provincial legislative power
 Recognition of aboriginal rights
- The general rule is that provincial laws apply to Indians and lands reserved for
-
the Indians, so long as the law is in relation to a matter coming within a provincial
common law and are enforceable by the courts. Guerin v The Queen is the
head of power
leading case on this matter.
- BUT there are 5 exceptions to the general rule:
- Sparrow follows Guerin, and recognized the aboriginal right of a member of the
Aboriginal rights that have not been extinguished are recognized by the
(1) “Singling out”
Musqueam Indian Band to fish for salmon in the Fraser River. Sparrow also
(2) Indianness
recognized that in all dealings with aboriginal peoples, the Government has the
(3) Paramountcy
responsibility to act in a fiduciary capacity, and also decides that aboriginal rights,
(4) Natural Resource Agreements
including the fiduciary duty, are now constitutionally guaranteed through s 35 of
(5) Section 35
the Constitution Act 1982 (this was the 1st s 35 case)
Section 88 of the Indian Act
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 Definition of aboriginal rights
- The aboriginal right of self-government must exist by virtue of the fact that
- Aboriginal RIGHTS are rights held by aboriginal peoples by virtue of the fact
aboriginal people were living in self-governing communities before the arrival of
that aboriginal peoples were once independent, self-governing entities in
Europeans.
possession of most of the lands now making up Canada
- According to Pamajewon case, the aboriginal right of self-government extends
- The test and definition developed in R v Van der Peet:
only to activities that took place before European contact, and then only to those
(i) In order to be an aboriginal right, an activity must be an element of a
activities that were an integral part of the aboriginal society (i.e. must meet the
practice, custom or tradition integral (i.e. sufficiently central) to the
Van der Peet test)
distinctive culture of the aboriginal group asserting the right [In order for
- That test is overly strict, Hogg says
the practice to be “integral”, the practice must be of central significance to
the aboriginal society]
 Aboriginal title
(ii) The practice must have developed before “contact”, i..e before the
- Aboriginal TITLE is the right to exclusive occupation of land, which permits
arrival of Europeans in North America
aboriginal owners to use the land for a variety of purposes
(iii) The practice could evolve over the years as the result of contact, but a
-
practice that has evolved into modern forms must trace its origins back to
European settlement and the assumption of sovereignty by the British Crown.
the pre-contact period
The use and occupation of land by aboriginal people before the assumption of
The SCC in Calder and Guerin recognize that aboriginal title survived
- The Van der Peet definition of aboriginal rights is based on the existence of an
soverightny created an aboriginal title to land.
aboriginal practice before “contact”, meaning before the arrival of Europeans.
- So, common law recognizes that aboriginal title, if not surrendered or lawfully
This time frame doesn’t work for Metis rights, because the Metis people didn’t
extinguished, survived as a burden on the Crown’s title (which the Crown
exist prior to contact. In R v Powley, Court held that, for Metis claimants of
mysteriously acquired to all land in Canada)
aboriginal rights, the focus on European contact had to be moved forward to the
- Aboriginal title is also protected by s 35 of the Constitution Act, 1982
time of effective European control
- The leading case on aboriginal title is Delgamuukw v BC (sets out many rules
re: aboriginal title) (see the summary in the book)
 Aboriginal self-government
- Aboriginal title is sui generis; there are a number of differences between
aboriginal and non-aboriginal title (including the source of aboriginal title, the
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uses to which aboriginal title may be put, the fact that aboriginal title is
- Must be interpreted liberally, and doubtful expressions resolved in favour of
inalienable, the fact that aboriginal title can only be held communally, and that
Indians
aboriginal title is constitutionally protected)
- See R v Marshall as an example
 Extinguishment of aboriginal rights
 Extinguishment of treaty rights
- Aboriginal rights (including aboriginal title) can be extinguished in 2 ways: (1)
- Same way is extinguishing aboriginal rights: (1) voluntary surrender to the
by surrender and (2) by constitutional amendment (note that it is now clear that it
Crown; (2) constitutional amendment
would be a breach of Crown’s fiduciary duty to the aboriginal people to proceed
with a constitutional amendment affecting aboriginal rights without at least the
The need for constitutional protection
active participation of the affected aboriginal people)
- Aboriginal and treaty rights suffered from 4 serious infirmities prior to receiving
- Extinguishment, whether by voluntary surrender or constitutional amendment,
constitutional protection:
will not be inferred from unclear language. Only a “clear and plain” intention to
(1) Uncertainty of the precise legal status of the rights
extinguish is accepted by courts (Sparrow)
(2) Doctrine of parliamentary sovereignty which meant that aboriginal
- Because of s 35, legislation cannot extinguish aboriginal rights, but it can
rights were vulnerable to
regulate them, so long as the test of justification is passed
change or abolition by the action of the competent legislative body
(3) Equality, under the Charter, suggested that special status might be
Treaty rights
unconstitutional
- Protected by s 35, Constitution Act 1982
(4) Aboriginal and treaty rights could be modified or extinguished by
 Definition
constitutional amendment, whereby
- An Indian treaty is sui generis, and has a number of unique characteristics
- Two leading cases on treaty definitions are Simon v The Queen and R v Sioui
aboriginal peoples’ representatives were not entitled to participate in
the decisive phases of the
amending process (unlike now with s 35)
 Interpretation of treaty rights
- The Constitution Act of 1982 has taken steps to eliminate these 4 infirmities
- See s 35, 25 and 35.1
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- S 25 is part of Charter, and it is an interpretive provision, included to make clear
Section 35
that the Charter is not to be construed as derogating from any aboriginal treaty or
- The Constitution Act, 1982 has taken steps to eliminate some of the infirmities
other rights etc
related to aboriginal and treaty rights. The section essentially gives constitutional
- In the absence of s 25, it would perhaps have been arguable that rights attaching
recognition to aboriginal and treaty rights, and therefore protects them from
to groups defined by race were invalidated by s 15 (equality clause) of the Charter
legislative attack
- Consider the various elements of the section independently
[3]
INTERPRETATION OF CHARTER
 “Existing”
- Sparrow held that the word existing meant unextinguished. A right that was
Expansion of judicial review
validly extinguished before 1982 was not protected by s 35
 New grounds for review
- While an aboriginal right could be extinguished by federal statute before 1982, a
- The major effect of the Charter has been the expansion of judicial review. The
federal statute would have that effect only if the intention to extinguish was “clear
Charter adds a new set of constitutional provisions that will invalidate
and plain”.
inconsistent laws
- Judicial review is also more policy driven given the vagueness of the terms of
 “Recognized and affirmed”
the Charter
- S 35 provides that existing aboriginal and treaty rights are recognized and
affirmed
 Vagueness of concepts
- This means that s 35 provides a constitutional guarantee of such rights
- Because of the vagueness of the Charter, the role of law, lawyers and judges in
(Sparrow), and s 35 has the effect of nullifying legislation that purports to abridge
the public life of the country has greatly increased.
the guaranteed rights
- The SCC has willingly embraced new powers conferred on it by this vague
- But such rights are NOT absolute
- The period of judicial activist since 1982 has been described as the Charter
revolution
Section 25
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- But judicial review on Charter grounds rarely defeats a desired legislative
competent legislative body. For example, a prohibition of the use of English in
objective. After a law is struck down by the Court, the mechanisms of ss 1 and 33
commercial signs that was struck down as a breach of freedom of expression was
typically leave room for the law to be replaced with another version that still
revived by the Quebec Legislature, invoking s 33
carries out the legislative objective, and most of the time a replacement law is in
- A study published in 1997 showed that from the inception of the Charter, there
fact enacted
had been 66 cases in which the SCC had struck down a law on Charter grounds.
Of the 66 cases, all but 13 elicited some response from the competent legislative
 The role of s 1
body, which illustrates that the decisions of the Courts usually leave room for a
- Because of s 1, judicial review of legislation under the Charter of Rights is a 2
legislative response
stage process. The first stage of judicial review is to determine whether the
- It is helpful to think of the Court’s Charter decisions, not as imposing a
challenged law derogates from a Charter right (if it does not, then the review is
veto on desired legislative policies, but rather as starting a “dialogue” with
over, and the law must be upheld). If the law does derogate from a Charter right,
the legislative branch as to how to best reconcile the individualistic values of
then the second stage is to determine whether the law is justified under s 1 as a
the Charter with the accomplishment of social and economic policies for the
reasonable limit prescribed by law that can be demonstrably justified in a free and
benefit of the community as a while
democratic society
 Second look cases
 Role of s 33
- Mills case shows how concept of dialogue used to show deference to legislative
- The Charter includes, as s 33, an override power, which enables the Parliament
decision.
or a Legislature to enact a law that will override the guarantees in s 2, and ss 7 –
- Mills shows that the idea of dialogue indicates that when a legislature/Parliament
15
has revised and re-enacted a law that the courts have found unconstitutional, the
Court is likely to uphold the second attempt [Underlying this is the idea that, as
Dialogue with legislative branch
the legislatures and Parliament represent the will of the people, they are in a better
 The idea of dialogue
position to sort out such problems]
- The presence in the Charter of the power to override in s 33 means that most
- But there are examples of cases where courts have reviewed Parliament/ a
decisions striking down statutes on Charter grounds can be reversed by the
legislature’s second attempt at legislation, and concluded the law was still invalid.
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- Another way in which the concept of dialogue has affected the reasoning and
- If the purpose of a law is to abridge a Charter right, then the law will be
results of constitutional cases is the SCC’s willingness to suspend a declaration of
unconstitutional. If the effect of the law is to abridge a Charter right, then the law
invalidity after a finding that a law is unconstitutional. The dialogue concept
will be unconstitutional (unless it is saved by s 1) – distinguish between purpose
rational in this case is simply that in many cases where the Court has found a law
and
to be unconstitutional, the Court would prefer the legislature to design the
effect
appropriate remedy.
- The principle of democracy encourages remedies that allow the democratic
 Purpose or effect
process of consultation and dialogue to occur.
- A law will offend the Charter if either its purpose or its effects is to abridge a
- Judicial respect for the autonomy of the other branches of government would
Charter right
also argue for restrain in crafting orders to compel the executive branch to rectify
- Legislation with an invalid purpose can’t be saved by s 1 (Big M Drug Mart)
Charter breaches (i.e. Separation of powers)
- BUT it’s the “effect” that is normally at issue
Political questions doctrine
 Trivial effects
- This is a US doctrine (re: justiciability) that Canada has not accepted
- Where the effect of a law on a Charter right is trivial or insubstantial, there is no
breach of the Charter (R v Jones)
Characterization of laws
- Two stages:
(1) Determine whether the challenged law abridges a Charter right:
a. First, characterize the challenged law, examining its purpose or
Interpretation of Charter
effect
 Progressive interpretation
b.
- A constitution is likely to remain in force for a long time and is difficult to
Second, interpreted the language of the Charter of Rights to
determine whether it has been abridged by the challenged law
(2) S 1 analysis if applicable
- The focus in this part is on (1)(a)
amend, which calls for a flexible interpretation, so that the constitution can be
adapted over time to changing conditions
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- A flexible interpretation that allows the constitution to be adapted over time to
changing conditions is what progressive interpretation refers to
Who is protected by the Charter?
- Whether one can benefit depends on the wording of the right
 Generous interpretation
- Corporations may benefit from many rights; e.g, section 2, in guaranteeing the
- Avoiding a narrow and technical construction of the constitution, by giving it a
fundamental freedoms, speaks of “everyone” and has been interpreted to extend to
large and liberal interpretation
corporations. By contrast, Section 15 applies to "every individual", and has been
restricted to only “natural persons”. But even some of the rights that have been
 Purposive interpretation
framed in terms of “everyone” have been held to be inapplicable to corporations
because of their nature. And so, the corporations can enjoy freedom of expression,
 Process as purpose
but not freedom of religion.
- Is a process based theory suitable for guiding J.R.? I.e. focussing on the
fairness of procedures taken rather than substantive outcomes. Hogg thinks not.
Burden of rights
- Who is bound by the Charter? See the wording of s 32
Sources of interpretation
- The section explicitly says that the Charter applies to the Parliament and
-
government of Canada AND to the legislature and government of each province
There are a number, including some international instruments, legislative
history and, of course, precedent
 Parliament or legislature
Priority between federal and Charter grounds
- The reference to Parliament and provincial legislatures in s. 32 of the Charter
- When a law is challenged on both federal and Charter grounds, it is the federal
means that when laws are passed by those bodies, they must comply with the
ground that is the more fundamental of the two, and that ought to take priority
Charter; any statute enacted that is inconsistent with the Charter will be outside
over the Charter ground
the power of the enacting body and will be invalid
 What about statutory authority
[4]
APPLICATION OF CHARTER: s 32, Constitution Act, 1982
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-
Any body exercising statutory authority, for example ministers, officials,
 Governmental action
municipalities, admin tribunals, is bound by the Charter.
- If an entity is part of the government, then the Charter will ordinarily apply to
- Since neither Parliament nor a Legislature can itself pass a law in breach of the
all of its actions.
Charter, neither body can authorize action which would be in breach of the
- Charter applies to government action taken under prerogative powers (common
Charter.
law powers possessed only by government) and common law powers possessed
Thus, limitations on statutory authority which are imposed by the
Charter will flow down the chain of statutory authority and apply to regulations,
by everyone
by-laws, orders, decisions and ALL OTHER ACTION (whether legislative,
- Institutions controlled by government (agents):
administrative or judicial) which depends for its validity on statutory authority.
actors; just because an organization is created by statute, relies on government
- There are many examples which illustrate that bodies or persons possessing
funding for its survival, and serves a public purpose does not render them a
statutory authority are often independent of the federal or provincial governments.
government body. The government must have some type of direct control in
- The Charter applies to the exercise of statutory authority regardless of whether
shaping the organization’s policies for it to be considered a government body
the actor is part of the government or is controlled by the government – it is the
(McKinney v University of Guelph – Court held that universities are not subject to
exertion of a power of compulsion granted by statute that causes the Charter to
the Charter, but colleges are)
apply.
- Entities implementing government programs: Entities will be subjected to
- But there are cases which deviated from that position. Still, Hogg says that this
the Charter not if they are characterized as ‘government’, but ALSO if they
is a requirement for a body/person who is exercising statutory authority to be
perform an act properly characterized as a government activity.
bound by the Charter. One deviation was in Eldridge, where it was held that the
involves looking not at the organization itself, but at the specific act which the
Charter was applicable despite the absence of any power of compulsion (Hogg
organization performs.
disagrees w/ the case –but Hogg isn`t the law).
organization is subject to the Charter with regards to that act (see Eldridge)
Here, not governmental
This analysis
If the act is found to be an act of government, the
- So, if there is an entity exercising statutory powers of compulsion, then they will
be subject to Charter (see, for e.g., Slaight): The result of the decision in Slaight
 Government “inaction”
is that some adjudicative bodies, such as administrative tribunals and labour
- S 32 provides that the Charter applies to all matters within the authority of the
adjudicators, are bound by the Charter,
federal and provincial governments. If a Charter right or freedom requires the
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fulfilment of a positive obligation, the Charter will apply to inaction on the part of
FACTS: A group of deaf individuals sought a declaration that the failure to
the government with jurisdiction to meet that obligation
provide public funding for sign language interpreters for the deaf when they
- Vriend case - contains discussion of the inaction issue in the context of equality
received medical services violated s.15 of the Charter.
rights
ISSUE: Is the charter enforceable against hospitals, particularly with regards to
the way they deliver medical services?
 Courts
REASONING:
- The Charter appears to apply to courts (see BC Government Employees’ Union v
 There is no question that the Charter applies to provincial legislation.
BC), i.e. a court falls under the term “government”
 There is no doubt that the Charter also applies to action taken under statutory
- But in Dolphin Delivery, SCC stated that courts not part of government for
authority
purposes of s 32(1) of Charter (but has since been generally ignored)
 A primary question in the present case is whether the alleged breach of s. 15(1)
arises from the impugned legislation itself or from the actions of entities
 Common law
exercising decision-making authority pursuant to that legislation.
- In Canada, if the applicable law is a rule of the common law, the Charter does
 It is first necessary to decide whether the legislation impugned in the present
not apply; if it is a rule of statute, it does apply (Dolphin Delivery)
appeal can be interpreted in conformity with the Charter.
- But it does influence the way the Charter is interpreted, and therefore the
appellants proposed an alternative argument akin to the framework set out in
Charter indirectly applies to the c/l (see Hill v Church of Scientology)
Slaight. She suggested that both statutes could be read to conform with s. 15(1).
