*Note - Case law highlighted in colour blue signifies that it is a syllabus case law
Topic No.
Title
Page No
Part 1: Basic Concepts
1
Sources and nature of the constitution
2
2
Amending procedures
3
Part 2: Distribution of legislative powers
3
Federalism--some essay type questions
7
4
Judicial review and principles of interpretation
11
5
Property and civil rights (Provincial power)
12
6
Trade and commerce (Federal power)
16
7
POGG (Peace Order and Good Government) (Federal power)
19
8
Criminal law (Federal power)
24
9
Ancillary powers
29
10
Paramountcy
30
11
Interjurisdictional immunity
37
Part 3: Aboriginal Rights
12
Introduction
39
13
Aboriginal Rights
40
14
Aboriginal Title
43
15
Treaty Rights
44
16
Duty to consult
46
Part 4: The Canadian Charter of Rights and Freedom
17
Interpreting the Canadian Charter of Rights and Freedoms
18
Application of Canadian Charter of Rights
48
19
Override of rights
52
20
Freedom of conscious and religion - Section 2(a)
53
21
Freedom of expression – Section 2(b)
58
22
Freedom of life, liberty and security - Section 7
68
23
Equality rights - Section15
75
24
Limitation of rights
84
25
Remedies
88
*Note - Case law highlighted in colour blue signifies that it is a syllabus case law
1
PART 1: BASIC CONCEPTS
(CONTAINS TOPIC 1 AND 2)
TOPIC 1 – SOURCES AND NATURE OF THE
CONSTITUTION
Reference Re Secession of Quebec [1998] 2 S.C.R 217
FACTS: Quebec attempted to secede from Canada.
ISSUE: Under the constitution of Canada, can the National Assembly, legislature or
government of Quebec effect the secession of Quebec from Canada unilaterally?
HELD: Faced with the question of whether Québec could make a unilateral declaration of
independence, the Supreme Court declared unanimously in this reference (1998) that such a
declaration would be unconstitutional both by Canadian constitutional law and international
law. A constitutional amendment would, however, make such a secession possible.
TOPIC 2- AMENDING PROCEDURES
Note: Constitution can be amended in 5 different ways. If exam contains essay type
question, then write all, otherwise write only the relevant one
Q.1. What are different types of amending procedures?
There are five different amendment procedures, each applicable to different types of
amendments. These five formulas are:
1. The general procedure (the "7/50" procedure) - section 38. The amendment must be passed
by the House of Commons, the Senate, and at least two-thirds of the provincial legislative
assemblies representing at least 50% of the total population of the provinces. This is the
default procedure and it covers any amendment procedure not covered more specifically in
sections 41, 43, 44 or 45. The general formula must be used for any of the six situations
identified in section 42.
2. The unanimity Procedure - section 41. The amendment must be passed by the House of
Commons, Senate, and all provincial legislative assemblies.
2
3. The special arrangements procedure ("some-but-not-all-provinces" procedure) - section 43.
The amendment must be passed by the House of Commons, the Senate, and the legislative
assemblies of those provinces that are affected by the amendment.
4. Federal Parliament Alone (or "federal unilateral" procedure) - section 44. The amendment
must only be passed by Parliament under its ordinary legislative procedure.
5. Provincial Legislature Alone (or "provincial unilateral" procedure) - section 45. The
amendment must only be passed by the provincial legislature under its ordinary legislative
procedure.
Q.2. WHICH MATTERS ARE RESERVED FOR S. 38 PROCEDURE?
The following matters are reserved to the s. 38 procedure, by virtue of s. 42:
a) the principle of proportionate representation of the provinces in the House of Commons
prescribed by the Constitution of Canada;
b) the powers of the Senate and the method of selecting Senators;
c) the number of members by which a province is entitled to be represented in the Senate and
the residence qualifications of Senators;
d) subject to paragraph 41(d), the Supreme Court of Canada;
e) the extension of existing provinces into the territories; and
f) the establishment of new provinces.
NOW DETAILS OF DIFFERENT AMENDING PROCEDURES—If Fact Pattern Q, then only
one which is applicable
1. General Amending Procedure s. 38(1)
● The two thirds requirement means that at least seven of the ten provinces must agree to an
amendment
● Seven provinces would inevitably include at least one of the four Western provinces and at
least one of the four Atlantic provinces
● The 50 percent population requirement means that the agreeing provinces must include at
least one of Quebec or Ontario, since the combined population of Quebec and Ontario is more
than 50 percent of the population of Canada
● Compensation can be provided to the provinces for opting out of education or cultural powers
that are transferred to the federal Parliament under s. 38(1)
2. Unanimity Procedure s. 41(national significance)
● Section 41 applies to an amendment in relation to the following matters
a) The office of the Queen, the Governor General and the Lieutenant Governor of a province
3
b) The right of a province to a number of members in the House of Commons not less than the
number of Senators by which the province is entitled to be represented at the time this Part
comes into force
c) Subject to section 43, the use of the English or the French language
d) The composition of the Supreme Court of Canada
e) An amendment to this part
● Requires the unanimous support of the provinces
● Consequently, in respect of these matters each province has a veto
● The five listed topics are specially entrenched because they are deemed to be matters of
national significance which should not be altered over the objection of even one province
● An amendment under this procedure does not require a waiting period before its proclamation
● The three-year time limit applicable to s. 38(1) does not apply either
3. Some-but-not-all-provinces procedure (s. 43)
● There are provisions of the Constitution of Canada which apply to one or more, but not all,
provinces. For example, s. 93 of the Constitution Act, 1867 (education) applies only to six of
the ten provinces, s. 94 of the Constitution Act, 1867 (uniformity of laws) does not apply to
Quebec...
● Hogan v. Newfoundland
o The validity of a s. 43 amendment removing the guarantee of public funding to denomination
schools was challenged
o They argued that s. 43 could not be the correct procedure for the amendment, because the
constitutional rights of a minority should not be able to be overridden by the majority
o This argument was rejected by the Newfoundland CA
o The “inescapable fact” was that the amending procedure of the Constitution “entrusts minority
rights to the majority.”
4. Federal Parliament alone (s. 44)
● Section 44 authorizes the federal Parliament, by ordinary legislation, to amend those parts of
the Constitution of Canada which relate to “the executive government of Canada or the Senate
and House of Commons.”
5. Provincial Legislature alone (s. 45)
● Section 45 authorizes each provincial Legislature, by ordinary legislation, to amend the
“constitution of the province”
● A law is an amendment to the constitution of the province if “it bears on the operation of an
organ of government of the province”
4
● This definition embraces laws respecting the abolition of a province’s Legislative Council
(upper house), the public service of the province, the powers and privileges of the legislative
assembly, and the term of the legislative assembly.
SHORT ESSAY TYPE QUESTION
Que: Supreme Court of Canada was not created by the Constitution of Canada. Do you
agree with this statement?
Ans: There has been a debate among legal scholars as to whether the Supreme Court of
Canada is entrenched in the Constitution of Canada. The Supreme Court of Canada was not
created by the constitution, rather the power to create a "Court of General Appeal for Canada"
was granted to Parliament by s. 101 of the British North America Act, 1867. Parliament
proceeded to create the Supreme Court of Canada under the authority of s. 101 in 1875 by
passing the Supreme Court Act, which was an ordinary piece of legislation with no
constitutional significance at the time. The Supreme Court of Canada was mentioned for the
first time in a constitutional document by the Constitution Act, 1982. The Supreme Court is
referred to twice. First, s. 41 lists several amendments to the Constitution of Canada requiring
unanimous consent. S. 41(d) includes the "composition of the Supreme Court of Canada" in
this list. Second, s. 42(1) lists several amendments to the Constitution of Canada requiring the
general amendment procedure. S. 42(1)(d) includes "subject to s. 41(d), the Supreme Court
of Canada" in this list. Sections 41 and 42 of the Constitution Act, 1982, thus appear to include
the Supreme Court of Canada in the Constitution of Canada. However, this conclusion is
questionable because the "Constitution of Canada" is expressly defined in s. 52(2) as
a set of thirty instruments that does not include the Supreme Court Act.
Peter Hogg’s view: Some scholars, including Peter Hogg, have suggested that the
references to the Supreme Court of Canada in sections 41 and 42 are ineffective. They argue
that these references are "anticipatory" and will become effective only if Parliament adds the
Supreme Court Act to the list in s. 52(2). Other scholars, including Professor Cheffins, have
argued that the Supreme Court Act is implied as entrenched into s. 52(2) because of sections
41 and 42. S. 52(2) uses the words "includes ..." to introduce the list of thirty instruments,
suggesting that the provision does not contain an exhaustive list. The Supreme Court itself
has confirmed in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of
Assembly), [1993] that s. 52(2) is not exhaustive, but has not yet ruled on whether the
Supreme Court Act is included in the Constitution of Canada.
S. 4(2) of the Supreme Court Act.
This issue has implications for judicial selection in Canada. S. 4(2) of the Supreme Court Act
specifies that the Governor in Council (federal cabinet) has the power to appoint judges to the
Supreme Court. Government may introduce a new process. If the new process binds the
federal government, it will necessarily involve an amendment to s. 4(2) of the Supreme Court
Act. If the Act is "constitutionalized," this would require a constitutional amendment under the
general amendment procedure, a significant hurdle requiring provincial cooperation.
5
PART 2: DISTRIBUTION OF LEGISLATIVE POWERS
(CONTAINS TOPIC 3-11)
TOPIC# 3-FEDERALISM--SOME ESSAY TYPE
QUESTIONS
Q. What is Federalism?
Canadian federalism essentially means that the sovereignty of Canada is split between two
levels, federal and provincial. The constitution provides each province has its own
government. The federal government as well as each provincial government is afforded certain
powers. The division of powers is listed in Sections 91 and 92 of the Constitution Act, 1867.
Section 91 lists the powers of the federal government, while section 92 lists the powers of the
provincial governments.
Q. What are the unwritten principles of relating to federalism?
The most important "unwritten" constitutional principle relating to federalism is that Canada
has full sovereignty, that is, Canada can exercise all of the powers of an independent country.
All of Canada's sovereignty can theoretically be exercised by either the federal or provincial
governments; there is nothing that one or the other government cannot do. Another unwritten
constitutional principle is that it is up to Canada's courts to decide which government has the
power to do what, when the rules are unclear. As such, the courts are viewed as the
gatekeepers.
Q. What is the benefit to be a federal state?
In a country that cover diverse regions, there may be advantages of efficiency and
accountability in dividing the powers of government so that a national government is
responsible for mat ters of national importance and provincial governments are responsible
for matters of local importance.
▪
A more decentralized form of government can be expected to be able to identify and give
effect to different preferences and interests in different parts of the country. This was
expressed in the Secession reference (diversity of linguistic minorities and majorities in
different provinces.
Q. What is the significance of s.91 and s.92 in regard to the concept of federalism?
Federal powers have been interpreted in two ways. Two competing interpretations exist.
1) Federal powers are “general” in scope as indicated by the POGG, unlimited by anything
except the list of provincial powers (the classes of s.91 are only illustrative).
2) Federal powers are found in the classes of s.91 and the POGG powers are only residuary, to
be used in cases where matters are not clearly assigned to either the federal or provincial
branches.
6
In fact, the courts do give primary effect to the enumerated powers, using POGG only in limited
circumstances. Federalism and the ‘division of powers’ are heavily related. This division has
strengthened the court’s ‘constitutional right’ to review decisions of each government. The
mere confusion and attempt to categorize powers, whether federal or provincial, has increased
the courts power to review, as they are the only competent and fair body to decide final
matters.