Counsel for the
Under this theory, it is not the legislation that is constitutionally suspect, but
 Private action
rather the actions of delegated decision-makers in applying it
- The Charter regulates the relations b/w government and private persons, but it
 Assuming that the failure to provide sign language interpreters in medical
does not regulate the relations between private persons and private persons
settings violates s. 15(1) of the Charter in some circumstances, I do not see how
- There are critiques of this, but Hogg thinks it’s an appropriate setup
the Medical and Health Care Services Act can be interpreted as mandating that
result (i.e. Counsel for appellant is right)
Eldridge v BC
 The issue is whether the Charter applies to the body employing the Act.
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 Typically, courts seek to determine if the entity (e.g. hospital) is itself a
 The Charter applies not only to Parliament, the legislatures and the
government body for the purposes of s. 32. This involves an inquiry into whether
government themselves, but also to all matters within the authority of those
the entity can, either by its very nature or by virtue of the degree of governmental
entities
control exercised over it, properly be characterized as ‘government’.
 There are two ways to determine whether the Charter applies to an entity’s
 Hospitals cannot be characterized as government because they have autonomy
activities: by enquiring into the nature of the entity or by enquiring into the nature
as to who sits on their Boards, and the manner in which they hire staff and deliver
of its activities. If the entity is found to be “government”, either because of its
health care.
very nature or because the government exercises substantial control over it, all its
 HOWEVER, an entity may be found susceptible to Charter analysis with
activities will be subject to the Charter.
respect to a particular ACTIVITY that can be ascribed to the government -- This
demands not an examination of the entity but the act itself.
If the act is
governmental in nature - for example, the implementation of a specific statutory
[5]
OVERRIDE OF RIGHTS: s 33
scheme or a government program- the entity performing it will be subject to
review under the Charter only in respect of that act.
- Through the use of this override power, the Parliament or a Legislature is
 Health care is a keystone of government policy, so any organization providing
enabled to enact a statute limiting (or abolishing) one or more of the rights or
health care (including hospitals) must do so in a way that conforms to Charter
freedoms guaranteed by s 2 or ss 7 – 15
provisions.
-
RATIO:
Entities will be subjected to the Charter not only if they are
S 33(3) is a sunset clause, under which an express declaration will
automatically expire at the end of five years. Section 33(4) permits the express
characterized as ‘government’, but ALSO if they perform an act properly
declaration to be re-enacted
characterized as a government activity.
- The declaration must be express to override rights
This analysis involves looking not at the
organization itself, but at the specific act which the organization performs. If the
- The declaration must refer specifically to the Charter provision that is to be
act is found to be an act of government, the organization is subject to the Charter
overridden; a declaration that doesn’t refer to any Charter provision would not be
with regards to that act.
effective
- More than one provision, or even all, can be referred to (Ford)
Greater Vancouver Transportation Authority v Canadian Federation of Students
- The declaration must be specific as to the statute, but blanket declarations,
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encompassing omnibus statutes, are allowed (Ford)
derogation only.”
- The declaration cannot be retroactive (Ford)
RATIO: The court held that Quebec could enact this blanket legislation
immunizing all their legislation from Charter scrutiny, under section 33
Ford v Quebec
(need express language such that the infringement on Charter rights would
FACTS: Quebec, the only province to oppose the creation of the Charter, wanted
be sufficiently drawn to public attention). However Quebec could not do this
to create an automatic rule that would have ALL their legislation operate
retroactively (would not apply to legislation already in effect prior to the
notwithstanding the charter.
omnibus legislation).
ISSUE:
Whether legislation overriding multiple sections of the Charter is
COMMENTS: Despite ease with which s. 33 may be invoked, use of the
acceptable; whether an all-encompassing (omnibus) use of the override is valid
override would be politically crippling for most governments. Mechanism is
(obiter); and whether a retrospective override clause is acceptable (obiter)
simple but the reality political costs of invoking s.33 will keep governments in
REASONING:
check. If the federal government had used s. 33 selectively since 1982, it might
 SCC held that s. 33 declaration is sufficiently express if it refers to the number of
be acceptable to use it now. But we have created a culture in which the use of the
the section, subsection or paragraph of the Charter which contains the provision or
clause now would be met with political disapprobation.
provisions to be overridden.
The requirement (suggested by the CoA) 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, which is
[6]
FREEDOM OF RELIGION: s 2(a)
unacceptable
 SCC held that ominous reference to rights was sufficient; not reasonable to
- s 2(a) guarantees “everyone the fundamental freedom of conscience and
require a reference that was particular to the statute containing the declaration,
religion”
because a legislative body “might not be in a position to judge with any degree of
certainty what provisions of the Charter might be successfully invoked against
 Freedom of conscience
various aspects of the Act in question”
- S 2(a)’s reference to “conscience” would protect systems of belief which are not
 SCC held normal presumption against retroactivity should be applied to the
theocentric (centred on a deity), and which are not characterized as religions for
language of s.33, and the section should be construed as permitting “prospective
that reasons
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- Not important
perform or abstain from performing otherwise harmless acts because of the
religious significance of those acts to others”.
- But See Edwards Books case. The SCC upheld a law that prohibited retail
Freedom of Religion
stores from opening on Sunday based on its secular purpose. The law was upheld
despite it’s EFFECT of imposing economic burden on those retailers who
observed Sabbath on a day other than Sunday. The secular purpose of providing a
 Freedom of religion
common pause day was sufficiently important to justify a limit on freedom of
- Leading case is Big M Drug Mart
religion.
- Definition of religion offered in this case: “The essence of freedom of religion
necessarily infringed when a statutory obligation coincides with the dictates of a
is the right to entertain such religious beliefs as a person chooses, the right to
particular religion. When freedom of religion IS infringed, it may be a justifiable
declare religious beliefs openly and without fear of hindrance or reprisal, and
limit in light of (1) an ameliorative objective held by the government, and (2)
the right to manifest religious belief by worship and practice or by teaching
evident efforts by the government to accommodate the rights of those affected”
and dissemination”
-
-
s
2(a)
protects
religious
practices
and
beliefs
The ratio of Edwards Books is this: “Religious freedom is not
In short, the Sunday closing cases establish that there is a constitutional
obligation under s 2(a) to accommodate those persons whose religion calls for
observance of a Sabbath on a day other than Sunday
 Sunday observance/Sunday shopping cases
- Issue in these cases was whether people should have the ability to make a profit
 Tolerance of other religious practices
on Sundays; challenges were brought by companies who wished to open their
- Big M Drug Mart indicated that freedom of religion would not protect minority
stores on Sundays in order to maximize profits.
religious groups in such practices which injure his or her neighbours. But that has
- R v Big M Drug Mart statute was struck down because it’s PURPOSE was to
been overruled.
compel the observance of Christian Sabbath, which is not compatible w/ 2(a).
- The idea that freedom of religion authorizes religious practices only so far as
The Lord’s Day Act, in its purpose and effects, infringes this guarantee, and is not
they do not injure others has been abandoned by the SCC in favour of an
justifiable under s. 1. The ratio of Big M is this: “The guarantee of freedom of
unqualified right to do anything that is dictated by a religious belief (BR v
conscience and religion prevents the government from compelling individuals to
Children’s Aid Society). This case involved a law that said that child must have
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blood transfusion if life in danger. Court said this violates s 2(a). HOWEVER,
[Note:
It seems that while s 2(a) is very broad, s 1 cuts back its scope,
the law was upheld under s 1.
particularly where s 2(a) is being relied upon by the applicant in a situation where
- In Ross v NB School District, the SCC again held that a damaging practice was
they, themselves, are at risk of harm, or there is harm to others, whether in the
protected by freedom of religion (namely the dissemination of the opinion that
form of physical or psychological harm]
Christian civilization was being destroyed by an international Jewish conspiracy).
HOWEVER, part of the order could be justified under s 1 as a measure to remedy
 Waiver of religious practice
an anti-semetic environment in the school (the order being moving him to a non-
- Bruker v Marcovitz indicates that you can contract to withhold a religious
teaching position).
practice/belief, although Syndicat Northwest indicates you cannot
- The ambit of s 2(a) was expanded even more in Syndicat Northwest v Amselem.
The Court defined protected religious practice in an extraordinarily broad fashion:
 Religion in public schools
the practice need not be part of an established belief system, or even a belief
- See Zylbeerberg and Canadian Civil Liberties Association cases – it is
system shared by some others; it could be unique to the claimant. The
unconstitutional to impose Christian beliefs on all students, even if non-Christian
practice need not be perceived as obligatory by the claimant; “voluntary
students can opt out of religious practices
expressions of faith” were equally protected.
All that was necessary to
qualify a practice for Charter protection was that the claimant sincerely
Syndicat Northcrest v Amselem (New definition of “religion” provided – i.e.
believed that the practice was “of religious significance”. The test is purely
Court sets out the test for determining whether what a claimant claims is a
subjective. And, the individual also has a right to ACT on those views
“religious” belief or practice pursuant to s (2)(a) is in fact protected by that
- In Multani, the issue was whether a boy was constitutionally entitled to wear a
section)
kirpan to his school in the face of a school board regulation that prohibited
FACTS: The cases which are the subject of this appeal involve a religious claim
students from bringing weapons and other dangerous objects to school. All that
by the appellants for the setting up of a “succah” for nine days a year in the
the student had to show was “that his personal and subjective belief in the
pursuit of their religious beliefs on their co-owned property under the Quebec
religious significance of the kirpan is SINCERE”, which he did.
Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (the “Quebec
Charter”). The Quebec courts denied the claim
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ISSUES:
(1) Whether the clauses in the by-laws of the declaration of co-
undertake practices and harbour beliefs, having a nexus with religion, in which an
ownership, which contained a general prohibition against decorations or
individual demonstrates he or she sincerely believes or is sincerely undertaking in
constructions on one’s balcony, infringe the appellants’ freedom of religion
order to connect with the divine or as a function of his or her spiritual faith,
protected under the Quebec Charter; (2) if so, whether the refusal by the
irrespective of whether a particular practice or belief is required by official
respondent to permit the setting up of a succah is justified by its reliance on the
religious dogma or is in conformity with the position of religious officials. Both
co-owners’ rights to enjoy property under s. 6 of the Quebec Charter and their
obligatory as well as voluntary expressions of faith should be protected
rights to personal security under s. 1 thereof; and (3) whether the appellants
- A claimant need not show some sort of objective religious obligation,
waived their rights to freedom of religion by signing the declaration of co-
requirement or precept to invoke freedom of religion. Such an approach
ownership.
would be inconsistent with the underlying purposes and principles of the freedom
REASONING:
emphasizing personal choice as set out by Dickson C.J. in Big M and Edwards
Definition of freedom of religion
Books.
- What is the definition and content of an individual’s protected right to religious
- That said, while a court is not qualified to rule on the validity or veracity of
freedom under the Quebec (or the Canadian) Charter? This Court has long
any given religious practice or belief, or to choose among various
articulated an expansive definition of freedom of religion, which revolves around
interpretations of belief, it is qualified to inquire into the sincerity of a
the notion of personal choice and individual autonomy and freedom
claimant’s belief. The court’s role in assessing sincerity is intended only to
- Dickson CJ in Big M first defined “religion”: “The essence of the concept of
ensure that a presently asserted religious belief is in “good faith, neither
freedom of religion is the right to entertain such religious beliefs as a person
fictitious nor capricious, and that it is not an artifice”.
chooses, the right to declare religious beliefs openly and without fear of hindrance
- “Because of the vacillating nature of religious belief, a court’s inquiry into
or reprisal, and the right to manifest religious belief by worship and practice or by
sincerity, if anything, should focus not on past practice or past belief but on a
teaching and dissemination”
person’s belief at the time of the alleged interference with his or her religious
- Must focus on subjective perceptions of religion – determining what the
freedom”
individual sincerely believes
- Expert evidence not required: “Religious belief is intensely personal and can
- Our Court’s past decisions and the basic principles underlying freedom of
easily vary from one individual to another. Requiring proof of the established
religion support the view that freedom of religion consists of the freedom to
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practices of a religion to gauge the sincerity of belief diminishes the very freedom
interference, religious conduct which would potentially cause harm to or
we seek to protect”
interference with the rights of others would not automatically be protected.
- Summary of TEST: at the first stage of a religious freedom analysis, an
individual advancing an issue premised upon a freedom of religion claim must
Application to the facts
show the court that:
- All of the appellants have successfully implicated freedom of religion: The trial
(1) He or she has a practice or belief, having a nexus with religion, which
judge’s approach to freedom of religion was incorrect. First, he chose between
calls for a particular line of conduct, either by being objectively or
two competing rabbinical authorities on a question of Jewish law. Second, he
subjectively obligatory or customary, or by, in general, subjectively
seems to have based his findings with respect to freedom of religion solely on
engendering a personal connection with the divine or with the subject or
what he perceived to be the objective obligatory requirements of Judaism, thus
object of an individual’s spiritual faith, irrespective of whether a particular
failing to recognize that freedom of religion under the Quebec (and the Canadian)
practice or belief is required by official religious dogma or is in conformity
Charter does not require a person to prove that his or her religious practices are
with the position of religious officials or expert testimony; and
supported by any mandatory doctrine of faith. On the issue of sincerity, the trial
(2) He or she is sincere in his or her belief.
judge correctly concluded that the appellant A sincerely believed that he was
- Only then will freedom of religion be triggered.
obliged to set up a succah on his own property. The appellants K and F submitted
Infringement of religious freedom
expert evidence of their sincere individual belief as to the inherently personal
- No right, including freedom of religion, is absolute
nature of fulfilling the commandment of dwelling in a succah. Such expert
- Section 2(a) of the Canadian Charter prohibits only burdens or impositions on
testimony, although not required, suffices in positively assessing the sincerity and
religious practice that are non-trivial.
honesty of their belief.
- So two questions must be asked: whether an individual’s freedom of religion
- The infringement of such a belief by restricting the creation of succah’s is non-
has been infringed based on whether the claimant can demonstrate he or she
trivial: It is evident that in respect of A, the impugned clauses of the declaration
sincerely believes in a practice or belief that has a nexus with religion; second,
of co-ownership interfere with his right in a substantial way, as a prohibition
whether the impugned conduct/legislation interferes with the individual’s ability
against setting up his own succah obliterates the substance of his right. In the case
to act in accordance with that practice or belief in a manner that is non-trivial
of K and F, they have proven that the alternatives of either imposing on friends
-
and family or celebrating in a communal succah as proposed by the respondent
Note, however, even if the claimant successfully demonstrates non-trivial
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will subjectively lead to extreme distress and thus impermissibly detract from the
Reference re: Same Sex Marriage
joyous celebration of the holiday
Does the Freedom of Religion Guaranteed by Section 2(a) of the Charter Protect
Religious Officials From Being Compelled to Perform Same-Sex Marriages
Waiver
Contrary to Their Religious Beliefs?
- Dalphond J. held, and the respondent contends, that the appellants had waived
- The concern here is that if the Proposed Act were adopted, religious officials
their rights to freedom of religion — or had implicitly agreed with the terms of
could be required to perform same-sex marriages contrary to their religious
the by-laws — when they signed the declaration of co-ownership, and that the
beliefs.
appellants must comply with the impugned provisions of the Sanctuaire’s by-laws
- If a promulgated statute were to enact compulsion, we conclude that such
- Whether one can waive a constitutional right like freedom of religion is a
compulsion would almost certainly run afoul of the Charter guarantee of freedom
question that is not free from doubt
of religion, given the expansive protection afforded to religion by s. 2(a) of the
- But I need not explore that question in this case. I say that because, even
Charter.
assuming that an individual can theoretically waive his or her right to freedom of
- The right to freedom of religion enshrined in s. 2(a) of the Charter encompasses
religion, I believe that a waiver argument, or an argument analogous to waiver,
the right to believe and entertain the religious beliefs of one’s choice, the right to
cannot be maintained on the facts of this case for several reasons – in short, they
declare one’s religious beliefs openly and the right to manifest religious belief by
did not voluntarily, clearly and expressly waiver
worship, teaching, dissemination and religious practice.
their rights to freedom of
religion; further, it cannot be said that the claimants had full knowledge that
- The performance of religious rites is a fundamental aspect of religious practice.
signing the co-ownership agreement would result in the waiver of their rights.
It therefore seems clear that state compulsion on religious officials to perform
HELD:
same-sex marriages contrary to their religious beliefs would violate the guarantee
Based on the foregoing analysis, I find that the impugned provisions in
the declaration of co-ownership prohibiting constructions on the appellants’
of freedom of religion under s. 2(a) of the Charter.
balconies infringe the appellants’ freedom of religion under the Quebec Charter.
The appellants are thus legally entitled to set up succahs
Alberta v Hutterian Brethren of Wilson Colony
COMMENT: There was no s 1 analysis, because this case occurred in Quebec.
FACTS:
Quebec’s Charter doesn’t have that section.
without photos to be issued to persons who objected to having their photograph
Until May 2003, the Registrar of Motor Vehicles allowed licences
taken on religious grounds. In 2003 this exemption was removed via the Operator
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Licensing and Vehicle Control Regulation, Alta. Reg. 137/2003, made under the
- Given these beliefs, the effect of the universal photo requirement is to place
Traffic Safety Act, R.S.A. 2000, c.T-6. According to the government, the universal
Colony members who wish to obtain driver’s licences either in the position of
photo requirement was adopted to minimize identity theft arising from the use of
violating their religious commitments, or of foregoing driver’s licences
driver’s licences. To carry out this objective, all photos taken for driver’s licences
- An infringement of s. 2(a) of the Charter will be made out where:
were placed in a facial recognition bank.
Hutterites, including the members of the Wilson Colony in southern Alberta,
(1) the claimant sincerely believes in a belief or practice that has a nexus
with religion; and
believe that it is contrary to the Second Commandment to have their photo
(2) the impugned measure interferes with the claimant’s ability to act in
willingly taken. Following 2003, they proposed that they be issued licences
accordance with his or her religious beliefs in a manner that is more than
without photos, marked “Not to be used for identification purposes.” The
trivial or insubstantial (i.e. whether the claimants’ religious beliefs or
government did not accept this proposal, and suggested two alternatives: (1)
conduct might reasonably or actually be threatened): Syndicat Northcrest v.
licences would display a photo but be carried in a sealed envelope indicating they
Amselem
were the property of Alberta, or (2) licences would be photo-less, but digital
- The first part was conceded, and the second part, by lower courts, was assumed,
photos of Hutterite drivers would be placed in the facial recognition bank. The
so move on to s 1 analysis
government’s proposals were said to be aimed at “minimiz[ing] the impact of the
universal photo requirement on religious beliefs by removing the need for Colony
Section 1 analysis
members to have any direct contact with the photos” (at para. 12), but members of
the Wilson Colony rejected the proposals on the basis that the act of taking the
Is the limit prescribed by law?
photos was itself a violation of the Second Commandment
- Although the limit was set out in a regulation rather than primary legislation, it
ISSUE: Freedom of religion and the nature of the limit on s 2(a) right; Is the
is still “prescribed by law”
limit justified under s 1?
REASONING:
Is the purpose of the limit pressing and substantial?
Freedom of religion and nature of limit
- The purpose of the law is maintaining integrity of the driver’s licensing system
- The members of the Colony believe that permitting their photo to be taken
in a way that minimizes the risks of identity theft.
violates the Second Commandment
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- This is a goal of pressing and substantial importance, capable of justifying limits
a. Salutary effects: A couple of salutary effects were raised on evidence,
on rights.
the most important being the enhancement of the security and integrity of
the driver’s licensing scheme. Internal integrity of the system would be
compromised without this requirement. The requirement of a photo on a
driver’s licence serves the additional purpose of assisting police officers in
Proportionality test
reliably identifying drivers at the roadside.
(1) Is the limit rationally connected to the purpose? The Province must show that
b. Deleterious effects: Because religion touches so many facets of daily
the universal photo requirement is rationally connected to the goal of preserving
life, and because a host of different religions with different rites and
the integrity of the driver’s licensing system by minimizing the risk of identity
practices co-exist in our society, it is inevitable that some religious
theft through the illicit use of driver’s licences. The government put forward
practices will come into conflict with laws and regulatory systems of
evidence to show that the universal photo requirement is more effective in
general application. The bare assertion by a claimant that a particular
preventing identity theft than a system that grants exemptions, and so it is
limit curtails his or her religious practice does not, without more,
rationally connected
establish the seriousness of the limit for purposes of the proportionality
(2) Does the limit minimally impair the right? In making this assessment, the
analysis. We must go further and evaluate the degree to which the limit
courts accord the legislature a measure of deference. The evidence discloses no
actually impacts on the adherent. The Charter guarantees freedom of
alternative measures which would substantially satisfy the government’s objective
religion, but does not indemnify practitioners against all costs incident to
while allowing the claimants to avoid being photographed. All other options
the practice of religion.
would significantly increase the risk of identity theft using driver’s licences. The
HERE, is not a case like Edwards Books or Multani where the
measure seeks to realize the legislative goal in a minimally intrusive way
incidental and unintended effect of the law is to deprive the adherent of a
(3) Is the law proportionate in its effect? In other words, when one balances the
meaningful choice as to the religious practice. On the evidence before us,
harm done to the claimants’ religious freedom against the benefits associated with
that cost does not rise to the level of depriving the Hutterian claimants of a
the universal photo requirement for driver’s licences, is the limit on the right
meaningful choice as to their religious practice, or adversely impacting on
proportionate in effect to the public benefit conferred by the limit?
other Charter values. The law does not compel the taking of a photo. It
merely provides that a person who wishes to obtain a driver’s licence must
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permit a photo to be taken for the photo identification data bank. Driving
- There are a number of rationales, including: it’s role as an instrument of
automobiles on highways is not a right, but a privilege. While most adult
democratic government; it’s role as an instrument of truth; the instrument of
citizens hold driver’s licences, many do not, for a variety of reasons.
personal fulfilment. Irwin Toy accepted each of these reasons for protecting
c. Weighing the salutary and deleterious effects: Balancing the salutary
freedom of expression
and deleterious effects of the law, I conclude that the impact of the limit
- The breadth of this right is entailed by acceptance of the personal fulfilment
on religious practice associated with the universal photo requirement for
rationale (e.g. R v Sharpe: there was a constitutional challenge to the offence of
obtaining a driver’s licence, is proportionate.
possession of child pornography; the SCC acknowledged that such material made
HELD: I conclude that the limit on the Colony members’ freedom of religion
no contribution to democratic government and made no contribution to the search
imposed by the universal photo requirement for holders of driver’s licences has
for truth, but the Court held that it should be constitutionally protected because of
been shown to be justified under s. 1 of the Charter
its role as an instrument of personal fulfilment)
Meaning of expression
[7]
FREEDOM OF EXPRESSION: s 2(b) Charter
 Definition of “expression”
- To be protected under s 2(b), the relevant activity must be an “expression”. An
- Section 2(b) guarantees everyone the “fundamental freedom” of “freedom of
“expression” is an activity which attempts to convey meaning (R v Keegstra;
thought, belief, opinion, and expression, including freedom of the press and other
Irwin Toy).
media of communication”
- There isn’t much activity that ISN’T included in this definition.
- For all Charter rights, there is a 2 stage process: first, you must ask whether the
definitely excluded is that which is “purely physical and does not attempt to
law (or action) has the purpose or effect of limiting the relevant right; second, the
convey meaning” (Irwin Toy)
But what is
issue is whether the law can be upheld under s 1 if there is an infringement. But
for s 2(b), because of how broadly it has been interpreted, in most cases it is easy
 Criminal expression
to conclude that the impugned law does limit s 2(b). The issue generally is s 1.
- “Solely because activities have been made subject of criminal offences doesn’t
Reasons for protecting expression
mean they aren’t protected by s 2(b)” (Keegstra) (e.g. hate propaganda offences
limits s 2(b), but has been saved under s 1)
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Language
 Violence
- Freedom of expression includes the freedom to express oneself in the language
- Expressive activity that takes the form of violence is not protected (Irwin Toy)
of one’s choice (Ford v Quebec)
 Content neutrality
Commercial expression
- “The content of a statement cannot deprive it of the protection accorded by s
 Protection of commercial expression
2(b) no matter how offensive it may be (e.g. Keegstra = SCC held that the
- Commercial expression is constitutionally protected (Ford v Quebec)
promotion of hatred against Jews is protected by s 2(b)”)
- Commercial expression, of which the most important example is advertising, is
- Deliberate falsehoods are protected by s 2(b) (see R v Zundel; R v Lucas)
expression designed to promote the sale of goods and services, and is protected
- The implication of this is that s 2(b) extends to much activity that isn’t worthy
of constitutional protection
 Advertising restrictions
Regulating time, manner and place of expression
- E.g. Irwin Toy:
The SCC upheld a law that prohibited all commercial
- The least severe form of restriction on expression is the regulation of the time,
advertising directed at children under 13 (the protection of a particularly
manner and place of expression. Because such restrictions do not regulate the
vulnerable group was a sufficiently important purpose to be upheld under s 1)
CONTENT of expression, a court would likely uphold the impugned law under s
- E.g. Rocket v Royal College of Dental Surgeons: Dentists were prohibited from
1
advertising their services, and the restriction was struck down as being overly
- But the regulation of time, manner and place can be so broad as to amount to an
broad
unacceptable restriction on expression (Ramsden v Peterborough)
-E.g. RJR Macdonald v Canada AG: MacDonald (Tobacco Company) disputed
- Note: for regulation the place of expression, regulating private space is not
legislation involving ban on tobacco advertising.
subject to Charter review. For regulating expression in public space, see “access
legislation breached s. 2(b). The court held that there was enough evidence to
to public property” below for a specific test to see if the Charter protects
show a rational connection between an advertising ban and the objective of
expression there.
reducing smoking, but that there is no rational connection between the general
All parties accepted that
ban of ads, and a decreasing consumption of cigarette smoke. But Court could
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not accept that a total ban on all forms of advertising, including purely
informational advertising, was the least drastic means of accomplishing the
Hate propaganda
objective, thus failing on the minimum impairment limb. Majority held that the
- Hate propaganda is material that promotes hatred against minority groups
legislation would not have breached freedom of expression had it been targeted at
- R v Keegstra: K, who had been found guilty of making anti-semetic remarks to
things like ‘recruitment of new smokers’ or ‘young people’ or association of
his students, had engaged in constitutionally protected activity, the SCC held. But
smoking with things cool/hip (delineated categories, rather than all-encompassing
the Court went on to uphold the criminal offence under s 1
ban). Because it was a general ban, the majority held that it overly impaired 2(b)
freedom.
Defamation
- The tort of defamation provides a civil remedy for a person whose reputation has
 Commercial signs
been damaged by false statements made by the defendants
- Commercial signs are protected by s 2(b)
- In Hill v Church of Scientology, the SCC held that false and injurious statements
- R v Guignard: A municipal by law prohibited advertising signs and billboards
are not deserving of much protection
except in industrial zones of the municipality. The SCC held that this infringed
G’s right to put up a sign on his property, and the limit could not be justified
Pornography
under s 1 (the Court decried the law as arbitrary and disproportionate to any
-
benefit that it secures for the municipality)
obscenity, is protected expression
The expression cases in the SCC make clear that pornography, including
- R v Butler: The SCC held that the prohibition of obscenity in the CC offended s
Picketing
2(b); however, the Court held that the prohibition could be upheld under s 1.
- There is a communicative element to a picket line, and therefore it constitutes
- See also R v Sharpe for the constitutionality of child pornography law
“expression” w/in s 2(b) (Dolphin Delivery)
- Many provinces confer a power on a board to censor, or deny approval, to
- See also Vancouver Courthouse: Injunction issued to prohibit picketing of the
exhibit or distribute a film that is regarded as pornographic.
courts. SCC held that the injunction was a limit on freedom of expression, but
censorship is the most severe kind of limit on freedom of expression. Can such
could be justified by s 1.
limits be justified under s 1? If the power of censorship granted extends to
- See also UCFW v Kmart; Pepsi Cola Canada v RWDSU
material that would not be obscene under the Butler test, then it likely will fail s 1
This kind of
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(3) self fulfilment”
Access to public property
- First, because the Charter does not apply to private action, s 2(b) confers no
Access to courts
right to use private property as a forum of expression. With respect to PUBLIC
- Remember that “freedom of press” is explicitly guaranteed in s 2(b)
property, since the Charter applies to governmental action, s 2(b) is potentially
applicable
 Restrictions on reporting
- General rule (and if the circumstances are appropriate), is that the right to public
- Freedom of process includes the freedom to publish reports of proceedings in
property is protected for expression purposes (Committee for the Cth of Canada v
court. But this isn’t an unqualified right (e.g. there can be restrictions where the
Canada; Ramsden v Peterborough)
purpose of the restriction is to protect the identity of complainants in sexual
-
assault cases: Canadian Newspapers Co v Canada)
The Montreal v 2952-1366 Quebec case is the authority for the
applicability/scope of the right: A strip club in Mtl set up a loudspeaker at its
- The relevant test/standard to be applied in these types of cases is that court
street entrance which it used to broadcast music and commentary that
proceedings are to be open UNLESS disclosure would subvert the ends of justice
accompanied the show within.
or unduly impair its proper administration (Toronto Star Newspapers)
The club was charged under a by law that
prohibited noise produced by sound equipment that could be heard outside a
building. The broadcast conveyed a message about the show in the club, and so
 Restrictions on access
that was an expression; because the transmission was transmitted onto public
- Freedom of the press also includes the right to be present in court (Edmonton
property (the street), that was prohibited by the by law.
Journal v Alta)
The by law was
- In Re Vancouver Sun, the SCC emphasized that the “open court principle” was
challenged.
In determining whether the expression was protected, the Court formulated a
test for the application of s 2(b) on public property: “ask....whether the public
guaranteed by s 2(b), and it could be limited by s 1 only if the standards of
justification in Dagenais and Mentuck were satisfied
place is one where one would expect 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
Montréal (City) v. 2952-1366 Québec Inc
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FACTS:
This appeal concerns the power of the city of Montréal (“City”) to
prohibit noise produced in the street by a loudspeaker located in the entrance of an
establishment
Regardless of the fact that the government owns and hence controls its
property, it is asserted, many government places are essentially private in use.
TEST: The basic question with respect to expression on government-
ISSUE: Whether the provisions of the by-law are constitutionally invalid
owned property is whether the place is a public place where one would
REASONING:
expect constitutional protection for free expression on the basis that
A. Does Article 9(1) of the by-law infringe s 2(b) of the Charter?
expression in that place does not conflict with the purposes which s. 2(b) is
- The answer to this question depends on the answers to three questions (see
intended to serve, namely (1) democratic discourse, (2) truth finding and (3)
Irwin Toy):
self-fulfillment. To answer this question, the following factors should be
considered:
(1) First, did the noise have expressive content, thereby bringing it within s. 2(b)
protection?
YES. The fact that the message may not, in the view of some, have
been particularly valuable, or may even have been offensive, does not deprive it
of s. 2(b) protection. Thus, it is presumptively protected by s 2(b).
(a) The historical or actual function of the place; and
(b) Whether other aspects of the place suggest that expression
within it would undermine the
values underlying free expression [E.g. Is the space in fact
(2) Second, if so, does the method or location of this expression remove that
essentially private, despite being
protection? Expressive activity may fall outside the scope of s 2(b) because of
government-owned, or is it public? Is the function of the
how or where it is delivered. While all expressive content is worthy of protection
space — the activity going on there —
(see Irwin Toy, at p. 969), the method or location of the expression may not be.
compatible with open public expression? Or is the activity one
This case raises the question of whether the location of the expression at issue
that requires privacy and limited
causes the expression to be excluded from the scope of s. 2(b). The question here
access? Would an open right to intrude and present one’s
is whether s. 2(b) of the Canadian Charter protects not only what the appellants
message by word or action be
were doing, but their right to do it in the place where they were doing it, namely a
public street.
consistent with what is done in the space? Or would it
hamper the activity?]