Q. What is Secession & the Secession Reference Case?
Secession is the power to secede (break away, pull out, withdraw). Essentially the ability to
renounce partnership with a given state and become independent or join another state.
Q. Can a province successfully secede from the union that is Canada?
▪
The doctrine of federalism does not, on face value or on a principled basis, restrict a
province from withdrawing from Canada.
▪
Yet, because the legislatures (both provincial and federal) gain their authority from the
constitution, the fact that there is an absence of any provision in the Constitution authorizing
secession implies that no unilateral secession is possible. To clarify, a province cannot
legally (via the Constitution) withdraw unless there is consent from the parties involved (i.e.
the provinces). This is now an unwritten principle and constitutional convention (see
Secession Reference).
▪
The answer: yes, they can, but not unilaterally. It must be done with the active negotiation of
all involved parties. This is because of the combination of unwritten principles which were
‘found’ in Secession Reference.
Background to the Secession Reference:
▪
The question whether a province has the power to secede from the Canadian federation
became an issue after the election in Quebec in 1976 of the Parti Quebecois.
▪
The 1995 referendum proceeded on the assumption that a unilateral declaration of
independence would be legally effective to remove Quebec, with its present boundaries, from
Canada, without the need for any amendment of the Constitution of Canada and regardless
of whether the terms of separation were agreed to by Canada.
▪
The court was asked if Quebec had the legal right to secede unilaterally. Secession, to be
legal, would require many amendments to the constitution, there was not a current legal right
to secede.
Q. WHAT IS SECESSION REFERENCE (1998)?
o SCC held: the secession from Canada of a province could not be undertaken in defiance of
the terms of the Constitution of Canada. The principle of the rule of law or
constitutionalism required that a government, even one mandated by a popular majority
in a referendum, must still obey the rules of the Constitution.
7
o A secession should be in accordance with the Constitution’s amending procedures.
From this case, Constitutional Principles emerged (federalism, democracy, rule of law
/ constitutionalism, minority protection)
1) Democratic principles demand that considerable weight be given to a clear expression by
the people of Quebec of their will to secede from Canada, even though a referendum, in itself
and without more, has no direct legal effect, and could not in itself bring about unilateral
secession
2) The federalism principle, when combined with the democratic principle, lends towards the
idea that a clear expression of the desire to pursue secession by the population of a province
would give rise to a reciprocal obligation on all parties to Confederation (i.e. all provinces) to
negotiate constitutional changes to respond to that desire.
3) The Principle of effectiveness states that a unilateral declaration of independence by a
province could lead to a de facto secession, which might take place without the required
agreement or the required amendment – such a secession would be unconstitutional –
however, an unconstitutional secession could become successful if the seceding government
achieved effective control of a territory and recognition by the international community.
● Therefore, the SCC, in utilizing the unwritten principles of (1) democracy, (2) federalism,
(3) constitutionalism and the rule of law and the (4) protection of minorities held that, if
a province was to decide in a referendum that it wanted to secede from Canada, the federal
government and the other provinces would come under a legal duty to enter into
negotiations to accomplish the secession
● This case Illustrates the active and creative role that the modern SCC has carved
● This case carries the Constitution of Canada way beyond the literal language of its text and
way beyond the intentions of the framers.
Q. What is the concept of Constitutional Supremacy?
The constitution should not be left to unwritten understandings, like that of the UK. Canada,
being a ‘new’ country, had the unique opportunity to declare a written constitution from
independence. Federal constitutions must be rigid and entrenched (with amending formulas
present) in order to be aligned with the rule of law.
As such, the constitution must be “supreme”, meaning that it must be binding on, and
unalterable by, each of the central and regional authorities. This is expressed in s 52(1) of the
Constitution Act, 1982 which expressly affirms the supremacy over all other laws of the
Constitution of Canada. This provision means that any law inconsistent with the constitution
(and now the charter) is of no force or effect. The courts have the authority via s S.24 to remedy
the breach where just and appropriate.
Q. What is the concept of Parliamentary Supremacy?
Arguments for: Consider that the scope of Parliament’s law-making jurisdiction is endless,
Consider that Parliament is free to pass careless or bad laws; Consider that even if the
ministry tricks Parliament into passing a law, that alone is insufficient for a court to strike it
8
down (see Turner v Canada); Consider that Canadians aren’t entitled to due process or
procedural fairness in the law-making process (so long as the procedures in the
Constitution have been met); Consider that there can be expropriation without compensation
by way of legislation that makes such an intent clear (Authorson v Canada)
Arguments against: Consider the division of powers found in ss 91 and 92 which identify
certain subjects. Explain the overlap between sections.
Parliamentary Privilege
Parliamentary privilege is owned by bodies of parliament. It is a common law power and is
unique in that it is not subject to the Charter of Rights and Freedoms. The most important
function lies in the houses of Parliament. The Federal Houses of Parliament and the provincial
legislative assemblies possess a set of powers and privileges that are “necessary to their
capacity to function as legislative bodies” (i.e. known collectively as “parliamentary
privilege”).
What does it mean that parliamentary privilege is not subject to the Charter?
Well, this type of privilege is unique. Actions in the regular day to day operations of Parliament,
for example the debates on the Parliament floor, are not subject to legal actions. So, for
example, if a discussion in Parliament breaches or acts to restrict freedom of speech, a
defendant cannot invoke the Charter to claim it in fact breached the freedom, as no freedom
exists in Parliament. In Canada v Vaid (2005) a sweeping claim by a minister of parliamentary
privilege failed to meet the test for necessity. The claim that hiring and firing of all employees
in government was held not to be not protected by such a privilege. Only certain elements
within parliamentary discussion are protected. Thus, there is a limit to such privilege.
9
TOPIC 4 – SYLLABUS CASES ON JUDICIAL
REVIEW AND PRINCIPLES OF INTERPRETATION
R v Morgentaler [1993] 3 SCR 463
SIGNIFICANCE: Colourability masks the true purpose, pith and substance shows true
purpose
FACTS: Morgentaler set up private abortion clinics in Nova Scotia. In response, the govt of
Nova Scotia created a regulation under the Nova Scotia Medical Services Act to prohibit
abortions outside of hospitals. Morgentaler argues that the Act and regulation violate a
women’s Charter right.
HELD. The Court held that the Act and the regulation, which are very intertwined together,
was aimed at suppressing the harm of abortion clinics and they are ultra vires the province.
Canadian Western Bank v Alberta, 2007 SCC
(IJI not applicable) (Banks have to comply with provincial laws for selling insurance
because it’s a contract). (Ref.91(15) , court said 92(13)
FACTS: The Canadian Western Bank wanted to start selling insurance and they argued that
the selling of insurance is central to their operations as a bank and so they should be immune
from provincial regulations and that the provincial laws frustrates the Bank Act which was
created by federal govt.
HELD: The Supreme Court held, the banks are not protected by inter-jurisdictional immunity,
thus a bank selling insurance will have to comply with provincial regulations regarding
insurance. Inter-jurisdictional immunity would only apply if a provincial law would impair a core
competence of parliament.
Quebec (Attorney General) v Canadian Owners and Pilots
Associations 2010 (IJI was applicable)(Old syllabus)
FACTS: Bernard Laferrier and Sylvie Gervais owned property in Quebec and built a landing
strip and hangar on their land but they did not obtain permission from the provincial govt before
building but they registered their aerodrome under the federal Aeronautics Act. The Prov
government then ordered them return their land to the original state because it was designated
for agricultural use.
HELD: The supreme court applied the principle of IJI on the grounds that the provincial
law does not apply to farmlands with permissible airstrips thus the Prov law was inapplicable
to the extent that it prohibits aerodromes in agricultural zones and the location of the
aerodromes was “essential” to the federal power over aeronautics.
10
ROADMAP FOR DOP QUESTION
This is one of the possible ways (not the only way) to attempt DOP question. Use your
discretion based on the given factual situation in the question.
If One law in fact pattern. (1 Issue)
Two laws (Fed and Prov.) in question (3
Issues)
Issue: Is the Provincial/Federal law Issue 1: Is the Fed law intra/ultra vires the
intra/ultra vires the Provincial/Federal Parliament?
government? (if proposed then write
Issue 2: Is the Provincial law/proposed
proposed legislation).
legislation intra/ultra vires the Provincial
Legislature?
Issue3: Relevant doctrine that might affect
applicability/operability of the Law/proposed
legislation? (For applicability discuss IJI, for
operability discuss paramountcy and
double aspect).
Instructions
1. If you are sure about the doctrine then make the third Issue accordingly.
2. If the examiner has specified the third issue in the question, then use that as third issue.
Rule and Analyses of Issue # 1
i. Discuss Pith and Substance doctrine (Purpose and Effect)
Note: Find the purpose and effect from the facts of the question, not from the Notes.
An ideal answer would include: Define+ case, apply + case
ii. Discuss Colourability Doctrine
An ideal answer would include: Define+ case, apply + case
iii Discuss Incidental effect Doctrine
An ideal answer would include: Define+ case, apply + case
iv Assign the relevant head of power and eliminate related head of power:
● Before assigning it to relevant head of power, Eliminate other related heads of power
For example – while discussing valid Federal Criminal law under 91 (27) eliminate
Provincial power under 92 (15) or Federal POGG power.
● Relevant case from syllabus (preferably)
v. Discuss Interjurisdictional Immunity
An ideal answer would include: Define+ case, apply + case
vi. Discuss Paramountcy
11
An ideal answer would include: Define+ case, apply + case
vii. Discuss Double Aspect
An ideal answer would include: Define+ case, apply + case
Conclusion: Based on the above discussion the------------------law or the proposed legislation
is intra vires or may be sustained under-------------power of the parliament/legislature.
Rule and Analyses of Issue #2
Similar steps as followed in the above analyses
Rule and Analyses of Issue # 3
Discuss the doctrines of Paramountcy, Inter-jurisdictional immunity and double aspect there.
Once the validity of both the laws have been discussed in the above two issues, only then can
these doctrines come into play. To reach the stage of the discussion of operability and double
aspect both laws first must be valid. Whereas, IJI can be discussed earlier also.
TOPIC# 5-PROPERTY AND CIVIL RIGHTS
(Provincial Power)
Section. 92(13) of the Constitution Act, 1867 invest provincial legislatures with exclusive
legislative jurisdiction in relation to matters that come within the class of subject labelled
"property and civil rights in the province".
Case law illuminates that this phrase is equivalent to the private law of torts, property,
contracts, trusts, fiduciary obligations. Courts limit scope of regulation over trade and
commerce to avoid draining provincial powers in P/CR’s. (Parsons Case). S. 92(13),
Constitution Act 1867 confers upon the provincial Legislatures the power to make laws in
relation to “property and civil rights in the province”
FOLLOWING ARE PROVINCIAL MATTERS UNDER PROPERTY AND CIVIL RIGHTS:
1. Contract
2. Tort
3. Labour relations: work, employment contracts. However, in case of labour issues for a
federal undertaking, parliament has the power to regulate (and inter jurisdictional immunity
applies). E.g. issues of labour in relation to navigation and shipping line (91(10))/banks
(91(15)) etc. Provincial competence over labour relations is the rule and federal competence
is the exception.
4. Insurance: not specifically mentioned like banking (91(15)) for federal government. As
insurance terms generally one sided, government sought to protect insured by requiring
inclusion of certain terms and conditions in every policy.
5. Capital market
6. workplace standard
12
7. Regulation of trade in a province & profession: often include fee-settling and administration
by governing body. Law society of province can enforce professional standards of behavior
on Crown prosecutors- Kriegar v Law Society of Alberta (2002)
8. mental health
9. human rights
10. highway traffic
11. environment protection
12. division of family property
13. child protection adoption & guardianship
14. child & spousal support
15. Wills & estate (house related, landlord and tenancy, protection of heritage property etc.s)
16. Consumer protection/ marketing: Provincial marketing scheme is generally valid but when
it goes about to regulate interprovincial trade, it is federal power and hence not allowed
17. welfare benefits
18. Social assistance
19. zoning & land use
20. Municipality.
21. Securities: province can regulate trade in corporate securities. However, except for the limited
immunity of federally incorporated companies, provinces have power to regulate securities.
IRAC FOR TOPIC 5
In an exam scenario, there can be an Act from any of the above listed provincial matters. First
make an issue(s) like this
Issue No 1: whether
(act) is intra vires/ultra vires the legislature
Rules:
S. 92 (13)- Property and Civil rights
Citizen’s Insurance Co v Parsons [1881] Chatterjee v Ontario (AG) [2009] Reference Re
Securities Act 2011.
Analysis of issue No 1:
•
Discuss the pith and substance doctrine
•
Discuss colourability
•
Discuss Incidental Effect
•
Eliminate related head of power
•
Assign head of power
13
•
Discuss relevant cases
•
Conclusion
•
Discuss IJI
•
Discuss Paramountcy
•
Discuss Double Aspect
Discuss other issues you may have highlighted above and follow the same sequence in issue-1
If you know the relevant doctrine, you may make it your next issue and discuss it.
If not, discuss relevant doctrines (eliminate closely related doctrines)
Conclusion: Based on the above discussion, the law or the proposed legislation is intra vires
or may be sustained under power of the parliament/legislature
14
SYLLABUS CASES FOR TOPIC-5
Citizen’s Insurance Company of Canada v Parsons [1881]
Ratio. Provincial law is valid, even on federal insurance company.
Facts: Provincial insurance statute stipulated certain conditions to be included in all fire
insurance policies entered into in the province.
Issue: Federal insurance company not complying with provincial act. Insurance company
argues Provincial Act is ultra vires b/c of trade and commerce
Held: that Provincial Act is intra vires b/c it regulated contract of a specific trade. Privy
Council interpreted S.92(13) widely to include contracts related to insurance, while
S.91(2) (federal trade) is to be interpreted narrowly. s91(2), dealing w/ trade & commerce,
is limited to the following areas:
(1) regulation of trade and commerce should not be read literally
(2) It includes international trade and interprovincial trade; and general Regulation of trade
affecting whole Dominion.
(3) It does not extend to regulate contracts between business
Chatterjee v Ontario (AG) [2009]:
Ratio. Provincial law is valid for forfeiture of proceeds of unlawful activity. It’s not criminal law
Facts: Provincial law providing for forfeiture of proceeds of unlawful activity.
Issue was whether provincial law in pith and substance is criminal law and ultra vires
province. But it was held that it is not ultra vires because purpose is to use proceeds of
crime to compensate victims and public. Effect is to allow province to seize property that
is tainted by crime. Province can make laws for administration of justice in the province
from S.92(15) with ancillary punitive provisions (fine, penalty, imprisonment up to 6
months).
Held. If the dominant feature of the provincial enactment is in relation to provincial objects,
as it is here, the law will be valid, and if the enactments of both levels of government can
generally function without operational conflict they will be permitted to do so.
REFERENCE RE SECURITIES ACT 2011
Ratio. Provincial law is valid because it regulates day to day activities
15
ISSUE: The issue was whether the regulation of the securities industry is a valid exercise
of the federal trade and commerce power? Answer: NO
The proposed act directed at protecting interest of investors and ensuring fairness of
capital markets through day-to-day regulation issues.
ARGUEMENTS: Arguments focused on the applicability of the five criteria for such an
analysis that were previously identified in General Motors of Canada Ltd. v. City National
Leasing. Federal Govt. argued this is of national concern.
HELD: Court looked at the pith and substance of the law. Court held that a cooperative
approach should be adopted and only when genuine national concerns are involved
federal government has powers.
Proposed Act is not valid under the general branch of the federal power to regulate trade
and commerce. It focused on the day-to-day regulation of all aspects of contracts for
securities within the provinces.
Therefore, Pith and substance of securities industry regulation is a matter of property and
civil rights
TOPIC# 6 TRADE AND COMMERCE-91(2)
(Federal Power)
This power can only be used to legislate on matters of genuine national importance and
scope – matters that transcend the local and concern Canada as a whole. Reference re
Securities Act, 2011 SCC 66.
IRAC TOPIC 6
First make an issue(s) like this
Issue No 1: whether
(act) is intra vires/ultra vires the Parliament?
Rules:
S. 91(2) Regulation of Trade and Commerce.
General Motors of Canada v. City National Leasing,
[1989] Reference Re Securities Act 2011
Analysis of issue No 1:
•
Discuss the pith and substance doctrine
•
Discuss colourability
16
•
Discuss Incidental Effect
•
Eliminate related head of power
•
Assign head of power
•
Discuss relevant cases
•
Conclusion
•
Discuss IJI
•
Discuss Paramountcy
•
Discuss Double Aspect
Discuss other issues you may have highlighted above and follow the same sequence in
issue 1
If you know the relevant doctrine make it your next issue and discuss it.
If not discuss relevant doctrines (eliminate closely related doctrines)
SYLLABUS CASES FOR TOPIC-6
General Motors of Canada v. City National Leasing [1989] 1
S.C.R.
Ratio. (Federal law, combines investigations act under T & C is valid)
Facts: General Motors (GM) produced Cars and Trucks. City National Leasing (CNL)
leased cars and trucks across Canada, purchasing indirectly from GM. CNL accused GM
of paying preferential interest rates to its competitors.
Issues: CNL claimed that exclusion of CNL from preferential rates was a practice of price
discrimination under Combines Investigation Act. GM argued Combines Investigation
Act is ultra vires parliament and should not apply (The purchases, and the associated
financing arrangements, were transactions that, individually, took place within a single
province). (So, provincial law should apply, not federal, combined investigations act)
Held: In upholding the Combines Investigation Act under this branch, Dickson, C.J.
in set out a non-exhaustive list of five features of the law that are typically required in
order to be characterized as general trade and commerce legislation. The absence of any
of these criteria is not necessarily determinative.
17
1. The legislation must be part of a general regulatory scheme.
2. The regulatory scheme must be monitored by the continuing oversight of a regulatory
agent. (Look for that agent in exam facts)
3. The legislation must be concerned with trade as a whole rather than a particular
industry.
(i.e. three suggestions of Vapor test and Dickson, C.J. added fourth and fifth:)
4. The legislation should be of a nature that the provinces jointly or severally would be
constitutionally incapable of enacting.
5. Failure to include one or more provinces or localities in a legislative scheme would
jeopardize the successful operation of the scheme in other parts of the country.
REFERENCE RE SECURITIES ACT 2011
ISSUE: The issue was whether the regulation of the securities industry is a valid exercise
of the federal trade and commerce power? Answer: NO
The proposed act directed at protecting interest of investors and ensuring fairness of
capital markets through day-to-day regulation issues.
ARGUEMENTS: Arguments focused on the applicability of the five criteria for such an
analysis that were previously identified in General Motors of Canada Ltd. v. City National
Leasing. Federal Govt. argued this is of national concern.
HELD: Court looked at the pith and substance of the law. Court held that a cooperative
approach should be adopted and only when genuine national concerns are involved,
then federal government has powers. Proposed Act is not valid under the general
branch of the federal power to regulate trade and commerce. It focused on the day-today regulation of all aspects of contracts for securities within the provinces.
Therefore, Pith and substance of securities industry regulation is a matter of property and
civil rights.
TOPIC# 7 POGG (PEACE ORDER AND GOOD
GOVERNMENT) - Federal Govt’s Power
The Peace, Order and Good Government Clause in the preamble to s. 91 is a residual
federal power.
18
Opening words of Sec 91: “To make laws for the Peace, Order and Good Government of
Canada, in relation to all matters not coming within the classes of subjects by this Act
assigned exclusively to the Legislatures of the provinces”
Any area of law that doesn’t specifically come under the provincial head= Federal
Courts would look at the pith and substance of the law to decide if it would be a federal
power of POGG or not (so that we are not granting everything automatically to the federal
heads).
Case law has given content to the POGG power in four ways:
1. GAPS in the enumerated heads of power- things that drafters forgot to think about.
•
Incorporation of companies with objects other than provincial assigned to POGG-s.
92(11) gives the provinces the power to incorporate companies with provincial objects,
but no express provision in sec 91;
•
POGG fills gap of federal powers to enter into treaty as international person;
2. NEW SUBJECTS developed since 1867 that are matters of national concern and cannot
be put in matters of merely local or private nature
(i.e., aeronautics, radio communication, Inflation);
3. NATIONAL CONCERN- matters that although originally matters of a local concern, have
since, in the absence of national emergency, become matters of National Concern (i.e.,
environment) and
4. NATIONAL EMERGENCIES.
However, most cases are decided on the basis of one of two branches:
1. National Concern: if matter of a legislation goes beyond local and provincial concern or
interest and must from its inherent nature be the concern of the Dominion as a whole.
Must be of significance to all parts of Canada.
In upholding federal jurisdiction over marine pollution under this branch, Le Dain
J. in R. v. Crown Zellerbach Canada, [1988] S.C.R. set out five requirements for a
matter to qualify as a matter of national concern. It must have a
(1) singleness
(2) distinctiveness - clearly distinguishes it from matters of provincial concern
(3) indivisibility
(4) the failure of one province to enact effective regulation would have adverse effects on
interests exterior to the province, and
19
(5) the scale of impact on the provincial jurisdictions is reconcilable with the fundamental
distribution of legislative power under the Constitution.
2. Emergency Branch:
Early case law held the federal government had to prove that the emergency, like war or
famine, was of such necessity and the circumstances were so highly exceptional that the
federal government had to regulate the matter in question in order to maintain the law,
order and safety of the Dominion as a whole.
With the Court’s decision in Reference re Anti-Inflation Act, [1976] S.C.R. even
peacetime legislation can now be upheld under this branch as long as the law is
temporary and there is some rational basis for the emergency legislation (e.g. regulation
of inflation on the ground that it poses a considerable economic problem for Canada).
Thus, two tests need to be met for Emergency Branch:
1. The scheme was temporary
2. Rational basis exist for finding an emergency
It is not necessary for the federal government to issue a declaration that the legislation
was in response to a national emergency.
Emergency cases:
•
Ensure order in Canada (Russell v Queen)
•
War or famine
•
Apprehended rebellion
•
Inflation
•
Emergency cases of property, prices, wages- hoarding, prices and profits
IRAC FOR TOPIC 7
First make an issue(s) like this
Issue No 1: whether____ (act) is intra vires/ultra vires the Parliament?