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Application: “Amplified emissions of noise from buildings onto a public street
-
could further democratic discourse, truth finding and self-fulfilment. Here, there
with the means chosen to meet the objective. Here the City chose a two-pronged
is nothing to suggest that to permit this medium of expression would subvert the
attack on noise pollution. First, it prohibited noises exceeding a stipulated degree
values of s. 2(b)”
of loudness: art. 8. Second, it prohibited particular noises — namely noise that
As background to this stage, note the following: Proportionality is concerned
can be heard from the outside and is produced by sound equipment, whether it is
(3) Third, if the expression is protected by s. 2(b), does the By-law infringe that
inside a building or installed or used outside: art. 9. Noise targeted by art. 9 is
protection, either in purpose or effect?
prohibited regardless of whether it affects an inhabited place: art. 11. It is
- Here, the purpose of the By-law is benign. However, its effect is to restrict
important, however, to note that art. 9 does not represent an absolute ban. Unlike
expression. It follows that the By-law has the effect of restricting expression
in Ramsden, where no relief from the restrictive by-law was possible, the scheme
which promotes one of the values underlying s. 2(b) of the Canadian Charter
of the By-law in this case anticipates routine granting of licences as exceptions to
- We conclude that the City’s ban on emitting amplified noise constitutes a limit
the prohibition:
on free expression under s. 2(b) of the Canadian Charter
(a) Rational connection?
B.
-
Is the limit justified under s 1 of the Charter?
The first question is whether the limit on noise
produced by sound equipment is rationally connected to the City’s objective of
Onus is on the City to show that the limit is directed at a pressing and
limiting noise in the streets. Clearly it is. Amplified noise emitted into the street
substantial objective, and that the limit is proportionate in the sense of being
may interfere with the activities of people using the street and the buildings
rationally connected to the objective, impairing the right to freedom of expression
around it.
in a reasonably minimal way, and having an effect in terms of curtailment of the
right that is proportionate to the benefit sought: R. v. Oakes
(b) Minimal impairment?
In dealing with social issues like this one, where
interests and rights conflict, elected officials must be accorded a measure of
(1) Objective: Pressing and substantial? Yes. Combating noise pollution is
latitude. The Court will not interfere simply because it can think of a better, less
the objective. This is serious problem in urban centres
intrusive way to manage the problem.
with the complex problem it was facing.
(2) Proportionality assessment
There is no other practical way to deal
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(c) Proportionate effect? In our view, the test supports the conclusion that the
- A fetus is not everyone, therefore cannot bring an action in s 7 on its behalf
By-law is valid. The expression limited by the By-law consists of noise produced
- Our charter is not here to protect property
by sound equipment that interferes with the peaceful use and enjoyment of the
- The is no breach of the s 7 rights UNLESS there has been a failure to comply
urban environment. This limitation therefore goes to the permitted forms of
with the principles of fundamental justice
expression on city streets, regardless of content.
- Outside the sphere of criminal justice, only a few laws touch life, liberty or
Against this stand the benefits
of reducing noise pollution on the street and in the neighbourhood. We
security of the person
acknowledge that in balancing the deleterious and positive effects of the By-law,
- “Section 1 may, for reasons of administrative expediency, successfully come to
account must be taken of the fact that the activity was taking place on a street with
the rescue of an otherwise violation of s. 7, but only in cases arising out of
an active commercial nightlife in a large and sophisticated city. This does not,
exceptional conditions, such as natural disasters, the outbreak of war, epidemics,
however, mean that its residents must necessarily be subjected to abuses of the
and the like” (Reference Re BC Motor Vehicles Act)
enjoyment of their environment
HELD: Although this provision limits the freedom of expression guaranteed by
Elements of s 7
s. 2(b) of the Canadian Charter, the limit is reasonable and can be justified within
the meaning of s. 1 of the Canadian Charter.
Life
- This section has little work to do because governmental action rarely causes
[8]
LIFE, LIBERTY AND SECURITY OF THE PERSON: s 7
death
- But excessive waiting times for treatment in the public health care system of
Background
Quebec increased the risk of death and were found to be a violation of the right to
- S 7: “Everyone has the right to life, liberty and security of the person and the
life (as well as security of the person) (see Chaoulli)
right not to be deprived thereof except in accordance w/ the principles of
fundamental justice”
Liberty
- A corporations is not “everyone”
 Physical liberty
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- Liberty includes freedom from physical restraint (so any law that imposes the
- Law which forbid the purchase of private health insurance was said to infringe
penalty of imprisonment, whether the sentence is mandatory or discretionary, is
security of person, because it ultimately led to delays in treatment, which had the
by virtue of that penalty of a deprivation of liberty, and must conform to the
effect of putting life’s at risk (Chaoulli) [Note: Majority found this breached
principles of fundamental justice)
Quebec Charter, which doesn’t use the phrase “fundamental justice”. So, it will
- A law that imposes only a fine is not a deprivation of liberty, and need not
take another case to determine whether they are in breach of the Canadian
conform to the principles of fundamental justice
Charter]
- Changes in sentences involve a deprivation of liberty, although not necessarily
- Security includes control over one’s body (Rodriguez – assisted suicide case)
in violation of principles of fundamental justice (Cunningham)
- Security protects psychological integrity (New Brunswick) and protects against
- Transfer of a prisoner to a higher level prison deprives liberty (May v Ferndale)
state induced psychological stress, such as where there has been excessive delay
- Although “liberty” is generally taken to mean “physical liberty”, the majority in
caused by admin tribunals (Blencoe)
Blencoe said liberty also deals with a person’s ability to make fundamental
personal choices
Fundamental justice
 Procedure and substance
 Economic liberty
- The term “fundamental justice” covers substantive as well as procedural justice
- Not included
(BC Motor Vehicle Reference)
- This is unlike how the term was used in the Canadian Bill of Rights. There, it
Security of the person
was used as an equivalent of “natural justice”, which are rules of procedure (e.g.
- A law that authorized corrective force against children infringed security of
requirement of a hearing, unbiased adjudication). In that context, the courts
person, but held there was no violation of principles of fundamental justice
would not be entitled to review the substantive justice of the deprivation
(Canadian Foundation for Children)
- Further, the legislative history of s 7 makes clear that the framers thought that
- Abortion law in CC which restricted abortions, and which resulted in delays in
“fundamental justice” meant natural justice
treatment, and which ultimately increased risk to women’s health, was held to
- There is a problem with moving to substantive justice, and that is the result is
deprive women of security of person (Morgentaler)
indeterminacy [Note: there are a number of times in this chapter where this
issue comes up – keep an eye out for it]
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- Lamer J in BC Motor Vehicle Reference gave 3 reasons for extending
- In R v Malmo-Levine, the Court postulated 3 requirements for a rule to
fundamental justice beyond procedure. One of his reasons was controversial (i.e
qualify as a “basic tenant of the legal system and therefore a principle of
the residual theory)
fundamental justice”:
- See Hogg book for analysis of whether “substantive” fundamental justice is a
(1) The rule must be a legal principle
good choice
(2) There must be significant societal consensus that it is fundamental
to the way in which the legal
 Definition of fundamental justice
- In BC Motor Vehicle, it was said that “the principles of fundamental justice are
said to be found in the basic tenets of the legal system”
- This is a vague definition, but later decisions haven’t done much better.
system ought to fairly operate
(3)
The rule must be capable of being identified with sufficient
precision to yield to a manageable
standard
- Later decisions indicate that there is little agreement as to what the basic tenets
- E.g., in Canadian Foundation for Children, it was argued that a PoFJ was “the
of our legal system are
best interests of the child”. The SCC upheld the 3 requirements above, and said
- In fact, some cases do not even rely on the “basic tenets of our legal system”
that although “best interests” is a legal principle, it was not fundamental to the
definition (see Cunningham, where it was said in relation to fundamental justice:
legal system
“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”
Four ways of demonstrating that PoFJ have been violated
- In Rodriguez, Sopinka J said that principles of fundamental justice must be
“fundamental in the sense that they would have general acceptance among
reasonable people” [But how does this reflect the basic tenants of our legal
Overbroad laws
system?]
- Overbreadth is a breach of the PoFJ, and therefore a basis for a finding of
- The variety of outcomes re: scope of PoFJ can be accounted for only by the
unconstitutionality in a law that affects life, liberty or security of the person (i.e. it
enormous discretion that the SCC has assumed for itself under the rubric of
is a PoFJ that a law cannot be overly broad)
fundamental justice (indeterminacy issue)
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- And if you conclude that there is overbreadth and, therefore, a breach of PoFJ,
- A vague law violates the principles of fundamental justice, which causes a
then law will almost necessarily fail the s 1 analysis as well, because it will fail
breach of s 7 if the law is a deprivation of life, liberty or security of person (i.e. it
minimum impairment test
is a PoFJ that a law cannot be vague)
- There are practical and theoretical difficulties with this doctrine though (e.g. a
judge who disapproves of a law will always be able it find that it is overbroad)
 Standard of precision
- There are tests set out in Nova Scotia Pharmaceutical. The most useful is the
Disproportionate laws
“legal debate” test (namely whether the rule can be subject to reasonable legal
- Disproportionality is a breach of the principles of fundamental justice, and
debate)
therefore a basis for finding a law which affects life, liberty or security of persons
- Or, more simply, and perhaps the appropriate test - ask whether the law upholds
unconstitutional (i.e it is a principle of fundamental justice that a law cannot be
the two values which the rule against vagueness is supposed to protect: (1) Is
disproportionate in its effect) (Malmo-Levine)
there fair notice to citizens?; (2) Is there a limitation of enforcement discretion?
- Test: (1) Whether a law pursues a legitimate state interest? (2) If yes to one,
whether the law is grossly disproportionate to the state interest
Other things to consider re: s 7
Arbitrary laws
- An arbitrary law offends PoFJ (Chaoulli) (i.e. it is a PoFJ that a law cannot be
arbitrary)
Absolute and strict liability
- A law is arbitrary “if it lacks a real connection on the facts to the purpose the
 Absolute liability offences
law is said to serve”
- Absolute liability + imprisonment = offends PoFJ (BC Motor Vehicle Reference;
R v Hess)
Vague laws
- Absolute liability + no imprisonment + fine = OK (Pontes)
 Void for vagueness
 Strict liability offences
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- The law related to strict liability offences was apparently settled in Wholesale
the basis of a more serious charge? What mens rea elements are required by such
Travel
an offence?
- In the case of a regulatory offence or a public welfare offence, fundamental
- See R v DeSousa; R v Hundal; R v Creighton
justice does not require that mens rea be an element of the offence. Fundamental
justice is satisfied if there is a defence of reasonable care (due diligence), and the
Involuntary acts
burden of satisfying this defence may be cast on the D
 Automatism
- Law in these areas, though, is still very unclear
- The requirement of voluntariness is a basic tenet of the legal system that is
protected by s 7 (i.e. it is a PoFJ that criminal offences be committed voluntarily),
Murder
at least for offences carrying the penalty of imprisonment. This means that the
- Before an accused be found guilty of murder, s 7 requires that there be mens rea
law respecting automatism now has constitutional status, and any attempt by
with respect to the death (Vaillancourt – the “felony murder rule is
Parliament to abolish the defence or restrict its availability would be
unconstitutional)
unconstitutional, unless the limiting law could be justified under s 1
- Subjective foreseeability is required, more specifically (R v Martineau). But
dissent pointed out that subjective foresight of death has never been the exclusive
 Duress
standard for murder in Canada or in other countries that have inherited English
- R v Ruzic held that the immediacy and presence requirements of s 17 were
principles of criminal law. How then did it suddenly become a basic tenet of the
unconstitutional because they had the potential of convicting a person who had
legal system? This points to the indeterminacy of the doctrine of substantive
not acted voluntarily
fundamental justice, and its dependence on the moral attitudes of the judges
 Intoxication
Unforeseen consequences
- There are some Code offences in which the consequences of an unlawful act
Right to silence
dictate the severity of the punishment for which the accused is liable; is it a
- Right to silence a PoFJ (Herbert)
breach of fundamental justice to make an unintended and unforeseen consequence
- Pre trial right to silence evidenced in Herberty and Broyles
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- At trial, s 7 contains a residue of the right to silence and supplements s 11(c) and
- Pre-trial disclosure by the Crown of all information relevant to the conduct of
13 which explicitly guarantee this right
the defence is a constitutional obligation, entailed by the accused’s right to make
full answer and defence
Fair Trial
 The right to a fair trial
 Pre-trial disclosure by 3rd parties
- Principles of fundamental justice require that the accused of a crime receive a
- The access to private records in the possession of third parties could be
fair trial
necessary to an accsued’s right to make full answer and defence. Must engage in
- S 7 is wider than s 11(d), because it applies to civil and administrative
a balancing between full answer and defence and privacy/equality rights of the
proceedings where they affect life, liberty or security of person
other (see O’conner case)
- Extradition process must be conducted in accordance w/ PoFJ because obviously
there is a denial of the liberty of the accused
 Preservation of evidence
- SCC reviewed a radical departure from the traditional trial format in Charkaoui
- The Crown is under a duty to preserve relevant evidence once it comes into the
v Canada. After the issue of a security certificate, the Federal Court judge, on
possession or control of the Crown
review, was required to ensure the confidentiality of the information on which the
certificate was based.
It was held that the issue of the certificate was a
A list of principles of fundamental justice (not exhaustive)
deprivation of liberty under s 7, and the review process did not satisfy the PoFJ
because it didn’t provide the named person with a fair hearing
(i)
Fair judicial process/trial for individuals whose life, liberty or security is at
stake (This basic principle has a number of facets. It comprises the right to a
 Full answer and defence
hearing; it requires that the hearing be before an independent and impartial
- S 7 (in addition to the main s of 11(d)) guarantees the accused the right to
magistrate; it demands a decision by the magistrate on the facts and the law; and
present a full answer and defence (R v Seaboyer)
it entails the right to know the case put against one, and the right to answer that
case) (Charkaoui)
 Pre-trial disclosure
(ii) A law cannot be arbitrary (Chaoulli)
(iii) A law cannot be disproportionate in its effect
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(iv) A law cannot be overly broad
justice. Coming to that conclusion, analysed large amount of evidence. Decision
(v) A law cannot be vague
was upheld by CoA. In SCC, court was divided
(vi)
McLachlin CJ and Major J (Bastarache J concurring):
Certain criminal offences must carry a constitutional requirement of
subjective mens rea (see, e.g. Martineau)
- Agrees with Deschamps J conclusion that the prohibition violates s 1 of the Qbc
(viii) Criminal offences must be committed voluntarily
Charter and violates s 7 of the Canadian Charter, and can’t be saved under s 1
(ix) Where a person is detained or is subject to onerous conditions of release for
an extended period under immigration law, the detention or the conditions must
be accompanied by a meaningful process of ongoing review (Charkaoui)
Section 7 Analysis
Chaoulli v Quebec
A. Deprivation of life, liberty or security of the person?
FACTS:
- They first cite expert evidence of how delays in treatment can lead to physical
Appellants are Zeliotis and Chaoulli. C is a physician whose primary motivation
harm (i.e physical security of the person), and adverse psychological effects
was to get involved in private sector; but Qbc would not permit him to buy private
which they say engages 7.
health care insurance that would duplicate the public. C’s argument was that if
- The jurisprudence of this Court holds that delays in obtaining medical treatment
people were allowed to buy private insurance, that would make his business more
which affect patients physically and psychologically trigger the protection of s. 7
viable (b/c most people cannot pay out of pocket).
of the Charter (e.g. Morgentaler)
Patient, Mr Z, involved in an unusual manner. Mr Z, although had to wait a
- Also, in Rodriguez v. British Columbia, majority held that security of the person
long time for treatment, the wait time problem in the public system wasn’t the
encompasses “a notion of personal autonomy involving, at the very least, control
cause of his particular delay (so not the best representative P); but, courts allowed
over one’s bodily integrity free from state interference and freedom from state-
him to represent individuals who might be in a situation where long wait for
imposed psychological and emotional stress” (pp. 587-88). The prohibition
treatment may be caused by systemic factors
against private insurance in this case results in psychological and emotional stress
At the trial level, the TJ found no violation of s 7. There was an infringement
of security of person, but that was in accordance w/ principles of fundamental
and a loss of control by an individual over her own health.
- Thus, prohibiting health insurance that would permit ordinary Canadians to
access health care, in circumstances where the government is failing to deliver
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health care in a reasonable manner, thereby increasing the risk of complications
- “The evidence on the experience of other western democracies refutes the
and death, interferes with life and security of the person as protected by s. 7
government's theoretical contention that a prohibition on private insurance is
linked to maintaining quality public health care”
B. Deprivation in accordance with principles of fundamental justice?
- The principle of fundamental justice implicated in this case is that laws
that affect the life, liberty or security of the person shall not be arbitrary (see
Malmo-Levine; Rodriguez)
- A law is arbitrary where “it bears no relation to, or is inconsistent with, the
objective that lies behind [it]”. To determine whether this is the case, it is
Section 1 Analysis
necessary to consider the state interest and societal concerns that the
provision is meant to reflect: Rodriguez.
- Having concluded that the prohibition on private health insurance constitutes a
-
Based on evidence in front of the TJ, impugned provisions are arbitrary.
breach of s. 7, we must now consider whether that breach can be justified
Interference is arbitrary if it lacks a real connection on the facts to the purpose of
under s. 1 of the Charter as a reasonable limit demonstrably justified in a free
the interference.
and democratic society. The evidence called in this case falls short of
- Is the interference necessary to providing effective health care under the public
demonstrating such justification.
system?
- The government has an interest in protecting the public health regime. But,
- The government argues that the interference with security of the person caused
given the absence of evidence that the prohibition on the purchase of private
by denying people the right to purchase private health insurance is necessary to
health insurance protects the health care system, the rational connection between
providing effective health care under the public health system.
the prohibition and the objects is not made out. An arbitrary provision will likely
- But the evidence at trial of experience of other countries suggests that there is
never meet the rational connection test.
no real connection in fact between prohibition of health insurance and the
- Also, the denial of access to timely and effective medical care to those in need
goal of a quality public health system.
is not proportionate to the beneficial effects of the prohibition on private
insurance to the health system as a whole. The prohibition goes further than
necessary to protect the public system – it is not minimally impairing it.
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- Finally, the benefits of the prohibition do not outweigh the deleterious
- While in some cases some Quebeckers may have their security put at risk
effects. Prohibiting citizens from obtaining private health care may leave people
due to this prohibition, the difficulty encountered by the claimants is that
no choice but to accept excessive delays in the public system. The physical and
they are unable to demonstrate any principle of fundamental justice that has
psychological suffering and risk of death that may result outweigh whatever
been contravened
benefit (and none has been demonstrated to us here) there may be to the system as
- The CJ and Major J principally relied on Morgantaler, which was in the
a whole.
criminal law context, far removed from the debate over a two tiered health system
Binnie and Lebel JJ (Dissenting):
Charter Analysis
- Unable to agree with our four colleagues
-
What are constitutionally required "reasonable health services"? What is
A.
Life, liberty and security of person
treatment "within a reasonable time"? What are the benchmarks? How short a
- The real control over the scope and operation of s. 7 is to be found in the
waiting list is short enough? How many MRIs does the Constitution require? The
requirement that the applicant identify a violation of a principle of fundamental
majority does not tell us. The majority lays down no manageable constitutional
justice. The further a challenged state action lies from the traditional
standard
adjudicative context, the more difficult it will be for a claimant to make that
- The evidence certainly established that the public health care system put in
essential link
place to implement this policy has serious and persistent problems. This does
- Which s 7 interests are engaged? We accept finding that at least in some cases
not mean that the courts are well placed to perform the required surgery
the prohibition will put at risk the life or security of the person. We do not agree
- The courts can use s. 7 of the Canadian Charter to pre-empt the ongoing public
with the appellants, however, that the Quebec Health Plan puts the “liberty” of
debate only if the current health plan violates an established “principle of
Quebeckers at risk. This is not to say that every encounter with a waiting list will
fundamental justice”. Our colleagues McLachlin C.J. and Major J. argue that
trigger the application of s. 7. The interference with one’s mental well-being
Quebec’s enforcement of a single-tier health plan meets this legal test because it
must not be trivial
is “arbitrary”. In our view, with respect, the prohibition against private
health insurance is a rational consequence of Quebec’s commitment to the
goals and objectives of the Canada Health Act.
B.
Principles of fundamental justice
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- For a principle to be one of fundamental justice, it must count among the
interest and the prohibition against the relevant conduct? (3) Have the
basic tenets of our legal system: Re B.C. Motor Vehicle Act.
appellants established that the prohibition bears no relation to the state
-
interest?
The formal requirements for a principle of fundamental justice are
threefold: (1) It must be a legal principle; (2) The reasonable person must regard
- We agree with the conclusion of the trial judge and the Quebec Court of Appeal
it as vital to our societal notion of justice, which implies societal consensus; (3) It
that in light of the legislative objectives of the Canada Health Act it is not
must be capable of being identified with precision and applied in a manner that
“arbitrary” for Quebec to discourage the growth of private sector health care.
But, the aim of “health care of a reasonable
Prohibition of private health insurance is directly related to Quebec’s interest in
standard within a reasonable time” is not a legal principle. There is no
promoting a need-based system and in ensuring its viability and efficiency.
“societal consensus” about what it means or how to achieve it. It cannot be
Prohibition of private insurance is not “inconsistent” with the state interest; still
“identified with precision”. Finally, it’s difficult to predict when provisions will
less is it “unrelated” to it
be “reasonable” or “unreasonable” when implementing a health plan
COMMENT: Note these points:
yields predictable results.
- Further, Chief Justice and Major J take view that a law which arbitrarily

violates life/security is unconstitutional, which we agree is a principal of fund
justice, but we disagree how it applies to this case
This case doesn’t decide anything outside the province of Quebec. The
only majority we have is on the Quebec Charter

One thing on which Court agreed was that security of person and right
- Appellants have not established that the prohibition bears no relation to, or is
to life had been violated due to prolonged wait times. This was accepted
inconsistent with the state interest.
by all judgments, including lower level courts, was that these were
Discourage growth of private sector,
which is not arbitrary, b/c it is directly related to Qbc’s interest in promoting
a need-based system and ensuring its viability/efficiency.
violated.

No majority on analysis of the violation of principles of fundamental
- Inconsistent” means that the law logically contradicts its objectives
justice: (1) Deschamps J analysis of the equivalent provision which deals
- We note that our colleagues refer to the evidence before the trial judge rather
with security of person and right to life does not have a fundamental
than the view taken of that evidence by the trial judge. The trial judge reached a
justice principle requirement; (2) McLachlin CJ and Major J held violation
contrary conclusion on the facts, and deference is due to her view of that evidence
(3) Binnie and LeBel JJ held no
- Approach the arbitrariness issue in 3 steps: (1) What is the state interest
sought to be protected?; (2) What is the relationship between the state

McLachlin CJ and Major JJ: The basis for the violation was that the
there was no connection b/w the legislative provision and the purported
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
objective of improving the quality of public health service. In coming to

Second, b/c broad questions of public policy/lots of
this conclusion, they analysed evidence from other countries and
evidence published/lots contested, the SCC may have been
jurisdictions to show that there is no real connection between prohibition
justified in sifting through it. Of course, there might be a
of health insurance and the goal of public health system
worry about picking and choosing evidence which fits their
Criticisms?
intended argument, however.

o McLachlin and Major conclude from evidence from other
Third, if you consider we the rationale for giving deference
jurisdictions that it may not be necessary to prohibit private
to TJ on findings of fact, it is the process of being able to
insurance in order to ensure effectiveness of the public. But they
test evidence.
say that there is “no real connection”, or that the connection is
evidence was testable by comparing/contrasting it to
“arbitrary”.
evidence available to the judges.
Is it enough to say that this means that its
arbitrary (no connection) (ie.. just b/c not essential, does it

But maybe this type of social-scientific
Some of the findings the SCC relied on there was no evidence for, e.g.,
follow that it’s arbitrary?)
no evidence to rely on to justify the conclusion that the infringement of the
o Dealing with findings of fact:
right to life, liberty and security results from public system having longer

Appellate courts are normally expected to dealt with
wait times.
In fact, where jurisdictions that permit private insurance
findings of fact on the basis that they are not to be
(duplicate model), evidence suggests that weight times are just as bad.
contested unless there is an overriding and palpable error.

Here, they contested findings of fact of the TJ, but there is
Charkaoui v Canada (Minister of Citizenship and Immigration)
no analysis of this test.
FACTS: C applied for a stay of proceedings relating to the security certificate
One possible justification for doing so is that this is a
issued against him under s 77 of the Immigration and Refugee Protection Act. He
unique, Charter cases which has potential for impacting
alleged that the government breached a duty to disclose info in its possession in a
lives of many Canadians.
timely way.
Maybe we should deal w/
The process of this is that the Minister has the ability to sign a
findings of fact in this type of case differently than in a
certificate declaring that a foreign national/permanent resident is inadmissible to
typical criminal/civil matter.
enter or remain in Canada on grounds of necessity, then a judge determines
whether this is reasonable. The certificate and the detention are both subject to
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review by a judge, in a process that may deprive the person named in the
interests conforms to the principles of fundamental justice — the basic
certificate of some or all of the information on the basis of which the certificate
principles that underlie our notions of justice and fair process.
was issued or the detention ordered
- These principles include a guarantee of procedural fairness, having regard
ISSUE:
to the circumstances and consequences of the intrusion on life, liberty or
Whether the solution that Parliament has enacted conforms to the
Constitution, and in particular the guarantees in the Canadian Charter of Rights
security
and Freedoms that protect against unjustifiable intrusions on liberty, equality and
- Section 7 of the Charter requires not a particular type of process, but a fair
the freedom from arbitrary detention and from cruel and unusual treatment
process having regard to the nature of the proceedings and the interests at stake:
REASONING:
United States of America v. Ferras.
1. Does the procedure under the IRPA for determining the reasonableness of the
fundamentally unfair to the affected person.
certificate infringe s. 7 of the Charter, and if so, is the infringement justified
- In the instant case, the context is the detention; it is a context that may have
under s. 1 of the Charter?
important, indeed chilling, consequences for the detainee. As this Court stated in
The issue is whether the process is
Suresh, “[t]he greater the effect on the life of the individual by the decision,
(a) Is s 7 of the Charter engaged and violated?
the greater the need for procedural protections to meet the requirements of
- The provisions at issue, found at Division 9 of Part 1 of the IRPA, clearly
fundamental justice under s. 7 of the Charter”. Thus, “factual situations which
deprive detainees such as the appellants of their LIBERTY, because the
are closer or analogous to criminal proceedings will merit greater vigilance by the
person named in a certificate can face detention pending the outcome of the
courts
proceedings.
- The overarching principle of fundamental justice that applies here is this:
- The detainee’s SECURITY may be further affected in various ways. The
before the state can detain people for significant periods of time, it must
certificate process may lead to removal from Canada, to a place where his or her
accord them a fair judicial process. This basic principle has a number of
life or freedom would be threatened
facets. It comprises the right to a hearing. It requires that the hearing be before an
- The individual interests at stake suggest that s. 7 of the Charter, the purpose of
independent and impartial magistrate. It demands a decision by the magistrate
which is to protect the life, liberty and security of the person, is engaged, and this
on the facts and the law. And it entails the right to know the case put against one,
leads directly to the question whether the IRPA’s impingement on these
and the right to answer that case. Precisely how these requirements are met will
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vary with the context. But for s. 7 to be satisfied, each of them must be met in
get all the relevant evidence, may be obliged — perhaps unknowingly — to make
substance.
the required decision based on only part of the relevant evidence. The result is
- Is the judge independent and impartial? The circumstances may give rise to
that, at the end of the day, one cannot be sure that the judge has been exposed to
a perception that the designated judge under the IRPA may not be entirely
the whole factual picture.
independent and impartial as between the state and the person named in the
- Is the “case to meet” principle satisfied?
certificate (e.g. When reviewing the certificate, the judge sees all the material
requires that the affected person be informed of the case against him or her, and
relied on by the government. But if the government claims confidentiality for
be permitted to respond to that case. Under the IRPA’s certificate scheme, the
certain material, the judge cannot share this material with the named person).
named person may be deprived of access to some or all of the information
Three related concerns arise with respect to independence and impartiality. First
put against him or her, which would deny the person the ability to know the
is the concern that the IRPA may be perceived to deprive the judge of his or her
case to meet. Without this information, the named person may not be in a
independent judicial role and co-opt the judge as an agent of the executive branch
position to contradict errors, identify omissions, challenge the credibility of
of government. Second is the concern that the designated judge functions as an
informants or refute false allegations. In some contexts, substitutes for full
investigative officer rather than a judge (this would violate PoFJ). Third is the
disclosure may permit compliance with s. 7 of the Charter. BUT in the
concern that the judge, whose role includes compensating for the fact that the
context of national security, non-disclosure, which may be extensive, coupled
named person may not have access to material and may not be present at the
with the grave intrusions on liberty imposed on a detainee, makes it difficult,
hearing, will become associated with this person’s case. I conclude that, on its
if not impossible, to find substitute procedures that will satisfy s. 7.
face, the IRPA process is designed to preserve the independence and impartiality
Fundamental justice requires substantial compliance with the venerated
of the designated judge, as required by s. 7.
principle that a person whose liberty is in jeopardy must be given an
- Is the decision based on the facts and the law?
To comply with s. 7 of the
Last but not least, a fair hearing
opportunity to know the case to meet, and an opportunity to meet the case.
Charter, the magistrate must make a decision based on the facts and the law. The
This principle has NOT been satisfied.
IRPA process at issue seeks to meet this requirement by placing material before
- Therefore, IRPA’s procedure for determining whether a certificate is reasonable
the judge for evaluation. But the named person is not given the disclosure and the
does not conform to the principles of fundamental justice as embodied in s. 7 of
right to participate in the proceedings that characterize the adversarial process.
the Charter.
The result is a concern that the designated judge, despite his or her best efforts to
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(b) Is the limit justified under s 1?
- The Charter does not guarantee rights absolutely. The state is permitted to limit
Of course, Parliament is not required to use the perfect, or least
restrictive, alternative to achieve its
rights — including the s. 7 guarantee of life, liberty and security — if it can
establish that the limits are demonstrably justifiable in a free and democratic
objective: R. v. Chaulk. However, bearing in mind the deference that is
owed to Parliament in its legislative
society
choices, the alternatives discussed demonstrate that the IRPA does not
- Violations of s. 7 are not easily saved by s. 1 (Re BC Motor Vehicle Act).
minimally impair the named person’s
rights.
Violations of the principles of fundamental justice, specifically the right to a
fair hearing, are difficult to justify under s. 1
- Nonetheless, apply the Oakes test:
2.
(a) Pressing and substantial objective? The protection of Canada’s national
IRPA Infringe Section 7?
security and related intelligence sources undoubtedly constitutes a pressing and
-
substantial objective
considerations, since the indefiniteness of detention, as well as the psychological
(b) Proportionality assessment:
stress it may cause, is related to the mechanisms available to the detainee to
(i)
Rational connection? Moreover, the IRPA’s provisions regarding the
non-disclosure of evidence at certificate
hearings are rationally connected to this objective
(ii) Minimum impairment? i.e. Is a certificate procedure leading to detention
and deportation of non-citizens on the
ground that they pose a threat to Canada’s security, minimal impairment
to the rights of non citizens? There are
other methods Parliament could have chosen to protect security that are
less intrusive (e.g. special counsel,
which would better protect detained individuals’ interests; and a current
example is the Canada Evidence Act).
Does the Detention of Permanent Residents or Foreign Nationals Under the
The s. 12 issue of cruel and unusual treatment is intertwined with s. 7
regain liberty. Detention itself is never pleasant, but it is only cruel and unusual
in the legal sense if it violates accepted norms of treatment
-
Denying the means required by the principles of fundamental justice to
challenge a detention may render the detention arbitrarily indefinite and support
the argument that it is cruel or unusual
-
It is clear that while the IRPA in principle imposes detention only pending
deportation, it may in fact permit lengthy and indeterminate detention or lengthy
periods subject to onerous release conditions. The next question is whether this
violates s. 7 or s. 12 based on the applicable legal principles.
- I conclude that the s. 7 principles of fundamental justice and the s. 12
guarantee of freedom from cruel and unusual treatment require that, where
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a person is detained or is subject to onerous conditions of release for an
- s.15 (1): “ Every individual is equal before and under the law, has the right to
extended period under immigration law, the detention or the conditions must
equal protection and equal benefit of the law without discrimination, and in
be accompanied by a meaningful process of ongoing review that takes into
particular, without discrimination based on race, national or ethnic origin,
account the context and circumstances of the individual case.
colour, religion, sex, age or mental or physical disability (these are enumerated
-
grounds)
I conclude that extended periods of detention under the certificate
provisions of the IRPA do not violate ss. 7 and 12 of the Charter if
15 (2): “Subsection (1) does not preclude any law, program or activity that
accompanied by a process that provides regular opportunities for review of
has as its object the amelioration of conditions of disadvantaged individuals or
detention, taking into account all relevant factors, including the following:
groups including those that are disadvantaged because of race, national or ethnic
(a) the reason for detention; (b) the length of time in detention; (c) whether
origin, colour, religion, sex, age or mental or physical disability.
there are any elements that can assist in determining the length of time that
- Equality in s 15 is expressed in four different ways: (1) equality before the law
detention is likely to continue and, if so, that length of time; (d) any
(2) equality under the law (3) equal protection of the law and (4) equal benefit of
unexplained delays or unexplained lack of diligence caused by the
the law.