Rules:
S. 91 (opening words)
Case--R v Crown Zellerbach Canada, 1988;
Reference re Anti-Inflation Act, [1976];
20
References re Greenhouse Gas Pollution Pricing Act, 2021 SCC
Analysis of issue No 1:
•
Discuss the pith and substance doctrine
•
Discuss colourability
•
Discuss Incidental Effect
•
Eliminate related head of power
•
Assign head of power
•
Discuss relevant cases
•
Conclusion
•
Discuss IJI
•
Discuss Paramountcy
•
Discuss Double Aspect
Discuss other issues you may have highlighted above and follow the same sequence in
issue 1
If you know the relevant doctrine make it your next issue and discuss it. If not discuss
relevant doctrines (eliminate closely related doctrines)
Other important case law:
R v Crown Zellerbach Canada, 1988-(Previous )
In upholding federal jurisdiction over Federal Ocean Dumping Control Act i.e. MARINE
POLLUTION under this branch, Le Dain J. S.C.R. set out five requirements for a matter
to qualify as a matter of national concern. It must have a
(1) singleness,
(2) distinctiveness-that clearly distinguishes it from matters of provincial concern
(3) indivisibility,
(4) the failure of one province to enact effective regulation would have adverse effects on
interests exterior to the province PROVINCIAL INABILITY TEST, and
(5) the scale of impact on the provincial jurisdictions is reconcilable with the fundamental
distribution of legislative power under the Constitution
21
Syllabus case Topic 7
Reference re Anti-Inflation Act, [1976] S.C.R
The Anti-inflation act touching upon wage and price control (which are matters within
property and civil rights) was in question here. As per the court, the POGG power
performs two separate functions:
1. it gives federal parliament permanent jurisdiction over distinct subject matters
which do not fall u/s 92 and are of national concern.
2. POGG power gives federal parliament temporary jurisdiction over emergency matters
– Emergency doctrine operates as a partial and temporary alternation of DOP
between power between Parliament and provincial legislatures
Thus, with the Court’s decision in Reference re Anti-Inflation Act, [1976] S.C.R. even
peacetime legislation can now be upheld under this branch as long as the law is
temporary and there is some rational basis for the emergency legislation. It is not
necessary for the federal government to issue a declaration that the legislation was in
response to a national emergency.
References re Greenhouse Gas Pollution Pricing Act, 2021
SCC
Parliament passed the Greenhouse Gas Pollution Pricing Act in 2018, based on the
consensus that greenhouse gas emissions contribute to global climate change. Countries
around the world committed to drastically reduce their greenhouse gas emissions under
the 2015 Paris Agreement. In Canada, the federal government passed the Act to
implement its commitments.
The said Act established national standards for a carbon price. (Note: Carbon Pricing in
Canada is implemented either as a regulatory fee or tax levied on the carbon content of
fuels at the Canadian provincial, territorial or federal level. Provinces and territories of
Canada are allowed to create their own system of carbon pricing as long as they comply
with the minimum requirements set by the federal government; individual provinces and
territories thus may have a higher tax than the federally mandated one but not a lower
one)
The majority of the judges in the said case held that the Greenhouse Gas Pollution
Pricing Act to be constitutional as the global warming causes harm beyond
provincial boundaries and that it is a matter of national concern under the “peace,
order and good government” clause of the Constitution.
The Court further noted that the Act would only apply where provincial or territorial
pricing systems are not strict enough to reduce global warming.
22
TOPIC# 8 CRIMINAL LAW- FEDERAL GOVT’S
POWER
A. Federal Power under Sec 91 (27): The Criminal Law, except the Constitution of Courts
of Criminal Jurisdiction, but including the Procedure in Criminal Matters.
TEST for Criminal Law: A valid criminal law should meet the following test.
1. A criminal law must have a valid criminal law purpose.
2. backed by a prohibition
3. a penalty.
3 “P” test- Margarine Reference case
What is valid purpose -Valid purposes include the promotion of public peace, order,
security, health, morality and other legitimate public purposes like protecting the
environment.
R. v. Hydro-Québec [1997] 3 S.C.R. 213: The Court held that the Canadian
Environmental Protection Act (Federal Law), a law for the purpose of protecting the
environment, constituted criminal law and was upheld as valid federal legislation- The law
should be directed against some evil, injurious or undesirable effect upon the public’s
social, economic or political interests.
Some instances of Criminal Law power of Federal government:
•
Food and Drugs:
•
Illicit Drug:
•
Tobacco: in RJR MacDonald v Canada: Federal tobacco products control act imposing
prohibition on advertising (though advertising falls under provincial power) was a valid
federal criminal law. Public Purpose= safeguarding public form dangerous products.
•
Assisted Human Reproduction: Re Assisted Human Rights Reproduction Act
(2010)
•
Competition: P.A.T.A case: Criminal law power was able to expand into the commerce
world.
•
Sunday Observance Law: R v Big M Drug Mart case; Lieberman v The Queen
•
Gun Control: Re Firearms Act (2000) 1 SCR 783 SC held that act was valid exercise of
criminal law power as it met the 3 P test as under:
-Purpose of law: public safety, restrict and control access to dangerous objects
23
-Prohibition
-Penalty
Provincial Power is valid and Federal is incidental
Schneider v The Queen
B. Provincial power to enact penal laws sec 92 (15): The Imposition of Punishment by
Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to
any Matter coming within any of the Classes of Subjects enumerated in this Section i.e.
power for Regulatory Offences- quasi criminal offences.
A valid provincial law can have ancillary penal laws and is considered valid. But
when the provincial law is in pith and substance criminal (i.e. purpose, prohibition and
penalty) it is not a valid provincial law.
Chatterjee v Ontario: confiscation of cash and chattels under the Civil Remedies Act
was a law in relation to property and civil rights as its pith and substance was to discharge
a person of financial gains acquired via unlawful activities.
92(14)- The Administration of Justice in the Province, including the Constitution,
Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal
Jurisdiction, and including Procedure in Civil Matters in those Courts.
IRAC FOR TOPIC 8
First make an issue(s) like this
Issue No 1: whether ___________ (act) is intra vires/ultra vires the legislature
Rules:
S. 91(27) or 92(15)
Reference re Firearms Act (Can) [2001]
Margarine Reference [1949]
Reference re Assisted Human Reproduction Act, 2010
Reference re Genetic Non-Discrimination Act, 2020 SCC 17
Reference re Validity of Section 5 (a) Dairy Industry Act, [1949] SCR 1 (also known as
Margarine reference case)
Analysis of issue No 1:
24
•
Discuss the pith and substance doctrine
•
Discuss colourability
•
Discuss Incidental Effect
•
Eliminate related head of power
•
Assign head of power
•
Discuss relevant cases
•
Conclusion
•
Discuss IJI
•
Discuss Paramountcy
•
Discuss Double Aspect
Discuss other issues you may have highlighted above and follow the same sequence in
issue 1
If you know the relevant doctrine make it your next issue and discuss it. If not discuss
relevant doctrines (eliminate closely related doctrines
Conclusion
Other important case laws
Reference re Assisted Human Reproduction Act, 2010 SCC
61, [2010] 3 SCR 457
FACTS: The Federal govt under its criminal power enacted the Assisted Human
Reproduction Act to regulate the practices and technologies associated with assisted
human reproduction.
ISSUE: Whether sections 8 to 19, 40 to 53, 60, 61 and 68 of the Assisted Human
Reproduction Act, S.C. 2004, c.2, ultra vires the Parliament of Canada in whole or in part
under the Constitution Act, 1867?
HELD: McLachlin CJ stated the matter of the statutory scheme, viewed as a whole, is
a valid exercise of the federal power over criminal law because the dominant purpose
and effect of the legislative scheme was to safeguard morality, public health and personal
security of donors, donees and persons not yet born (i.e. to prohibit practices that would
undercut/weaken moral values associated with human reproduction). However, Justice
Lebel/Deschamps regarded MOST OF THE ACT AS COLOURABLE.
The absolute prohibitions in the Act were upheld as criminal law (as there was valid
purpose, prohibition and penalty) while the qualified prohibitions (I.e. regulatory or license
25
requirement were under provincial jurisdiction under hospitals, medical profession,
property and civil rights) were struck down.
SYLLABUS CASE TOPIC 8 – CRIMINAL LAW
Margarine Reference (Reference re Validity of Section 5 (a)
Dairy Industry Act [1949] S.C.R 1)
FACTS: “Pro butter” dairy farmers created a law prohibiting margarine i.e banned
manufacture, importation and sale of margarine. “Margarine is not butter” and stated
margarine is a health concern. This case deals with a prohibition (instead of a regulation)
ISSUE: In this case, the Supreme Court of Canada was asked to assess the
constitutional validity of a federal government statute that prohibited the import,
manufacture, and sale of margarine in Canada.
HELD: The Supreme Court of Canada held that while the prohibition on the import of
margarine was intra vires the federal government, the restrictions on the sale and
manufacture of margarine was ultra vires the federal government.
The purpose of the law was economic of shielding an industry from competitors and was
not a public purpose.
Reference re Firearms Act (Can) [2001] 1 SCR 783
FACTS: The Government of Canada wanted to bring in a firearms registry i.e. Firearms
Act. The Government of Alberta claimed that the matter falls outside of federal jurisdiction
because it deals with private property (guns=property) and thus is a matter of provincial
jurisdiction.
ISSUE: Whether the regulation of firearms is considered criminal law, and therefore
should fall under federal jurisdiction?
HELD: The 'Act satisfied all the 3 P’s: its purpose was clear [public safety, restrict and
control access to dangerous objects], and the purpose created prohibitions on gun
possession, and these prohibitions were backed by penalties. Therefore, the Firearms
Act is criminal law, which falls under s.91(27) of the Constitution Act, 1867 and is federally
regulated.
Reference re Genetic Non-Discrimination Act, 2020 SCC 17
FACTS: Parliament passed the Genetic Non-Discrimination Act to make rules on genetic
testing related to diseases. It made it a crime to force someone to get genetic testing, or
share their results, to sign a contract or buy something. Individuals and corporations
26
cannot force individuals to take genetic tests or disclose genetic test results as a condition
of obtaining access to goods, services and contracts; cannot refuse an individual access
to goods, services and contracts because they have refused to take a genetic test or
refused to disclose the results of a genetic test; and cannot use individuals’ genetic test
results without their written consent in the areas of contracting and the provision of goods
and services. Parliament also made it a crime to collect, use, or share the results of
someone’s genetic tests without their permission. Anyone breaking the rules could be
fined up to $1 million or put in jail for up to five years, or both.
ISSUE: Whether the Parliament (Federal Government) was competent to enact such laws
as it is the provincial legislatures that is empowered to make laws about property and civil
rights (which includes laws about buying and selling goods and services.)
HELD: The Court held that the Act passed by Federal Government is valid as Parliament
is competent to pass such act basis power granted under 91(27) of Constitution Act. The
Act passed was in relation to combating genetic discrimination and protecting health, and
that Parliament t had the power to make the rules because this fell under criminal law.
The pith and substance of the challenged law is to protect individuals’ control over their
detailed personal information disclosed by genetic tests. The purpose for this was to
address Canadians’ fears that their genetic test results will be used against them and to
prevent discrimination based on that information. This matter is properly within
Parliament’s power over criminal law. The provisions are supported by a criminal law
purpose because they respond to a threat of harm to several overlapping public interests
traditionally protected by the criminal law – autonomy, privacy, equality and public health.
The rules were about protecting health by making sure people had control over their
genetic information, and that Parliament had the power to make the rules because this
fell under criminal law.
27
TOPIC#9 – ANCILLARY POWERS
The doctrine of ancillary power enables a validly enacted law that is classified as “in
relation to” a matter within the competence of the enacting body to have incidental or
ancillary effects on matters outside the competence of the enacting body .