Department or the person concerned; and (e) the existence of alternatives to
detention [Each factor will either weigh in favour of or against release]
Equality
- Do the provisions for review of detention under the IRPA’s certificate scheme
 Four equalities of s 15
satisfy these requirements? The IRPA, interpreted in conformity with the
- The reason for having 4 formulations of the idea of equality was to reverse the
Charter, permits robust ongoing judicial review of the continued need for and
restrictive interpretations placed by the SCC on the phrase “equality before the
justice of the detainee’s detention pending deportation. On this basis, I conclude
law” which is in the Bill of Rights
that extended periods of detention pending deportation under the certificate
provisions of the IRPA do not violate s. 7 or s. 12 of the Charter
 Similarly situated test
- This was an old test used, but it is deficient and no longer used
[9] EQUALITY: s 15
 Formal and substantive equality
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- Formal equality merely prohibits direct discrimination (which is insufficient),
- The burden then shifts to the government to justify the discrimination under s 1
while substantive equality prohibits both direct and indirect discrimination
- Remember, the conclusion drawn on a s 15 analysis is whether or not there
is DISCRIMINATION.
 Discrimination
- Early application of s 15 resulted in an overload of cases being brought to the
court challenging on equality ground
Elements of s 15 (Andrews; Law)
- Then came the Andrews case, which started to develop rules to control the
floodgates.
-
(1)
The SCC held that s 15 was a prohibition of “discrimination”, and that
discrimination could only be based on a ground that was listed in s 15 or that was
DISADVANTAGEOUS
DISTINCTION:
does the challenged law
impose (directly/indirectly) a disadvantage on the claimant (in the form of a
burden or benefit withheld) in comparison to other comparable persons?
analogous to those listed in the section
- So it is now clear that s 15 prohibits only those violations of equality that
 Selection of comparator group (step 1)
amount to discrimination. Discrimination is the operative concept, and the SCC
- Find the group that shares with the claimant all the characteristics that qualify
has settled that the following amounts to discrimination:
for the benefit (or burden), except for a personal characteristic that is listed in or
analogous to those listed in s 15
(1)
The challenged law imposed (directly or indirectly) on the
- The definition of the comparator group is critical to the outcome of s 15 cases.
claimant a disadvantage (in the form of a burden or withheld benefit)
- E.g. in Andrews, the comparative group was citizen lawyers (vs non-citizen
in comparison to other comparable persons; (Andrews); AND
lawyers)
(2) The disadvantage is based on a ground listed in or analogous to a
ground listed in s 15; (Andrews) AND
 Requirement of disadvantage (step 2)
(3) The disadvantage is imposed in a way that impairs human dignity
- Once the appropriate comparator group has been selected, it is necessary to
(Law v Canada)
compare the treatment provided by the law to the claimant with the treatment
- A claimant who persuades the Court of these 3 elements is entitled to a finding
provided to the comparator group. Only if the law treats the claimant less
of discrimination, which means that the challenged law is in breach of s 15.
favourably, whether by withholding a benefit that is granted to the
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comparator group, or by imposing a burden that is not applicable to the
- The requirement that the discrimination be in relation to a listed or analogous
comparator group, is the claim of disadvantage or unequal treatment made
ground was stated in Andrews
out
- Listed grounds include: race, national or ethnic origin, colour, religion, sex,
- Any disadvantage imposed on the claimant group must be netted out (or
age or mental or physical disability
considered together with) any advantage granted to the claimant group; is the
- Analogous grounds include:
disadvantaged netted out by the advantage? (Thibaudeau)
(i) Citizenship (Andrews);
- How do you measure disadvantage? Some cases have involved a subjective
(ii) Marital status (Nova Scotia v Walsh) [These two analogous grounds
analysis (from the claimant’s standpoint), and others have involved an objective
can be considered “soft” analogous grounds, because each can be chosen
(from
by an individual, although that choice is sometimes blocked by legal
the
court’s
standpoint)
analysis.
Hogg,
relying
on
Can Foundation for Children case, suggests that the assessment is to take place
requirements;
from the perspective of a reasonable person (objective), but one who shares
(iii) Sexual orientation (Egan v Canada) [So far, these are the only
attributes and circumstances of the claimant (subjective) – so a modified
analogous grounds to be recognized]
objective test.
(iv) Off reserve status Indians (Corbiere)
 Group disadvantage
-
- Being part of a disadvantaged group is not a prerequisite to finding
occupation (Re Workers Comp); persons charged w/ war crimes (Finta); persons
discrimination, although it is an indication of an analogous group (Miron v
bringing claim against Crown (Rudolph)
Trudel; Egan v Canada)
- The limitation of s 15 to listed and analogous grounds restricts judicial review
- And it is relevant to the human dignity analysis (Law v Canada)
to laws that distinguish between individuals on the basis of their inherent (or
The following are NOT analogous grounds: place of residence (Turpin);
immutable) attributes as opposed to their behaviour (which are not subject to
(2) ENUMERATED OR ANALOGOUS GROUNDS: The distinction is on
change except at significant cost) (Corbiere v Can.) An analogous ground is
the basis of a listed or analogous ground
based on “a personal characteristic that is immutable or changeable only at
- Note that, in (1) above, you will have to mention this ground, so (1) and (2) are
unacceptable cost to personal identity
not necessarily strictly separate stages
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(3)
employment than older spouses)
DISADVANTAGE AND HUMAN DIGNITY: Does the disadvantage
impair claimant’s human dignity
- There are 4 contextual factors used to determine whether or not human dignity
is impaired by a law that imposes a disadvantage on the basis of a listed or
(3) The existence of ameliorative purposes or effects on other groups:
This factor is more relevant where
analogous ground.
- The correspondence factor has become the KEY to the impairment of human
the s. 15(1) claim is brought by a more advantaged member of society
(e.g. in Law, the SCC held that
dignity
a factor supporting the view that the impugned CPP provisions do
- Law v Canada identifies 4 contextual factors to analyse when determining
not violate essential human dignity is
whether there was an impairment of human dignity:
the clear ameliorative purpose of the pension scheme for older
surviving spouses. Older surviving
(1) The existence of pre-existing disadvantage, stereotyping, prejudice or
vulnerability: If the law promotes
spouses, like surviving spouses who are disabled or who care for
dependent children, are more
stereotype, then this indicates a s 15 infringement
economically vulnerable to the long-term effects of the death of a
spouse)
(2)
The correspondence between the distinction and the claimant’s
characteristics or circumstances
(sometimes legislation must make distinctions in order to account
for personal characteristics (i.e.,
Eldridge and disability benefits re: health care) (e.g. In Law, the
i. An ameliorative pupose will likely not violate the dignity of
more advantaged individuals that are excluded from the law's
scope where the purpose accords with the purpose of section
15(1) itself and corresponds to the needs and circumstances of
the disadvantaged group targeted by the legislation.
denial of CPP survivor benefits to
spouses under the age of 35 accurately corresponded to the
circumstances of younger spouses of
deceased income earners, who could be expected to be more
successful in finding and retaining
(4) The nature of the interest affected: The more severe and localized the
consequences on the affected
group, the more likely that the distinction responsible for these
consequences is discriminatory within the
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meaning of s. 15 of the Charter”; evaluate not only the economic but
also the constitutional and societal
- But human dignity analysis is still good law, because obiter remarks of the
SCC are not binding on the SCC)
significance attributed to the interest or interests adversely affected by
the legislation in question.
The law on the listed and analogous grounds
- THE POINT IN THE DIGNITY ANALYSIS IS TO ASK WHETHER from
the perspective of a reasonable person in circumstances similar to those of
Race
the claimant who takes into account the contextual factors relevant to the
- “Race” as well as “national or ethnic origin” and “colour” are grounds of
claim (i.e. APPLY A MODIFIED OBJECTIVE TEST), the legislative
discrimination expressly prohibited by s 15
imposition of differential treatment has the effect of demeaning his or her
- It is difficult to imagine a situation in which a racial distinction could possibly
dignity
be upheld, unless it falls under s 15(2)
- The contextual approach should not be read literally as if they were legislative
- The aboriginal situation in Canada is a special one (see s 25 of Charter and s
dispositions, but as a way of focussing on the central concern of s 15 – combating
91(24) of Constitution Act, 1867)
discrimination
- Note, however, that the SCC in Kapp (obiter) opted to remove the human
Religion
dignity requirement, and replaced it with a “discrimination” requirement, namely
- Religion is another ground expressly prohibited by s 15
the perpetuation of disadvantage or stereotyping.
- The funding of the schools of a religious denomination without comparable
- The 4 factor contextual approach is still relevant:
provision for the supports of the schools of other religious denominations would
(1) Pre existing disadvantage
be forbidden by s 15, unless that denominational school system is protected under
(3) Ameliorative purpose
the special provision of s 93
(4) Nature of interest affected
[The above 3 factors go to perpetuation of disadvantage]
Sex
(2) Correspondence [This factor goes to “stereotyping”]
- Another ground of discrimination that is expressly prohibited
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- R v Hess: The offence of statutory rape did not offend s 15, although the offence
scheme did not imply that they were less capable or less worthy, but simply was
could only be committed by a male, on the basis that since the prohibited act
designed to recognize the reality that older people would be in greater need of
(intercourse) was defined by reference to penetration, so it could as a matter of
support, and to apply limited resources to those in greater need
biological fact be committed only by males [Hogg criticizes this]
- Gosselin v Quebec:
- Brenner v Canada: A provision of the Federal Citizenship Act distinguished
recipients under 30 received benefits of only about 1/3 of the standard amount
between men and women and was struck down under s 15. In regulating the
that was payable to persons 30 or over. Held: while there was a distinction on the
citizenship status of persons born outside Canada before 1977, the Act provided
basis of age, there was no impairment of human dignity.
that a person born to a Canadian father was automatically entitled to citizenship
- See also Wynberg v Ontario (re: program for autistic children cancelled after
upon registration in Canada of the birth, but a person born to a Canadian mother
they turned 6); Canadian Foundation for Children v Canada (re: defence to
had to apply for citizenship and undergo a security check. This law could not be
assault charge to use corrective force on children);
saved under s 1, failing on the rational connection test.
- The SCC also decided a group of mandatory retirement cases, the leading one
- There are a few other examples too
being McKinney v University of Guelph: The mandatory retirement rules imposed
Quebec’s social assistance law provided that welfare
a disadvantage (retirement) on a defined group by its age (65), therefore a breach
Age
of s 15. But justifiable under s 1 [Note: for each of the decisions but one, there
- Another ground of discrimination that is expressly prohibited
was an issue as to applicability of Charter]. But see Tetreault-Gadoury v Canada:
- There are some differences between this ground and the other ones: (i) A
A provision of the Unemployment Insurance Act, which denied benefits to
minority defined by age is much less likely to suffer from the prejudice of the
persons over 65, was in breach of s 15, and could not be justified by s 1. The
majority than is a minority defined by race or religion: we all go through the age
Court distinguished McKinney on 3 grounds (see p 1246)
cycle; (ii) Another difference b/w age and other named characteristics is that there
is some relationship between age and ability
Mental or physical disability
- Law v Canada: The SCC upheld a law that denied a benefit to young persons,
- Mental or physical disability is another of the grounds of discrimination that is
namely those who were under 35 were denied pension plan payments upon death
expressly prohibited by s 15
of surviving spouses. Although there was a distinction on age, there was no
- Although there are legal restrictions properly predicated on mental disability
impairment of human dignity. The exclusion of persons under 35 from the benefit
(e.g. a blind person is disqualified from driving), many disabilities can be
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accommodated by changes to work places and public facilities that permit those
- Citizenship is not a ground of discrimination expressly mentioned in s 15, but it
who are blind, for example, to function effectively. Therefore, the rules that
is an analogous ground (Andrews v Law Society)
discrimination may be unintended, indirect and may require reasonable
accommodation, are of special importance here
Marital status
- In several of the “accommodation” cases (i.e. where an accommodation had
- Marital status is not a ground of discrimination that is expressly mentioned in s
been made to the special needs of a class of persons with disabilities), the
15, but in Miron v Trudel the SCC held it to be an analogous ground.
constitutional challenge to the appropriateness of the accommodation failed,
indicating that deference should be paid to a legislated effort to accommodate
Sexual orientation
such
- It is an analogous ground (Egan v Canada)
needs.
- But this pattern of deference was broken in Nova Scotia v Martin --- But Hogg
disagrees with the approach the Court took in this case – suggests more deference
should had been paid to legislative decision
-
Other things to note
In Nova Scotia v Martin the SCC struck down provisions of a statutory
worker’s comp scheme that dealt w/ chronic pain; it provided a 4 week rehab
period for worker suffering from chronic pain. Held: (i) The restriction on
Direct and indirect discrimination
benefits for chronic pain distinguished between workers with chronic pain and
 Substantive equality
workers with other kinds of work related injuries; (ii) The distinction was based
- A law may be discriminatory on its face or in its effect (the latter being
on physical disability (an expressly prohibited ground), even though members of
substantive equality) (Andrews)
the comparison group were also disabled; (iii) The distinction impaired human
- Indirect discrimination is caused by a law that does not expressly employ any of
dignity of chronic pain suffers, and therefore amounted to discrimination; (iv) It
the categories listed in s 14 (or analogous to those listed), if the law has a
could not be saved by s 1
disproportionately adverse effect on the persons defined by any of the prohibited
categories
Citizenship
- A law may also be discriminatory in its application
 Unintentional discrimination
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- It is immaterial whether discrimination is intentional or not. If it’s effect is
Discrimination permitted by the Constitution
discriminatory, that’s what matters
- There are certain provisions in the Constitution which are discriminatory on
- Thus, discrimination may be indirect AND unintended
some of the grounds listed in s 15. These provisions are not sheltered from
 Reasonable accommodation
Charter attack by reason of their constitutional status
- It is a necessary corollary of the rule that discrimination may be indirect and
unintended that a law may have to make reasonable accommodation for those
Andrew v Law Society of BC
who, by reason of, for example, religious affiliation or disability, are
FACTS:
discriminated against by otherwise neutral laws (see “Mental and physical
differentiates between citizens and non-citizens with respect to admission to the
disability”; very relevant there)
practice of law. The distinction denies admission to non-citizens who are in all other
s. 42 of the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26,
respects qualified.
ISSUE: Does s 42 offend s 15 of the Charter?
Justification under s 1
REASONING:
- Since Law imported the human dignity analysis into s 15, there has only be one
Wilson J (Majority)
case in which s 1 has saved a law found to be in breach of s 15, showing the
 I agree with my colleague that a rule which bars an entire class of persons from
difficulty in upholding a law that infringes equality
certain forms of employment solely on the ground that they are not Canadian
citizens violates the equality rights of that class.
Affirmative action
 Before turning to s 1 analysis, note that relative to citizens, non-citizens are a
- S 15(2) makes it clear that s 15 doesn’t preclude affirmative action or equity
group lacking in political power and as such vulnerable to having their interests
programmes in favour of disadvantages individuals or groups
overlooked and their rights to equal concern and respect violated, and therefore
- This has not been interpreted as an “exception” to s 15(1); rather sub (2) and (1)
concluded that they fall into an analogous group to those enumerated in s 15
are confirmatory of one another; they are independent (see R v Kapp)
 S 1 analysis: There is not a sufficiently rational connection between the
required personal characteristic of citizenship and the governmental interest in
ensuring lawyers in BC are familiar with Canadian institutions, are committed to
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Canadian society, and are capable of playing a role in our system of democratic
date of establishing permanent residence status before citizenship may be acquired.
government
The distinction therefore imposes a burden in the form of some delay on
 Disposition: the law is unconstitutional
permanent residents who have acquired all or some of their legal training abroad
and is, therefore, discriminatory. The rights guaranteed in s. 15(1) apply to all
McIntyre J (Dissenting in part – namely on the s 1 analysis)
persons whether citizens or not
 Consideration must be given to the content of the law, to its purpose, and its
 s 1 analysis:
impact upon those to whom it applies, and also upon those whom it excludes from
(1) Objective: The Act was enacted for a valid and desirable purpose, namely the
its application. The issues which will arise from case to case are such that it would
creation and regulation no the legal profession of the practice of law. It is entirely
be wrong to attempt to confine these considerations within such a fixed and limited
reasonable that legislators consider and adopt measures designed to maintain within
formula.
the legal profession a body of qualified professionals with a commitment to the
 Discrimination is the key in s 15: ask, if there is a distinction, whether
country and to the fulfilment of the important tasks which fall to it. The Legislature
intentional or not but based on grounds relating to personal characteristics of the
in fixing public policy has chosen the citizenship requirement and, unless the Court
individual or group, which has the effect of imposing burdens, obligations, or
can find that choice unreasonable, it has no power under the Charter to strike it
disadvantages on such individual or group not imposed upon others, or which
down or, as has been said, no power to invade the legislative field and substitute its
withholds or limits access to opportunities, benefits, and advantages available to
views for that of the Legislature.
other members of society. And, if so, that distinction must be discriminatory.