In General Motors v. City National Leasing (1989), it was held that the Court must assess
the degree and extent of encroachment of a legislative scheme on the realm of power of
the other government and then the Court must establish how vital and necessary the
impugned provision is to the otherwise valid legislative scheme.
The ancillary powers doctrine enables one level of government to enact provisions that,
although encroaching on the other level of government on the basis that it comprises a
significant and vital portion of a broader legislative scheme that happens to lie within its
scope of competency of other level of government. The said doctrine can be used to
justify the validity of a law that substantial impacts a head of power not within its
jurisdiction/division (enumerated list).
SYLLABUS CASES FOR TOPIC-9
General Motors v. City National Leasing (1989)
In the said case, the Federal Government had enacted Federal Competition Act, 1975
and had introduced a civil remedy in the said Act. The said Act was challenged on the
basis that it is only provincial legislature that can enact civil remedies and federal
government is not competent to introduce it in legislation.
It was held by the Court that the Federal Government has the power under the general
branch of the trade and commerce power to enact regulation of intraprovincial trade
(federal can regulate provincial trade). The introduction of civil remedy in the Act is merely
incidental in nature as the vital aim was to govern inter-provincial and intra-provincial
trade and not to enact civil remedy.
Quebec (Attorney General) v Lacombe, 2010 SCC 38, [2010] 2
SCR 453
One of the municipal by-law in the province of Quebec prohibited the use of lakes as
aerodromes. Basis the power under Property and Civil Rights, the zoning of land use falls
under the provincial head of power. The said by-law was challenged on the basis that it
is enacting laws on aeronautics which falls under the ambit of Federal Government and
not provincial government.
28
Supreme Court held that the purpose of by-law was in relation to aeronautics not zoning.
As such, the by-law was said to be ultra vires and was struck down. The by-law was
deemed to be outside provincial (and municipal) competence.
TOPIC # 10 – PARAMOUNTCY
What Is Paramountcy Doctrine
Insofar as there is no conflict. But where the federal regime is meant to be exclusive and
there is actual conflict, the federal legislation will prevail according to the paramountcy
doctrine. Law Society of British Columbia v. Mangat 2001 SCC , [2001] Alberta (Attorney
General) v. Moloney, 2015; Saskatchewan (Attorney General) v. Lemare Lake Logging
Ltd., 2015 SCC . The first step, when considering a potential conflict, is to confirm that
the “overlapping federal and provincial laws are independently valid.” If so, does their
concurrent operation create a conflict? Alberta (Attorney General) v. Moloney, 2015 SCC.
There are two branches of the paramountcy test, meaning, two possible ways a conflict
may be found: “(1) there is an operational conflict because it is impossible to comply
with both laws” (i.e., one says “yes” and the other says “no”), or “(2) although it is possible
to comply with both laws, the operation of the provincial law frustrates the purpose of
the federal enactment”: Alberta (Attorney General) v. Moloney, 2015 SCC. Provincial laws
imposing stricter limits on advertising of tobacco products than those contained in federal
law are consistent with federal purposes and thus do not attract the paramountcy doctrine:
Rothmans Benson & Hedges Inc. V. Saskatchewan, 2005 SCC 13, [2005] 1 S.C.R.
188.
SYLLABUS CASES FOR TOPIC-10
Rothmans, Benson & Hedges Inc v Saskatchewan [2005] 1
SCR 188
FACTS: The respondent company sought a declaration that s. 6 of the
Saskatchewan Tobacco Control Act which bans the display of tobacco products in
premises is, by virtue of the paramountcy doctrine, inoperative in light of s. 30 of the
federal Tobacco Act which allows retailers to display tobacco and tobacco productrelated brand elements and post signs indicating the availability and price of tobacco
products
HELD: The court held, while s. 6 bans all advertising, display and promotion of tobacco
or tobacco-related products in any premises in which persons under 18 years of age are
permitted. The provincial legislation is not inoperative by virtue of the paramountcy
doctrine.
29
There is no inconsistency between s. 6 of The Tobacco Control Act and s. 30 of
the Tobacco Act. First, a retailer can easily comply with both provisions in one of two
ways: by admitting no one under 18 years of age on to the premises, or by not displaying
tobacco or tobacco-related products.
Source: https://nsbs.org/bar-review-material
NOW THE DOCTRINES IN DETAIL
What is the concept of division of powers?
*First read section 91 and 92 of the CA 1867.
*This material can be used in all questions in DOP.
The federal nature of the Constitution means political power is shared between two orders
of government, each autonomous in developing laws within their respective spheres of
jurisdiction. These powers are assigned by ss. 91-95 of the Constitution Act, 1867.
Note: In DOP question in exam, before labelling any legislation provincial or federal, you
have to apply relevant doctrines to the situations. These doctrines are summarized below.
Apply them on the facts of the questions. Please do not copy and paste these doctrines,
rather merge them with the facts of the case, i.e. application of these rules is mandatory
on the facts of the case.
What are those doctrines?
Pith and substance analysis
Colourability
Incidental effect
Double aspect
Paramountcy
Inter-jurisdictional immunity
Pith and Substance doctrine
Pith and substance analysis mean identifying the most important or dominant aspect of
the challenged law. P & S analysis requires a two-part analysis.
The two-part “pith and substance” analysis determines whether a law falls within the
legislative competence of the legislature that enacted it. While doing pith and substance
analysis, we have to do following two things.
1. What is the essential character of the law? (dominant aspect of the law)
2. Does that character relate to an enumerated head of power granted to the legislature in
question by the Constitution Act, 1867?
30
3. For determining P & S analysis, we have to examine the purpose and the legal effect of
the impugned law to determine its true character. This includes looking at the mischief
the legislation is directed at, the words used in the impugned legislation and the
circumstances surrounding its enactment
* Discussion of above three points is mandatory in exam. Following points are just extra
points for your consideration, in case any one of them is applicable to the situation.
Some more points about pith and substance
•
The pith and substance analysis must be conducted before considering “the
doctrines of inter-jurisdictional immunity and federal paramountcy, both of which are
predicated on the constitutional validity of the impugned statute or measure”: Rogers
Communications Inc v Châteauguay (City), 2016 SCC.
Validity of law under more than one head
•
A law can be valid under more than one provincial power (Attorney General of
Quebec v.
Kellogg's Co. of Canada, [1978] 2 S.C.R. upholding provincial advertising legislation
under s.
92(13),(16) and s. 93) or more than one federal power (Thomson Newspapers v. Canada,
[1990] 1 S.C.R. 425 upholding the federal Combines Investigation Act under s. 91(2) and
(27)).
Concept of constitutionality
•
When a law is challenged for lack of legislative competence, there is a legal
presumption of constitutionality. “When faced with two plausible characterizations of a
law, we should normally choose that which supports the law's constitutional validity.”
Siemens v. Manitoba 2003 SCC 3, [2003] 1 S.C.R. 6 at ¶33, finding that a provincial law
regulating gaming was intra vires.
Amorphous topics
•
Some subjects can’t be assigned to a specific constitutional head but are instead
amorphous topics which can be addressed by either valid federal or provincial
legislation depending on the nature of the problem addressed. Amorphous topics
include: health – Schneider v. British Columbia, [1982] 2 S.C.R. 112 (provincial statute
providing for compulsory treatment of heroin addicts) and RJR-MacDonald v. Canada
(A.G.), [1995] 3 S.C.R. 199 (federal tobacco advertising laws); the environment – Friends
of Oldman River Society v. Canada, [1992] 1 S.C.R. 3 at ¶96; and language – Devine v.
Quebec, [1988]
Validity of both laws
31
•
The heads of power should be construed in relation to one another. In cases where
federal and provincial classes of subjects contemplate overlapping concepts, meaning
must be given to both through the process of “mutual modification.” Citizens’ Insurance
Co. of Canada v. Parson (1881), 7 App. Cas. 96 (P.C.), reconciling the federal power over
trade and commerce in s. 91(2) with the provincial powers over property and civil rights
and local matters in s. 92(13), (16).
•
Classes of subjects should not be construed so broadly as to expand jurisdiction
indefinitely. Courts are sensitive to maintaining the balance of Canadian federalism.
Reference re Firearms Act, 2000 SCC 31, [2000] 1 S.C.R. 783; Ward v. Canada 2002
SCC 17, [2002] .
2. What is Colourability doctrine?
The “colourability doctrine” in the distribution of powers is invoked when a law looks as
though it deals with a matter within the enacting body’s jurisdiction, but in essence is
addressed to a matter outside the enacting body’s jurisdiction. R. v. Morgentaler, [1993];
Quebec (Attorney General) v. Canada (Attorney General), 2015
3. What is Incidental effect doctrine? (Discussed in previous topic, i.e. ancillary power
doctrine-Topic-9)
•
The pith and substance doctrine enable a law that is classified as “in relation to” a matter
within the competence of the enacting body to have an incidental or ancillary effect on
matters outside the competence of the enacting body. Provincial and federal governments
have equal ability to legislate in ways that incidentally affect the other government's
sphere of power. General Motors of Canada v. City National Leasing, [1989]
•
Where a law encroaches on the other government's sphere of power, the Court must
decide whether the effects are just incidental, in which case they are constitutionally
irrelevant, or whether they are so substantial that they show that the law is mainly, or in
pith and substance, in relation to a matter outside the enacting body’s jurisdiction.
Reference re Firearms Act, 2000 SCC finding that the effect of the federal gun registry
law on property and civil rights is incidental.
4. What is Double aspect doctrine?
Subjects which in one aspect and for one purpose fall within s. 92, may in another aspect
and for another purpose fall within s. 91. Hodge v. The Queen (1883) 9 App. Cas. 117
(P.C.).
Example where this doctrine is triggered
• When an impugned law has both provincial and federal features, and if both the federal
and provincial features are of equal importance, the court will find concurrent jurisdiction
and the challenged provisions could be enacted by either the federal or provincial
governments. (Multiple Access v. McCutcheon, [1982] finding that the federal and
32
provincial characteristics of insider trading legislation were roughly equal in importance
so there was little reason “to kill one and let the other live”.
Example where this doctrine is not triggered
• There was no double aspect in Rogers Communications Inc v Châteauguay (City), 2016
SCC 23, where a municipal measure was passed for the purpose of preventing Rogers
from installing a radio communication antenna system on particular property in the city.
Radio communication is under federal jurisdiction, so the municipal measure was ultra
vires. There was no equivalent provincial aspect (e.g., protecting health and well-being,
or promoting harmonious municipal development) that could give the measure a double
aspect and render it constitutional.
5. What is Paramountcy doctrine? (Discussed above in Topic-10)
•
Where federal and provincial statutes both regulate a concurrent subject matter,
both statutes can coexist insofar as there is no conflict. But where the federal regime is
meant to be exclusive and there is actual conflict, the federal legislation will prevail
according to the paramountcy doctrine. Law Society of British Columbia v. Mangat 2001
SCC; Alberta (Attorney General) v. Moloney, 2015 SCC; Saskatchewan (Attorney
General) v. Lemare Lake Logging Ltd., 2015 SCC
•
The first step, when considering a potential conflict, is to confirm that the
“overlapping federal and provincial laws are independently valid.” If so, does their
concurrent operation create a conflict? Alberta (Attorney General) v. Moloney, 2015 SCC
51 at para 17.
Two branches of paramountcy
•
There are two branches of the paramountcy test, meaning, two possible ways a
conflict may be found:
“(1) there is an operational conflict because it is impossible to comply with both laws”
(i.e., one says “yes” and the other says “no”), or
“(2) although it is possible to comply with both laws, the operation of the provincial law
frustrates the purpose of the federal enactment”: Alberta (Attorney General) v. Moloney,
2015 SCC
Example of paramountcy doctrine (not invoked here)
Provincial laws imposing stricter limits on advertising of tobacco products than those
contained in federal law are consistent with federal purposes and thus do not attract the
paramountcy doctrine: Rothmans Benson & Hedges Inc. V. Saskatchewan, 2005 SCC
13, [2005].
6. What is Inter-jurisdictional immunity doctrine?
33
“The doctrine of inter-jurisdictional immunity protects the ‘core’ of a legislative head of
power from being impaired by a government at the other level”: Rogers Communications
Inc v Châteauguay (City), 2016 SCC)
(Discussed in detail in next topic, i.e. Topic 11)
TOPIC # 11 – INTERJURISDICTIONAL IMMUNITY
The doctrine of inter-jurisdictional immunity protects the ‘core’ of a legislative head of
power from being impaired by a government at the other level”: Rogers Communications
Inc v Châteauguay (City), 2016 SCC)
Two step analysis
The first question is whether the impugned statute or measure “trenches on the ‘core’ of
a power of the other level of government”; if so, the second question is “whether the effect
of the statute or measure on the protected power is sufficiently serious to trigger the
application of the doctrine.”
Some more points about the doctrine
•
The cases on inter-jurisdictional immunity have applied the doctrine to render inapplicable
a provincial law if it would have an effect on a federal matter – federally incorporated
companies, federally regulated undertakings, federal entities – that is inconsistent with
the scope of power assigned to the federal government. In theory, it also applies to protect
provincial matters from federal laws. The possibility for the province to rely on the doctrine
was left open in Canada (Attorney General) v. PHS Community Services Society, [2011]
•
The doctrine is premised on the idea that there is a “basic minimum and unassailable
content to the heads of power under sections 91 and 92 of the Constitution Act, 1867.
Limited application
In Rogers Communications Inc v Châteauguay (City), 2016 SCC 23, the Supreme Court
held (at para 61) that the doctrine will “generally” only be applied in “situations that are
already covered by precedent.”
Difference between impaired and affected
•
Even assuming the area is covered by precedent, the doctrine will only apply if the federal
undertaking/entity would be “impaired” as opposed to merely “affected” by the
application of a provincial law. Canadian Western Bank v. Alberta, 2007 SCC. In this
case, provincial laws regarding insurance (a provincial matter) applied to banks (a
federally regulated business) because insurance promotion was not at the core of banking
and did not constitute a vital part of the banking business.
Health is concurrent jurisdiction
34
•
“Health is an area of concurrent jurisdiction; both Parliament and the provinces may
validly legislate on the topic.” The provincial power over health does not prevent the
federal criminal law from applying in health-related areas (PHS Community Services,
supra) nor does it prevent the federal government from legislating on the topic of
physician-assisted dying: Carter v. Canada (Attorney General), 2015 SCC.
Interjurisdictional immunity claims failed in both PHS and Carter.
IJI is applicable in this case
The location of radio communication antenna systems (for cellular telephone networks)
is part of “the core of the federal power over radio communication.” A municipal measure
purporting to determine where such a system could be located had a sufficiently serious
effect on the federal power to trigger the doctrine and render the municipal measure
inapplicable: Rogers Communications Inc v Châteauguay (City), 2016 SCC.
SYLLABUS CASES FOR TOPIC-11
Canadian Western Bank v. Alberta, 2007 SCC.
In this case, provincial laws regarding insurance (a provincial matter) applied to banks (a
federally regulated business) because the insurance promotion was not at the core of
banking and did not constitute a vital part of the banking business.
Quebec (Attorney General) v Canadian Owners and Pilots
Association, 2010 SCC 39,[2010] 2 SCR 536
The issue in the case was whether the provincial law, which stipulated specific regions as
agricultural zones within the provinces which could not be utilized for non-agricultural
purposes, could ban the operation of an airstrip (aeronautics) on land zoned as
agricultural.
The Court applied the IJI doctrine to conclude that the provincial law was valid in nature
as province can enact law on land use planning and agriculture. However, the Court also
stated that the provincial law was “inapplicable to the extent that it prohibits aerodromes
in agricultural zones” as location of aerodromes was “essential” to the federal power over
aeronautics and was therefore within the “core” of the power.
PART 3:
35
ABORIGINAL RIGHTS AND THE CONSTITUTION
(TOPIC 12-16)
TOPIC # 12 - Introduction
Section 91(24) of the Constitution Act, 1867 confers upon the federal Parliament the
authority and power to make laws in relation to “Indians, and Lands reserved for the
Indians”
Section 35 of Constitution Act of 1982 provides constitutional protection to “the existing
aboriginal and treaty rights of the aboriginal peoples of Canada”. Thus, it offers
constitutional protection to rights created by treaties entered into with Indian tribes or
bands and even maybe rights established by provisions in international treaties.The said
provision provides constitutional status to aboriginal and treaty rights. It is applicable to
federal and provincial laws.
Section 25 provides that the Charter of Rights is not to be interpreted as derogating from
“aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of
Canada”. The said provision does not create any new rights, rather it protects Aboriginal
rights, title, etc. in situations wherein other groups may claim that there is discrimination
TOPIC# 13 – ABORIGINAL RIGHTS
SHORT QUESTIONS & ANSWERS
Q. 1. What is the Test for Aboriginal Right?
The Supreme Court of Canada in R. v. Van der Peet, [1996] established a set of criteria
to identify Aboriginal rights. In essence, criteria for the identification of Aboriginal rights
included, identifying all three
1. Precise nature of the activity,
2. Activity must have been “an integral part of the specific distinctive culture” and
3. existed prior to contact with Europeans.
HOW TO DO ANALYSIS IN THE EXAM ,
36
Now apply it on exam facts, see whether Tom’s activity is of precise nature. Whether
Tom’s activity is integral part of his culture. And whether he has been practising this
activity. Application of above test on facts is mandatory.
Q.2. Can Aboriginals rights be infringed? (Limitations upon rights)
Although the Constitution Act, 1982, through s. 35, protects existing Aboriginal rights and
Treaty rights, these rights are not absolute. The Crown, including both federal and
provincial legislators, may make laws, and their representatives may make decisions
acting within their respective authorities. In some instances, these activities may infringe
on Aboriginal rights and Treaty rights and, in such instances, once the Aboriginal group
has proven a right and an infringement, the Crown must then justify that infringement or
limitation.
Q.3. What is the Test for Infringement of Aboriginal right?
Infringement of a s. 35 right occurs where “the legislation in question has the effect of
interfering with an existing aboriginal right” (R. v. Sparrow, [1990] or where there has been
a “meaningful diminution” of the right, which “includes anything but an insignificant
interference with that right” (R. v. Morris, 2006 SCC.
Q.4. What is the three-Part Test for infringement of Aboriginal right?
Once a prima facie infringement has been established, the onus shifts to the Crown to
demonstrate either that it has the consent of the Aboriginal rights holders, or that the
interference is justifiable. Justification requires the Crown to meet a three-stage test
articulated by the Supreme Court in Sparrow and re-stated in Tsilhqot’in. To justify the
infringement, the Crown must show:
1) That it discharged its procedural duty to consult and accommodate,
2) That its actions are backed by a compelling and substantial government objective and
3) That the government’s actions are consistent with the Crown’s role as a fiduciary
toward Aboriginal people.
SYLLABUS CASES FOR TOPIC-13
R v Van der Peet [1996] 2. S. C R 507
37
FACTS: Dorothy Van der Peet, a member of the Stó:lō Nation, was charged for selling
ten salmon that Charles Jimmy (her common-law husband) and his brother Steven had
caught under their native food fishing licence. Under the licence Jimmy was forbidden
from selling his catch.
ISSUE: Does the Fisheries Act denying the aboriginal right to sell fish unjustifiably under
s.35(1) of the Constitution Act 1982?
HELD: The court held that there is no ‘existing’ right for Aboriginal people to sell fish
commercially and In order to be an aboriginal right an activity must be an element of a
practice, custom or tradition integral to the distinctive culture of the aboriginal group
claiming the right.
R v Sparrow
It was contended that s.35(1) rights are more securely safeguarded than Charter rights,
and therefore any infringement or violation is automatically of no force or effect, as there
is no similar &reasonable limits as mentioned in s. 1.
The Court, however, states that legislation affecting the exercise of aboriginal rights will
be valid if it meets a test of justification, which arises from the fiduciary relationship. The
Court laid down a three part test for the Crown to justify the infringement, as outlined
below:
1) That it discharged its procedural duty to consult and accommodate,
2) That its actions are backed by a compelling and substantial government objective and
3) That the government’s actions are consistent with the Crown’s role as a fiduciary
toward Aboriginal people
R v Powley
The case law emphasized that even the non-status Indians, as well as the Inuit (or
Eskimo) and Metis peoples would be included in the ambit of “Indian, Inuit and Metis
peoples of Canada” as mentioned in Section 35 of CA 1982. The Court laid down a three
part test, as outlined below, to establish who is Metis for the purpose of asserting a claim
under s.35
1. Must self-identify as a member of a Metis community
2. Must trace his ancestry to a historic Metis community
3. Must be a member of and participant in the modern Metis communi
38
TOPIC#14 – ABORIGINAL TITLE
SHORT QUESTIONS & ANSWERS
Q.1. What is the Test for Aboriginal Title?
Aboriginal title is a subset of Aboriginal rights. It is a right in the land itself – not just the
right to hunt, fish and gather from it. It therefore requires a different test for identification.
Delgamuukw v. British Columbia, [1997] requires the claimant to establish
1.
exclusive use and
2.
occupation of the territory (Tsilhqot’in Nation extended scope of aboriginal title)
3.
“at the time of assertion of British sovereignty.”
Q. 2. What happens if the aboriginal title has been established and govt. wants any
development on aboriginal land?
The Court held that once Aboriginal title is established by a court declaration or
agreement, the Crown must seek the consent of the title-holding Aboriginal group before
approving developments on their land.
Absent consent, development of title land cannot proceed unless the Crown satisfies the
demanding test for justifying infringement of Aboriginal title
Q. 3. What is the Test for breach of Aboriginal Title?
1. The incursion must be necessary to achieve the government’s goal (rational
connection);
2. The government must go no further than necessary to achieve it (minimal impairment);
3. The benefits that may be expected to flow from that goal must not be outweighed by
adverse effects on the Aboriginal interest (proportionality of impact).
SYLLABUS CASE LAW
Tsilhqot’in Nation v British Columbia [2004] SCC 44
FACTS: The BC government issued a license to harvest trees in the Appellant’s territory.
The Appellant objected to the project which led to negotiations with BC. Negotiations
came to no result. The Appellants then sued BC and claimed for Aboriginal Title.
39
ISSUES: Is Aboriginal Title established? What rights does AT confer? Did BC breach its
Duty to Consult?
HELD: Court ruled that the Tsilhqot'in did have a claim of Aboriginal title to the territory
they had historically occupied.
TOPIC#15 – TREATY RIGHTS
SHORT QUESTIONS & ANSWERS
Q-1. What Are Treaty Rights?
1. Treaties represent an exchange of solemn promises between the Crown and the
various Indian Nations.
2. The honour of the Crown is always at stake. The Crown must be assumed to intend to
fulfil its promises. No appearance of “sharp dealing” will be sanctioned.