(2) Proportionality assessment:
 s 15 analysis: It would seem to me apparent that a legislative distinction has
(a) Etc [Not important]
been made by s. 42 of the Barristers and Solicitors Act between citizens and non-
HELD: Majority held that law was unconstitutional
citizens with respect to the practice of law. The distinction would deny admission
to the practice of law to non-citizens who in all other respects are qualified. Have
Law v Canada (Leading case on s 15)
the respondents, because of s. 42 of the Act, been denied equality before and under
FACTS: This appeal concerns the constitutionality of ss. 44(1)(d) and 58 of the
the law or the equal protection of the law? In practical terms it should be noted that
Canada Pension Plan, R.S.C., 1985, c. C-8, which draw distinctions on the basis
the citizenship requirement affects only those non-citizens who are permanent
of age with regard to entitlement to survivor's pensions. The Canada Pension
residents. The permanent resident must wait for a minimum of three years from the
Plan (the “CPP”) is a compulsory social insurance scheme which was enacted in
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1965 in order to provide contributors and their families with reasonable minimum
which otherwise has the effect of perpetuating or promoting the view that the
levels of income upon the retirement, disability or death of the wage earner.
individual is less capable or worthy of recognition or value as a human being
Among the benefits available under the CPP is the survivor’s pension. This
or as a member of Canadian society, equally deserving of concern, respect,
monthly benefit is paid to a surviving spouse whose deceased partner has made
and consideration?
sufficient contributions to the CPP, and who meets the eligibility criteria specified
- The determination of whether legislation fails to take into account existing
in s. 44(1)(d), namely, an age threshold
disadvantage, or whether a claimant falls within one or more of the enumerated
ISSUE:
Whether the provisions infringe s. 15(1) of the Canadian Charter of
and analogous grounds, or whether differential treatment may be said to constitute
Rights and Freedoms on the ground that they discriminate against persons under
discrimination within the meaning of s. 15(1), must all be undertaken in a
the age of 45 on the basis of age and, if so, whether the infringement is justified
purposive and contextual manner
under s. 1 of the Chart
- What is the purpose of the s. 15(1) equality guarantee? The purpose of s.
REASONING:
15(1) is to prevent the violation of essential human dignity and freedom through
Approach to s 15(1)
the imposition of disadvantage, stereotyping, or political or social prejudice, and
(1)
Does the impugned law (a) draw a formal distinction between the
to promote a society in which all persons enjoy equal recognition at law as human
claimant and others on the basis of one or more personal characteristics, or
beings or as members of Canadian society, equally capable and equally deserving
(b) fail to take into account the claimant’s already disadvantaged position
of concern, respect and consideration. This purposes drives the s 15 analysis
within Canadian society resulting in substantively differential treatment
Human dignity
between the claimant and others on the basis of one or more personal
- Legislation which effects differential treatment between individuals or groups
characteristics? If so, there is differential treatment for the purpose of s.
will violate this fundamental purpose where those who are subject to differential
15(1).
treatment fall within one or more enumerated or analogous grounds, and where
(2) Was the claimant subject to differential treatment on the basis of one or
the differential treatment reflects the stereotypical application of presumed
more of the enumerated and analogous grounds?
group or personal characteristics, or otherwise has the effect of perpetuating
(3) Does the differential treatment discriminate, by imposing a burden upon
or promoting the view that the individual is less capable, or less worthy of
or withholding a benefit from the claimant in a manner which reflects the
recognition or value as a human being or as a member of Canadian society.
stereotypical application of presumed group or personal characteristics, or
Alternatively, differential treatment will not likely constitute discrimination
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within the purpose of s. 15(1) where it does not violate the human dignity or
disadvantaged group or groups is not per se determinative of an infringement, the
freedom of a person or group in this way, and in particular where the
existence of these pre-existing factors will favour a finding that s. 15(1) has
differential treatment also assists in ameliorating the position of the
been infringed.
disadvantaged within Canadian society.
(b)
- What is human dignity? Human dignity means that an individual or group
characteristics/circumstances:
feels self-respect and self-worth.
It is concerned with physical and
legislation takes into account the claimant’s traits or circumstances will not
psychological integrity and empowerment. Dignity is harmed when individuals
necessarily be sufficient to defeat a s. 15(1) claim, it will generally be more
and groups are marginalized, ignored, or devalued, and is enhanced when laws
difficult to establish discrimination to the extent that the law takes into
recognize the full place of all individuals and groups within Canadian society
account the claimant’s actual situation in a manner that respects his or her
[Note this is not to be used as a definition of human dignity – see 4 contextual
value as a human being or member of Canadian society, and less difficult to
factors below]
do so where the law fails to take into account the claimant’s actual situation.
- Four indicia to determine whether demeaning of dignity has occurred
(c) Ameliorative purpose or effects:
(a) Pre-existing disadvantage: As has been consistently recognized throughout
be the ameliorative purpose or effects of impugned legislation or other state action
this Court’s jurisprudence, probably the most compelling factor favouring a
upon a more disadvantaged person or group in society. An ameliorative purpose
conclusion that differential treatment imposed by legislation is truly
or effect which accords with the purpose of s. 15(1) of the Charter will likely not
discriminatory will be, where it exists, pre-existing disadvantage, vulnerability,
violate the human dignity of more advantaged individuals where the exclusion of
stereotyping, or prejudice experienced by the individual or group (i.e. existing
these more advantaged individuals largely corresponds to the greater need or the
vulnerability). One consideration which the Court has frequently referred to with
different circumstances experienced by the disadvantaged group being targeted by
respect to the issue of pre-existing disadvantage is the role of stereotypes. If law
the legislation. This factor is more relevant where the s. 15(1) claim is brought
promotes stereotype, then this will lead to infringement. So, the effects of a
by a more advantaged member of society.
law as they relate to the important purpose of s. 15(1) in protecting
(d)
individuals or groups who are vulnerable, disadvantaged, or members of
consequences on the affected group, the more likely that the distinction
“discrete and insular minorities” should always be a central consideration.
responsible for these consequences is discriminatory within the meaning of s. 15
Although the claimant’s association with a historically more advantaged or
of the Charter”; evaluate not only the economic but also the constitutional and
Relationship
b/w
grounds
and
the
claimant’s
Although the mere fact that the impugned
Nature of the interest affected:
Another possibly important factor will
the more severe and localized the
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societal significance attributed to the interest or interests adversely affected by the
(3) Discrimination: The central question in the present case is whether the
legislation in question.
age distinctions drawn by ss. 44(1)(d) and 58 of the CPP impose a
[NOTE:
disadvantage upon the appellant as a younger adult in a manner which
THE POINT IN THE DIGNITY ANALYSIS IS TO ASK
WHETHER from the perspective of a reasonable person in circumstances
constitutes discrimination under s. 15(1) of the Charter.
similar to those of the claimant who takes into account the contextual factors
Relatively speaking, adults under the age of 45 have not been consistently and
relevant to the claim (i.e. APPLY A MODIFIED OBJECTIVE TEST), the
routinely subjected to the sorts of discrimination faced by some of Canada’s
legislative imposition of differential treatment has the effect of demeaning his
discrete and insular minorities. For this reason, it will be more difficult as a
or her dignity]
practical matter for this Court to reason, from facts of which the Court may
Application to the case
appropriately take judicial notice, that the legislative distinction at issue
(1) Differential treatment: The CPP grants benefits to surviving spouses over
violates the human dignity of the appellant.
the age of 35 immediately following the death of the contributor. However, these
The appellant has not established that either the purpose or effect of the
benefits are not available to able-bodied spouses without dependent children who
impugned legislative provisions violates her human dignity. The purpose and
are less than 35 years of age at the time of the death of the contributor, until they
function of the impugned CPP provisions is not to remedy the immediate financial
reach age 65 or unless they should become disabled in the interim.
Clear
need experienced by widows and widowers, but rather to enable older widows
distinction made on AGE. Thus, a denial of equal benefit of the law, given the
and widowers to meet their basic needs during the longer term. Young persons
delay in the receipt of the benefits and the reduced entitlement to benefits
experience fewer impediments to long-term labour force participation and are
(2) Distinction on the basis of an enumerated/analogous ground:
In my
generally in a better position than older persons to replace independently over the
view, the survivor’s pension provisions of the CPP clearly draw distinctions
long run as a working member of Canadian society the income of a deceased
on the basis of the enumerated ground of age. Had the appellant been able-
spouse.
bodied, without dependent children, and over age 45 at the time of her spouse's
The law on its face treats such younger people differently, but the
death, she would have been immediately entitled to receive full benefits.
differential treatment does not reflect or promote the notion that they are
However, as an able-bodied, childless woman who was 30 years of age at the time
less capable or less deserving of concern, respect, and consideration, when
of her spouse's death, she is denied any benefits until she reaches age 65, provided
the dual perspectives of long-term security and the greater opportunity of
she does not subsequently become disabled.
youth are considered
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Another factor supporting the view that the impugned CPP provisions do not
the Charter preserves the right of governments to implement such programs,
violate essential human dignity is the clear ameliorative purpose of the pension
without fear of challenge under s. 15(1).
scheme for older surviving spouses. Older surviving spouses, like surviving
- The achievement of Law was its success in unifying what had become, since
spouses who are disabled or who care for dependent children, are more
Andrews, a division in this Court’s approach to s. 15. Law accomplished this by
economically vulnerable to the long-term effects of the death of a spouse
reiterating and confirming Andrews’ interpretation of s. 15 as a guarantee of
HELD: Appeal dismissed
substantive, and not just formal, equality.
- At the same time, several difficulties have arisen from the attempt in Law to
employ human dignity as a legal test
R v Kapp
- As critics have pointed out, human dignity is an abstract and subjective notion
FACTS: The appellants are commercial fishers, mainly non-aboriginal, who
that, even with the guidance of the four contextual factors, cannot only become
assert that their equality rights under s. 15 of the Canadian Charter of Rights and
confusing and difficult to apply; it has also proven to be an additional burden on
Freedoms were violated by a communal fishing licence granting members of
equality claimants, rather than the philosophical enhancement it was intended to
three aboriginal bands the exclusive right to fish for salmon. The essence of the
be
claim is that the communal fishing licence discriminated against them on the basis
- The analysis in a particular case, as Law itself recognizes, more usefully focuses
of race.
on the factors that identify impact amounting to discrimination. The four factors
ISSUE:
These contentions, taken together, raise the issue of the interplay
cited in Law are based on and relate to the identification in Andrews of
between s. 15(1) and s. 15(2) of the Charter. Specifically, they require this Court
perpetuation of disadvantage and stereotyping as the primary indicators
to consider whether s. 15(2) is capable of operating independently of s. 15(1) to
of discrimination.
protect ameliorative programs from claims of discrimination — a possibility left
-
open in this Court’s equality jurisprudence
for discrimination, but rather affirms the approach to substantive equality under s.
REASONING:
15 set out in Andrews and developed in numerous subsequent decisions
Background of s 15
- The central purpose of combating discrimination, as discussed, underlies both s.
- Governments may wish to combat discrimination by developing programs
15(1) and s. 15(2). Under s. 15(1), the focus is on preventing governments from
aimed at helping disadvantaged groups improve their situation. Through s. 15(2),
making distinctions based on the enumerated or analogous grounds that: have the
Viewed in this way, Law does not impose a new and distinctive test
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effect of perpetuating group disadvantage and prejudice; or impose disadvantage
(1) the program has an ameliorative or remedial purpose; and
on the basis of stereotyping. Under s. 15(2), the focus is on enabling governments
(2) the program targets a disadvantaged group identified by the
to pro-actively combat existing discrimination through affirmative measures.
enumerated or analogous grounds.
Analysis of s 15(2)
- There are 3 key phrases to s 15(2):
- The question that arises is whether the program that targeted the aboriginal
(a) “Has as its object”: The language of s. 15(2) suggests that legislative goal
bands falls under s. 15(2) in the sense that it is a “law, program or activity that has
rather than actual effect is the paramount consideration in determining whether or
as its object the amelioration of conditions of disadvantaged individuals or
not a program qualifies for s. 15(2) protection; where a law, program or activity
groups”.
creates a distinction based on an enumerated or analogous ground, was the
- As noted, the communal fishing licence authorizing the three bands to fish for
government’s goal in creating that distinction to improve the conditions of a
sale on August 19-20 was issued pursuant to an enabling statute and regulations
group that is disadvantaged? And note that the ameliorative purpose need not be
— namely the ACFLR. This qualifies as a “law, program or activity” within the
the sole purpose of the Act
meaning of s. 15(2)
(b) “Amelioration”: Section 15(2) protects programs that aim to “ameliorate” the
- The focus of s. 15(1) is on preventing governments from making distinctions
condition of disadvantaged groups identified by the enumerated or analogous
based on enumerated or analogous grounds that have the effect of perpetuating
grounds
disadvantage or prejudice or imposing disadvantage on the basis of stereotyping.
(c) “Disadvantaged”:
The focus of s. 15(2) is on enabling governments to pro-actively combat
prejudice and negative social characterization
discrimination. Read thus, the two sections are confirmatory of each other
Application of s 15(2) to this case
- But this confirmatory purpose does not preclude an independent role for s.
- Onus on government to show that the program is protected by s 15(2)
15(2). Section 15(2) is more than a hortatory admonition. It tells us, in simple
- First question is whether the program that excluded Mr. Kapp and other non-
clear language, that s. 15(1) cannot be read in a way that finds an ameliorative
band fishers from the fishery had an ameliorative or remedial purpose. The
program aimed at combating disadvantage to be discriminatory and in breach of s.
government was hoping to redress the social and economic disadvantage of the
15.
targeted bands, so yes.
- The TEST under s 15(2) is as follows: A program does not violate the s. 15
equality guarantee if the government can demonstrate that:
“Disadvantage” under s. 15 connotes vulnerability,
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- Second, the government’s aims correlate to the actual economic and social
- At stage one, person who alleges Charter breach has burden; at stage two (s 1
disadvantage suffered by members of the three aboriginal bands. The
analysis), the burden shifts to the government or another defending party
disadvantage of aboriginal people is indisputable.
- The standard of proof is on a BoP
- Therefore, the government program is protected by s 15(2).
- It follows that the program does not violate the equality guarantee of s. 15 of the
Presumption of constitutionality
Charter.
- No presumption of constitutionality (although the reading down principle of
HELD: Appeal dismissed
interpretation applies)
COMMENT:
(i) S 15 (2) put in the Charter to allow affirmative action
programs; (ii) S15 (2) enables (allows) gov to make unequal laws in order to
Limits
combat discrimination; (iii) A vehicle for gov to validly discriminate to
-There is one decision of the SCC that holds that not every Charter infringement
ameliorate (improve) the disadvantage of certain groups; (iv) So if gov can bring
is a “limit”, and any infringement that is more than a limit cannot be justified
itself under s 15 ( 2) then no violation of s 15 (1); (v) 15 (2) trumps 15 (1). It
under s 1
doesn’t violate it; (vi) You need to start with an unequal treatment. You need that
distinction first: (a) First , a claimant will claim discrimination based on s 15 (1)
The Oakes test
of the legislation in the question based on an enumerated or analogous grounds
- There are 4 aspects to it
and (b) Second, the GOV will try to justify the legislation UNDER s 15 (2)
(1) Sufficiently important objective
(2) Rational connection
(3) Least drastic means
(4) Proportionate effect
- The s 1 inquiry almost always turns on the answer to (3) (i.e. minimum
impairment)
[10 ]
LIMITATION OF RIGHTS: R v Oakes
-
Note that before going through the Oakes test, ask whether the limit is
“prescribed by law” (if an act is not legally authorized, it can never be justified
Burden of proof
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under s 1, no matter how reasonable or demonstrably justified it may appear to
- The objective, once stating it, must be said to be “sufficiently important”
be)
- First, it must be consistent with the values of a free and democratic society
- Second, the objective must relate to concerns which are “pressing and
PART 1: Sufficiently important objective
substantial”
Determining the objective
- Third, the objective must be directed to “the realization of collective goals of
- Not easy to determine the objective
fundamental importance”
- It can be expressed at various levels of generality (the higher the level of
generality, the more desirable the objective will be)
 Cost
- The level of generality can have a serious impact on whether the minimum
- Is it a possible justification of a limit on a Charter right that the limit will save
impairment limb will be passed
money?
- The statement of the objective should be related to the infringement of the
- R v Lee suggests YES
Charter, rather than to other goals.
E.g. In RJR MacDonald v Canada, the
challenged law banned advertising on tobacco products.
Thus, the objective
PART 2: Proportionality test
should not have been phrased as the protection of public health from the use of
tobacco. In that case, it was said that the objective must be to prevent people in
(1) Rational connection
Canada from being persuaded by advertising and promotion to use tobacco
 Definition
products.
- The requirement of rational connection calls for an assessment of how well the
- E.g. In Irwin Toy, the impugned law prohibited advertising directed at children
legislative garment has been tailored to suit its purpose.
under 13.
carefully designed to achieve the objective in question; it should not be arbitrary,
The majority defined the objective at a very low level, as the
The law must be
“protection of children from advertising”
unfair, or based on irrational considerations
- DEFINE THE OBJECTIVE AT A FAIRLY HIGH LEVEL OF GENERALITY
- E.g. Benner v Canada: Law required person born to a Canadian mother to apply
WITHOUT JUST RESTATING THE LAW
for a citizenship and pass a security check, while there person born to a Canadian
father was entitled to citizenship automatically upon registering the birth in
 Importance of objective
Canada. The objective was said to be to screen potential citizens in order to keep
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dangerous people out (re: required security check). The Court held that there was
- The effects of the limiting measures must not so severely trench on individual
no rational connection b/w the objective and the discrimination. Children of
or group rights that the legislative objective, albeit important, is nevertheless
Canadian mothers could not rationally be regarded as more dangerous than
outweighed by the abridgement of the rights
children of Canadian fathers
- This should take into account the proportionateity between the deleterious and
the salutary effects of the measures
 Causation
- Question is whether the Charter infringement is too high a price to pay for the
- The essence of rational connection is a causal relationship between the objective
benefit of the law
of the law and the measures enacted by the law
- This test, however, has never influenced the outcome of a case, and it is
redundant
(2) Minimum impairment
- If the first part of the test is passed (sufficient objective), then this one should
 Definition
necessarily be passed as well
- The limit on the Charter right must be the minimum that is necessary to
accomplish the desired objective
[11] REMEDIES: ss 52 (Constitution Act, 1982) and 24(1) (Charter)
 Margin of appreciation
The supremacy clause
- But court must pay some degree of deference to legislative choices
 S 52
- The majority in Edwards Books recognised this idea of a margin of
- The supremacy clause gives to the Charter overriding effect, as the Charter is
appreciation – we look for a reasonable legislative effort to minimize the
part of the “Constitution”
infringement of the Charter right, rather than insisting that only the least possible
- The effect of the supremacy clause is to preserve all pre-existing remedies for
infringement could survive
unconstitutional action and extend those remedies to the Charter of Rights (this is
unlike s 24(1), the other remedy section, which authorities a court of competent
(3) Proportionate effect
jurisdiction to award a remedy for a breach of the Charter)
- There are 6 choices of available remedies for s 52(1):
(1) Nullification
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(2) Temporary validity: The rationale for this remedy is that it would be
better for Parliament/legislatures to
- It is the persons’ whose rights have been infringed or denied that is given
standing
correct the constitutional defect (“dialogue”)
(3) Severance
 Apprehended infringements
(4) Reading in (Schachter): Applies to under inclusive statute which,
- Not permitted, but see R v Demers
usually, confers a benefit on a class that
failed to include all persons who had an equality based right to be
included.
(5) Reading down
 Court of competent jurisdiction
- s 24(1) remedies may be granted only by a “court of competent jurisdiction”
(unlike s 52(1))
(6) Constitutional exemption
 Range of remedies
Remedy clause
- This section doesn’t limit the range of remedies available
 S 24(1)
- Subject to the important qualification that a remedy must be appropriate and just
- This section provides for the granting of a remedy to enforce the rights or
in all the circumstances of the case, there is no limit to the remedies that may be
freedoms guaranteed by the Charter (i.e. it is applicable only to breaches of the
ordered under this section
Charter)
- There are defensive remedies (where the court nullifies or stops an act, for
- S 24(1) is needed only where a remedy provided by the general law is not
example by dismissing a charge, staying a proceeding, quashing a warrant), and
available, or will not provide satisfactory redress.
affirmative remedies (such as ordering a province to provide state-funded couinsel
- Generally speaking, it will be the declaration of invalidity under s 52(1) that
to an indigent litigant, ordering the return of goods improperly seized or a
provides the remedy for laws that violate a Charter right, while s 24(1) provides
mandatory injunction requiring positive action)
the remedy for government acts that violate an individual’s Charter right
- Damages is sometimes appropriate, and so is an order of costs
 Standing
Schachter v Canada
FACTS: A s 15 claim was made.
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ISSUE:
Does s. 24(1) of the Charter confer on the Federal Court Trial Division
Reading In as Akin to Severance
the power to order that natural parents are entitled to benefits on the same terms as
 In the usual case of severance the inconsistency is defined as something
benefits are available to adoptive parents under s. 32 (subsequently s. 20) of that
improperly included in the statute which can be severed and struck down. In the
Act?
case of reading in the inconsistency is defined as what the statute wrongly excludes
REASONING:
rather than what it wrongly includes
 A court has flexibility in determining what course of action to take following a
violation of the Charter which didn’t survive s 1 scrutiny
Deciding whether Severance or Reading in is Appropriate
 In choosing how to apply s. 52 or s. 24 a court will determine its course of action
 Having determined what the extent of the inconsistency is, the next question is
with reference to the nature of the violation and the context of the specific legislation
whether that inconsistency may be dealt with by way of severance, or in some cases
under consideration
reading in, or whether an impugned provision must be struck down in its entirety
 Regarding the reading in remedy, in some cases, the question of how the statute
Section 52
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
The Doctrine of Severance
case, it is the legislature's role to fill in the gaps, not the court's
 Generally speaking, when only a part of a statute or provision violates the
 The remedy must not intrude on legislative sphere, and the degree to which a
Constitution, it is common sense that only the offending portion should be declared
particular remedy intrudes into the legislative sphere can only be determined by
to be of no force or effect, and the rest should be spared.
giving careful attention to the objective embodied in the legislation in question
 The doctrine of severance requires that a court define carefully the extent of the
 One way to ask whether to read in or sever would be an illegitimate intrusion into
inconsistency between the statute in question and the requirements of the
the legislative sphere is to ask whether the significance of the part which would
Constitution, and then declare inoperative (a) the inconsistent portion, and (b) such
remain is substantially changed when the offending part is excised
part of the remainder of which it cannot be safely assumed that the legislature would
 Another way is to look at the significance of the remaining portion: has the
have enacted it without the inconsistent portion.
permissible portion always been there? If so, then it would be safe to assume that the
legislature would have enacted the permissible portion without the impermissible
portion
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 There is no easy formula by which a court may decide whether to sever or read
 Section 52 is engaged when a law is itself held to be unconstitutional, as opposed
in. While respect for the role of the legislature and the purposes of the Charter are
to simply a particular action taken under it
the twin guiding principles, these principles can only be fulfilled with respect to the
 Once s. 52 is engaged, three questions must be answered. First, what is the extent
variety of considerations set out above which require careful attention in each case
of the inconsistency? Second, can that inconsistency be dealt with alone, by way of
severance or reading in, or are other parts of the legislation inextricably linked to it?
Whether to Temporarily Suspend the Declaration of Invalidity
Third, should the declaration of invalidity be temporarily suspended? The factors to

be considered can be summarized as follow
Having identified the extent of the inconsistency, and having determined
whether that inconsistency should be dealt with by way of striking down, severance
(i) The Extent of the Inconsistency
or reading in, the court has identified what portion must be struck down.
 The final step is to determine whether the declaration of invalidity of that portion
The extent of the inconsistency should be defined:
should be temporarily suspended.
A. broadly where the legislation in question fails the first branch of the Oakes test
 A court may strike down legislation or a legislative provision but suspend the
effect of that declaration until Parliament or the provincial legislature has had an
opportunity to fill the void
in that its purpose is held not to be
sufficiently pressing or substantial to justify infringing a Charter right or, indeed, if
the purpose is itself held to be
 This approach is clearly appropriate where the striking down of a provision poses
unconstitutional -- perhaps the legislation in its entirety;
a potential danger to the public
B. more narrowly where the purpose is held to be sufficiently pressing and
 It may also be appropriate in cases of underinclusiveness as opposed to
overbreadth. For example, in this case some of the interveners argued that in cases
where a denial of equal benefit of the law is alleged, the legislation in question is not
usually problematic in and of itself. It is its underinclusiveness that is problematic
so striking down the law immediately would deprive deserving persons of benefits
without providing them to the applicant
substantial, but the legislation fails the first
element of the proportionality branch of the Oakes test in that the means used to
achieve that purpose are held not to be
rationally connected to it -- generally limited to the particular portion which fails
the rational connection test; or,
C. flexibly where the legislation fails the second or third element of the
proportionality branch of the Oakes test.
Summary of s 52
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(ii) Severance/Reading In
A. striking down the legislation without enacting something in its place would
pose a danger to the public;
Severance or reading in will be warranted only in the clearest of cases, that is,
B. striking down the legislation without enacting something in its place would
where each of the following criteria is met:
A. the legislative objective is obvious, or it is revealed through the evidence
offered pursuant to the failed s. 1 argument, and
threaten the rule of law; or,
C. the legislation was deemed unconstitutional because of underinclusiveness
rather than over breadth, and therefore
severance or reading in would further that objective, or constitute a lesser
striking down the legislation would result in the deprivation of benefits from
interference with that objective than would striking
deserving persons without thereby benefitting the
down;
individual whose rights have been violated.
B. the choice of means used by the legislature to further that objective is not so
unequivocal that severance/reading in would
Section 24
constitute an unacceptable intrusion into the legislative domain; and,
C. severance or reading in would not involve an intrusion into legislative
budgetary decisions so substantial as to change the
nature of the legislative scheme in question.
Section 24(1) Alone
 Where s. 52 of the Constitution Act, 1982 is not engaged, a remedy under s. 24(1)
of the Charter may nonetheless be available. This will be the case where the statute
or provision in question is not in and of itself unconstitutional, but some action taken
(iii) Temporarily Suspending the Declaration of Invalidity
under it infringes a person's Charter rights. Section 24(1) would there provide for
an individual remedy for the person whose rights have been so infringed.
Temporarily suspending the declaration of invalidity to give Parliament or the
provincial legislature in question an opportunity
to bring the impugned legislation or legislative provision into line with its
constitutional obligations will be warranted even
where striking down has been deemed the most appropriate option on the basis of
one of the above criteria if:
Remedial Options
 Does s. 24(1) of the Charter confer on the Federal Court Trial Division the power
to order that natural parents are entitled to benefits on the same terms as benefits are
available to adoptive parents under s. 32 (subsequently s. 20) of that Act?
The answer to question two is no. Section 24(1) provides an individual remedy
for actions taken under a law which violate an individual's Charter rights. Again,
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however, a limited power to extend legislation is available to courts in appropriate
 Court chooses reading in as appropriate remedy: It seems to me that the
circumstances by way of the power to read in derived from s. 52 of the Constitution
remedy of reading in would minimize interference with this clearly legitimate
Act, 1982.
legislative purpose and thereby avoid excessive intrusion into the legislative
HELD: Appeal set aside
sphere whereas striking down the IRPA would deprive all Albertans of human
rights protection and thereby unduly interfere with the scheme enacted by the
Legislature. Also, this remedy respects purposes of Charter
Vriend v Alberta

Remedy
only be fulfilled if due consideration is given to several additional criteria which
 The leading case on constitutional remedies is Schachter
further inform the determination as to whether the remedy of reading in is
 The first step in selecting a remedial course under s. 52 is to define the extent
appropriate. These include remedial precision (this can be achieved here; just
of the Charter inconsistency which must be struck down. In the present case, that
adding words “sexual orientation), budgetary implications (not sufficiently
inconsistency is the exclusion of sexual orientation from the protected grounds of
significant here), effects on the thrust of the legislation (no deleterious
the IRPA. As I have concluded above, this exclusion is an unjustifiable
impact, because all persons protected would continue to benefit), and
infringement upon the equality rights guaranteed in s. 15
interference with legislative objectives (reading in would only enhance the
 Once the Charter inconsistency has been identified, the second step is to
legislative objective).
In Schachter, supra, Lamer C.J. noted that the twin guiding principles can
determine which remedy is appropriate. In Schachter, this Court noted that,
depending upon the circumstances, there are several remedial options available to
a court in dealing with a Charter violation that was not saved by s. 1. These
[12]
CHARTER ANSWER STRUCTURE
reading down, and reading provisions into the legislation. Must apply the twin
(1)
Application of the Charter: s 32, Constitution Act, 1982
guiding principles here (respect for role of Legislature and purposes of
-
Does the Charter apply in this situation?
(2)
Is there an override provision in the law: s 33
include striking down the legislation, severance of the offending sections, striking
down or severance with a temporary suspension of the declaration of invalidity,
Charter)
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-
Note: Only mention this if there is an impugned Act (legislation). Does
not apply to government actions.
prescribed by law, that is demonstrably justified in a free and democratic
society.
(3)
Infringement of a Charter right
-
The onus is on the applicant/claimant to demonstrate that an infringement
a. Is the limit “prescribed by law”? (Consider whether the law is
accessible, precise and not vague. Re:
has occurred (presumption of constitutionality)
accessibility, a statute or regulation suffices: Dolphin Delivery. Re:
precision and vagueness, make a
a. What is the purpose or effect or the law/action (Big M)
judgment call)
b. Does it’s purpose or effect infringe a Charter right? [Note: This is
where you outline the law of the relevant
-
The next step is to apply the Oakes test:
Charter right in relation to how what the right protects, e.g. does the
effect of the legislation infringe
freedom of religion?
b.
To answer that, first must define what
“religion” is as per s 2(a)]
Does the legislation/action have a sufficiently pressing and
substantial objective?
c. Does the legislation/action pass the proportionality test?
c. Is the infringement more than trivial? (No Charter right, including
freedom of religion, is absolute. Charter
prohibits only burdens or impositions on religious practice that are
(i)
Is the limit rationally connected to the legislative
purpose? (the law’s means must
non-trivial) (R v Jones)
contribute
to
the
achievement
of
its
objectives)
(4)
Section 1 analysis (Oakes)
-
Burden shifts to legislature/Parliament/government to justify violation
-
The Charter does not guarantee rights absolutely. The violation may be
lawful if it results in a reasonable limit,
(ii)
Does the limit minimally impair the right?
(Means chosen must be the least
restrictive manner of accomplishing the
objective of the impugned provisions.
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Requires a consideration of alternatives
available to government. In making this
assessment, the courts accord the legislature a
measure of deference, i.e. there is a
(5)
-
Overall conclusion
Therefore, _____ (does/does not) offend the Charter, and is therefore
constitutionally (valid/invalid)
margin of appreciation) (Edwards Books)
(6)
(iii) Is the law proportionate in its effect? In other words,
when one balances the harm
done to the claimants’ (list the right
infringed) against the benefits associated with
(state what the impugned law essentially
does), is the limit on the right proportionate
in effect to the public benefit conferred by the
limit?
- Salutary effects?
- Deleterious effects?
- Balancing the salutary and deleterious effects of
the law, I conclude that the
impact of the limit on (name the infringed right)
(is/is not) proportionate.
d.
Conclusion? (e.g., Based on the analysis above, I conclude that I
conclude that the limit on ____ is/is not
justified under s 1)
-
Remedies: ss 24 & 52
The next step would be a Court imposing a remedy