3. Any ambiguities or doubtful expressions in the wording of the treaty must be resolved
in favour of the Indians. Any limitation of rights must be narrowly construed.
4. The onus of establishing strict proof of extinguishment of a treaty or aboriginal right lies
upon the Crown.
Q-2.How to interpret Treaties:
“the words in the treaty must not be interpreted in their strict technical sense nor subjected
to rigid modern rules of construction. Rather, they must be interpreted in the sense that
they would naturally have been understood by the Indians at the time of the signing.”
Moreover, “the verbal promises made on behalf of the federal government at the times
the treaties were concluded are of great significance in their interpretation.”
R v Marshall says to interpret treaties in favour of Aboriginals
In R. v. Marshall, [1999] S.C.R. (Marshall 1), the Supreme Court of Canada added the
following principles for interpreting treaties. First, extrinsic evidence is available to show
that a written docment does not include all of the terms of the agreement. Second,
extrinsic evidence of historical and cultural context of a treaty may be received even if the
treaty document purports to contain all of the terms, even absent any ambiguity on the
face of the treaty. Third, where a treaty was concluded orally and afterwards written up
by representatives of the Crown, it would be unconscionable for the Crown to ignore the
oral terms while relying on the written ones.
40
R v Marshall [1999] 3 SCR 456
FACTS: A Mi’kmaq Indian, was charged with three offences set out in the federal fishery
regulations: the selling of eels without a licence, fishing without a licence and fishing
during the close season with illegal nets. **The Marshall cases arose out of the aftermath
of the Supreme Court’s decisions in Marshall 1 and Marshall 2. In those decisions, the
Supreme Court held that “peace and friendship” treaties entered into between the British
and the Mi’kmaq in 1760 and 1761 conferred on the Mi’kmaq the treaty right to engage in
commercial fishing activities sufficient to earn a reasonable livelihood.**
ISSUE: Issue at trial was whether he possessed a treaty right to catch and sell fish under
the treaties of 1760-61 that exempted him from compliance with the regulations.
HELD: The Supreme Court held that the defendants had no treaty right to cut down trees
for commercial purposes without a licence.
TOPIC#16 – DUTY TO CONSULT
SHORT QUESTIONS & ANSWERS
Q.1. What is duty to consult and accommodate?
The Crown also has a duty to consult and accommodate with respect to infringements of
credibly asserted but unproven Aboriginal and Treaty Rights or Aboriginal Title. The test
to determine whether there has been appropriate consultation and fair compensation has
been expanded by the Supreme Court of Canada in Haida Nation v. British Columbia
(Minister of Forests), [2004], Taku River Tlingit First Nation v. British Columbia (Project
Assessment Director), [2004], and Mikisew Cree First Nation v. Canada (Minister of
Canadian Heritage), [2005].
Q.2. When this duty to consult and duty to accommodate arises?
This duty to consult and duty to accommodate arises when the Crown is contemplating a
course of action or a decision that could have a negative effect on Aboriginal rights, it has
a duty to consult and accommodate. The duty to consult arises early on, including at the
strategic planning stages. The scope and content of the duty to consult depends both
41
upon the strength of the asserted rights claim and the seriousness of the impact on the
underlying Aboriginal or treaty right: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council,
2010.
Q.3. Can this duty be delegated further?
Recent cases discuss when the Crown may delegate its duty to an administrative tribunal,
such as the National Energy Board, and when there may be a duty to fund the
participation of the affected Indigenous group in consultations: see Clyde River (Hamlet)
v. Petroleum Geo-Services Inc., 2017 SCC and Chippewas of Thames First Nation v
Enbridge Pipelines Inc., 2017 SCC
Q.4. Does Crown’s duty apply to legislature?
The Crown’s duty to consult only applies to the Executive branch of government and not
to the Legislature. Flowing, as it does, from the honour of the Crown, the duty is only
triggered by Executive action or statutorily delegated Executive action. To hold otherwise
would undermine the principles of the separation of powers, parliamentary sovereignty,
and parliamentary privilege, and would result in inappropriate judicial oversight into the
Legislature’s law-making power: Mikisew Cree First Nation v. Canada (Governor General
in Council), 2018 SCC.
Haida Nation v British Columbia (Minister of forests) 2004
SCC 73, [2004] 3 SCR 511
FACTS: The Province of British Columbia held legal title to the land in question and issued
a number of Tree Farm Licences without the consent of the Haida people who have
claimed they have owned the land for more than 100 years.
ISSUE: Whether Crown has duty to consult and accommodate Aboriginal peoples prior
to making decisions that might adversely affect their yet unproven Aboriginal rights and
title claims.
HELD: The Supreme Court of Canada decided that the province had a legal duty to
consult with the Haida and suggested that significant accommodation would be required
to preserve the Haida interest pending resolution of their claims.
42
PART 4: THE CANADIAN CHARTER OF
RIGHTS AND FREEDOMS (TOPICS 17-25)
TOPIC# 18. APPLICATION OF CHARTER
IRAC FOR CHARTHER APPLICATION
ISSUE
Does the charter apply --------?
RULE & ANALYSIS
32. (1) This Charter applies (a) to the Parliament and government of Canada in respect
of all matters within the authority of Parliament including all matters relating to the Yukon
Territory and Northwest Territories; and
(b) to the legislatures and governments of each province in respect of all matters within
the authority of the legislature of each province.
43
Section 32 of the constitution Act 1982, Greater Vancouver Transportation Authority v.
Canadian Federation of Students, Eldridge v British Columbia
Note: This material will be adjusted in any charter application Q, depending upon
time and marks.
In exam if the enacting body is provincial or federal govt, then write this:
Section 32(1) of the charter brings Federal (--------) and Provincial government (---------)
under the umbrella of the charter and precludes them from legislating or acting in a
manner that infringes individual charter rights.
Now discuss facts of the case, why charter applies here. In this fact pattern, --------If pursuant to statutory authority, then write this
Bodies exercising discretion, pursuant to a statutory authority, are also bound by the
charter.
As we know from the Eldridge v. British Columbia (A.G) (1997) (SCC), Greater
Vancouver Transportation v. Canadian Federation of Students (2009) (SCC)
The Charter applies if the entity:
1. Is itself government by its very nature or the degree of governmental control; or
2. Is engaged in a particular activity ascribed to government (i.e., implementing a
specific statutory scheme or government program)
An entity which is not itself government but performs government activities is subject to
the Charter only in relation to those activities which are governmental in nature.
For first arm of Eldridge test (Greater Vancouver Transportation Authority v. Canadian
Federation of Students [2009])
-
By its very nature, Degree of government control which may include:
o Day to day activities controlled by government authority
o Board members appointed by government
o Cannot be said to operate independent of government control
For Second arm of Eldridge test (Eldridge v British Columbia)
● Entity engages in a particular activity that is ascribed to government.
● For charter to apply to private entity, it must he found to implement SPECIFIC
government policy or program.
● It involves not the nature of entity but nature of activity itself
● One has to look at quality of the act, rather than quality of actor
44
● There should be a direct and precisely defined connection between a specific government
policy and entity’s impugned conduct
● Entity may be autonomous in its day to day operations, but it acts as government agent
while providing SPECIFIC services.
Basic thing to understand is that if govt. has substantial degree of govt. control, then carter
would apply, otherwise not.
Some situations
In McKinney v. University of Guelf, 1990, the Charter did not apply to the university,
because of its independence from govt.
In Douglas V. Douglas College, 1990, the charter applied because it was subject to a
substantial degree of government control.
In Eldridge, Even if the body is not government, it may be subject to the charter if
implementing a specific government policy or program.
Select form the following cases according to exam scenario.
SYLLABUS CASES FOR TOPIC-18
Eldridge v British Columbia (Attorney General)
FACTS: The appellants were Deaf persons who wished to have the use of American Sign
Language (ASL) interpreters with their doctors in hospitals covered by their health
insurance. The hospital did not offer sign-language interpretation for deaf persons, an
omission that would be a breach of s 15 (equality) if it was made by an entity bound by
the Charter.
ISSUE: whether a hospital was bound by the Charter?
HELD: SCC pointed to Hospital Service Act of BC, and held that the hospital was
implementing a specific government policy or program thus they were bound by the
charter.
Greater Vancouver Transportation Authority v Canadian
Federation of Students, 2009. SCR 31
45
FACTS: In 2004, the Canadian Federation of Students (CFS) and the British Columbia
Teacher’s Federation (BCTF) tried to buy advertising space on the sides of BC buses.
Their ads contained political phrases. The BC advertising policies permitted commercial
advertising but not political messages.
ISSUE: whether a regulation banning “political” advertisements on buses violated
freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms.
HELD: The Supreme Court of Canada first determined that BC Transit was an agent of
the government, and therefore, the Charter applied to their actions and policies. Secondly,
that BC Transit’s policy banning political advertisements on buses was a violation and
unjustified limit on freedom of speech.
CASES WHERE CHARTER DOES NOT APPLY: (Mention only which is applicable)
(Page# notes)
McKinney v. U. of Guelph, AND Tefler v University of Western Ontario (2). Hospital case:
Stoffman v Vancouver Gen. Hospital. (3) For private employer: BCCA Re Bhindi. (4).
Security guard found drugs in locker, Charter does not apply, R V Buhay.(5) Charter does
not apply to a court injunction issued against a union, as Govt. under S.32 meant only the
executive branch. Dolphin delivery.
CASES WHERE CHARTER WAS APPLICABLE (Mention only which is applicable)
(1). PRIDGEN V UNIVERSITY OF CALGARY. (2). Douglas /Kwantlen Faculty v Douglas
College. (3) To govt. employer. Lavigne v OPSEU. (4). Charter applied to judge in this
case R V Rahey. (5). Charter applied to a court injunction prohibiting picketing at the
courts. Infringed 2b but justified under S.1. (5). In CBC V DAGENAIS, Charter applies to
common law regarding publication bans, which must reflect charter principles relating to
free speech.
Conclusion Based on the above analysis, it can be concluded that charter applied to.
TOPIC# 19 Override of Rights. S.33 OF CA 1982
*This section enables Parliament or a Legislature to enact a law that will override the
guarantees in s. 2 and ss. 7 to 15 of the Charter. All that is necessary is the enactment of
a law containing an express declaration that the law is to operate notwithstanding the
relevant provision(s) of the Charter.
Examples of use
46
*Outside Quebec, the override power has been used infrequently. For example, in
Saskatchewan it was invoked to protect back to work legislation (The SGEU Dispute
Settlement Act, S.S. 1984-85-86, c. 11, s. 9) which had previously been held by the Court
of Appeal to be contrary to the guarantee of freedom of association. RWDSU v.
Government of Saskatchewan, [1985] 5 W.W.R. 97 (Sask. C.A.). The case was later
overturned by the Supreme Court of Canada, thus rendering the use of the override power
unnecessary.
*The override power is subject to the restriction in s. 33(3), which states that an express
declaration will automatically expire at the end of five years. s. 33(4) permits the express
declaration to be re-enacted, but this re-enacted declaration will also expire at the end of
the five-year period (s. 33(5)). The purpose of the “sunset clause” is to force
reconsideration by the Parliament or Legislature at five-year intervals (during which period
elections must be held).
SYLLABUS CASE FOR TOPIC-19
Ford v Quebec (Attorney General), [1988] 2 S.C.R. 712
Keywords: Freedom of Expression – Charter – Notwithstanding (Override) Clause
Issue: Whether Quebec’s standard clause, omnibus use of the override clause was valid.
Held: The Supreme Court held the omnibus reference to the rights was sufficient. All that
is necessary is the enactment of a law containing an express declaration that the law is
to operate NOTWITHSTANDING the relevant provision of the Charter. The word
“expressly” does not require the Charter rights be identified in words; a reference to the
numbers of the sections was “sufficiently precise”. Furthermore, more than one
provision, or even all (s 2 and ss 7 to 15) can be referred to, but a declaration that did
not specify any particular Charter provision would NOT be effective.
TOPIC # 20 IRAC FOR S.2(a)
FREEDOM OF CONSCIENCE AND RELIGION
Facts of the question raise the following issues.
ISSUES
ISSUE#1
47
Does the charter apply -------- (write name of institute like college, university, hospital)
ISSUE# 2
If so, does it breach Tom’s (write name of person in question) charter right?
ISSUE# 3
If so, is it justified under section 1 of constitution act 1982 (Oakes Test) or
If so, could it be saved under section 1 of CA 1982
ISSUE#4
If not, what is the remedy for Tom? (Write name of person in question) or
If not, what is the appropriate remedy? (s.24 and s.52 of the Constitution Act, 1982)
RULE & ANALYSIS
2(a) of the Constitution Act, 1982 says “Everyone has freedom of conscience and religion”
If Remedies applicable, write S.24,52 Syndicat Northcrest V Amselem, 2004. Section 1
analysis. (Oakes Test)
Test for religious freedom Mainly in Amselem , Hutterian Brethren, Multani
(1) Any voluntary and sincere expression of faith measured subjectively
(2) Right to declare religious belief without fear of hindrance and manifest religious belief by
worship, practice, teaching, dissemination
(3) Not necessary that it should be part of an established or shared belief system.
(4) Cannot injure others or their parallel rights
(5) Interference with the claimant’s ability to act in accordance with his religious beliefs in a
manner that is more than trivial.
RULE AND ANALYSIS OF ISSUE#1
First In terms of the Charter’s general applicability, there seem to be no issues of standing
here. Discuss here charter, application with relevant 2/4 cases. After writing a few lines
from charter application material, discuss facts of the case.
CONCLUSION---Charter applies here
ANALYSIS OF ISSUE #2
48
(If the Q is only about one charter breach, then write in detail, but if 2/3 charter rights have
been asked, then write briefly. In the analysis part, merge facts of the Q with the test of
that charter right. “Look at the marks”
In order to determine whether freedom of religion of ……has been breached or not,
following issues need to be resolved.
3 STEP PROCESS (Brief this material)
(1) Is Freedom of religion triggered?
(2) Is Freedom of religion infringed?
(3) Is the infringement justified under S.1
1.1 Is Freedom of Religion triggered: Apply to question
To establish Freedom of religion, the following must be established (Syndicat Northcrest
v Amselem, 2004)
The claimant must show to the court that: (Think can an atheist claim this)
1.1.1 Is there a religious belief: He/she has a practice or belief, connected with religion, calling
for particular line of conduct (obligatory or customary). Discuss here facts . Here Tom ---1.1.2 Is the belief sincere: He/she is sincere in his/her belief: 2 main aspects:
✓ Focus is on the “spiritual essence” of the belief, not on dogma (doctrine) or particular
religious obligations / requirements.
✓ Focus on the belief as it is expressed at the time of the alleged infringement, not on past
practice or belief.
Only then Freedom of Religion is triggered.
2.1 Is Freedom of religion infringed: Once religion is triggered, court must ascertain if
there has been infringement?
Has there been interference with exercise of the right, to construe infringement under
Charter? Sufficient to show that interference has been more, more than trivial or
insubstantial (Amselem)
[Analyse each requirement with facts]
IF NO BREACH in the exam, THEN WRITE THIS.
Where the effect of the law on charter right is trivial or insubstantial, there is no breach of
the charter (R V Jones)
49
CONCLUSION (If breach in exam)
Based on above analysis, it can be concluded that Tom,
has been breached.
ANALYSIS OF ISSUE #3
DISCUSSION OF S1. OAKES TEST IN MANDATORY. Discuss it only for one-time even
2/3 charter rights have been asked.
S.1 Analysis: Oakes Test
1. Pressing and substantial objective
2. Rationally connected to the objective
3. Minimal Impairment
4. Proportionality- Deleterious effects of the impairment must not outweigh the salutary
benefits.
HOW TO DO APPLICATION IN EXAM (NCA website Q)
*Prescribe by law means that limitation in exam should be prescribed by law. This limit
has been prescribed by
name of act in the Q.
*Sufficient Important objective: (Discuss from Q. Here objective is to safeguard the
integrity of the voting process by providing greater protection against voter’s fraud. which
is sufficiently important objective to justify limiting the charter right.
Rationally connected to the objective Here purpose is protection against voter’s fraud.
Minimal Impairments The law in question is impairing the right of Muslim women at a
minimum level as she has been given different options for casting her vote.
Proportionality.
Here salutary effects of the law (Canada election act ) which is protection against voters
fraud , outweigh the deleterious effects of charter breach on Muslim women.
Analysis of issue # 4
Discuss here remedy which is available to the claimant. Conclusion.
OAKES TEST
LIMITATION OF CHARTER RIGHTS •
1. Sufficient important objective The law must pursue an objective that is sufficiently
important to justify limiting a charter right. (Andrew V LSBC)
50
2. Rational connection
The law must be rationally connected to the objective (R V
Oakes, Benner V Canada)
3. Least drastic means
the law must impair the right no more than necessary to
accomplish its objective. (Prostitute Reference)
4. Proportionate effect (Action should not be more severe then is necessary)- the law must
not have a disproportionately severe effect on the persons to whom it applies and weigh
deleterious effects and salutary benefits (Hutterite Brethren, Dagenais v CBC 1994).
SYLLABUS CASES FOR TOPIC-20
a.
Syndicate Northcrest v Amselem, 2004 SCC 47---Keywords: subjective test of “belief”
Facts: Orthodox Jews wanted to build succahs (temporary dwellings) on their balconies
to use during festivals and Condo by-laws prohibited the same.
Issue: Whether the clauses in the by-laws prohibiting against constructions on one’s
balcony, infringe the appellant’s freedom of religion.
Held: Supreme Court held the claimants were entitled to erect their succahs. Lacobucci
J gave a broad definition of protected religious practice.
✓ It need not be part of an established belief system…; it could be unique to the claimant.
✓ The claimant need not perceive the practice as obligatory: “voluntary expressions of
faith” were equally protected.
✓ All that was necessary to qualify for Charter protection was that the claimant SINCERELY
believed that the practice was “of religious significance”.
b.
Reference re Same-Sex Marriage, 2004 SCC 79
Issue: Whether Parliament’s power over “marriage” would extend to legalizing same-sex
marriage.
Held: The Court denied it was bound by the original understanding of marriage, which it
described as “frozen concepts” reasoning. Our Constitution, the Court said, “is a living
tree which, by way of progressive interpretation, accommodates and addresses the
realities of modern life”. The capacity to marry persons of the same sex is consistent
with the Charter. Also, under s. 2(a), the religious officials are protected from being
compelled to perform a marriage between two persons of the same sex.
51
c. Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37
Facts: Hutterian colony believed taken photographs is forbidden by Bible and therefore,
provincial law requiring photo to be taken for reiver’s license infringes their charter right.
(Purpose of law: to identify drivers involved in accidents)
Issue: Whether the universal photo requirement infringes s 2(a) of the Charter
Held: Supreme Court held Hutterian claimants had a “sincere religious belief” that
prohibited them being photographed and that belief was protected by s. 2(a) of the
Charter. Majority held the photo requirement was not justified under section 1- law served
important purpose; did not impose severe burden ( people could use alternative means
of transport); was a reasonable limit and salutary(beneficial) effects of the universal photo
requirement outweighed the deleterious(disadvantageous) effects on the claimants’
religious rights.
d. R v NS, 2012 SCC 72, [2012] 3 SCR 726
Issue: On Appeal, the issue is when, if ever, a witness who wears a niqab for religious
reasons can be required to remove it while testifying.
Held: The Court explained that when a witness’ freedom of religion was in conflict with
the right of the accused to a fair trial (right to make full answer and defense required
being able to see the witness’s face, particularly being cross- examined), the judge
must consider all relevant factors to determine whether the benefits of permitting a
witness wearing a niqab while testifying outweigh its deleterious effects – the balancing
act.
Framework for balancing the complex competing rights here;
1) Would removal breach freedom of religion?
2) Would wearing it breach right to fair trial?
3) Can both rights be accommodated?
4) If not, then do the salutary effects of removing niqab outweigh deleterious effect of
removal?
Mouvement laïque québécois v Saguenay (City), 2015 SCC 16,
[2015] 2 SCR 3
52
The City of Saguenay mayor Jean Tremblay (2002 to 2015) opened public city council
sessions by reciting a particular prayer. Alain Simoneau, an atheist who regularly
attended council meetings, asked Tremblay to stop the prayers, claiming that they
infringed on his freedom of conscience. When Tremblay refused, the Mouvement laïque
québécois (MLQ), a non-profit organization supporting secularization, filed a complaint.
The Court held that the prayer recited by the municipal council in breach of the state’s
duty of neutrality resulted in a distinction, exclusion and preference based on religion —
that is, based on Mr. Simoneau’s atheism — which, in combination with the circumstances
in which the prayer was recited, turned the meetings into a preferential space for people
with theistic beliefs. The theists could participate in municipal democracy in an
environment favourable to the expression of their beliefs. Although non‑believers could
also participate, the price for doing so was isolation, exclusion and stigmatization. This
impaired Mr. Simoneau’s right to exercise his freedom of conscience and religion.
TOPIC# 21 IRAC FOR S.2 (b) FREEDOM OF
EXPRESSION
Facts of the question raise the following issues.
ISSUE# 1: Does the charter apply ------- (write name of law)
ISSUE# 2: Does it breach Tom’s (write name of person in question) charter right?
ISSUE# 3: If so, Is there any justification under s. 1 for Tom’s breach of charter’s right?
Or
If so, could it be saved under section 1 of CA 1982
ISSUE# 4: If not, what is the remedy for Tom? (Write name of person in question) or
If not, what is the appropriate remedy? (s.24 and s.52 of the Constitution Act, 1982)
RULE.
53
According to s.2(b), everyone has the freedom of thought, belief, opinion and expression,
including freedom of press and other media of communication. section 2(b) and Section
32 of CA 1982. S.24 & 52, IRWIN TOY V QUEBEC (for definition), Montreal City (for
public property), Section 1 analysis. (Oakes Test).
There are different types of expression, see which one is in exam, and write relevant
cases from notes.
ANALYSIS of Issue# 1
Discuss here charter application. Use application of charter material, topic# 18.
Conclusion---Charter applies here on -------ANALYSIS of Issue #2
Section 2(b) of the Constitution Act, 1982 guarantees to “everyone” the “fundamental
freedom of thought, belief, opinion and expression, including freedom of the press and
other media of communication. It includes organizations as well.
1. Is the challenged activity ‘expression’ for the purpose of Charter 2(b)?
Definition: Activity is expressive if it attempts to convey a meaning (Irwin Toy v Quebec,
1989). Here discuss facts of the Q.
2. Is this form of expression protected by Section 2(b)?
2.1. Criminal Expression: Communication for prostitution as an offence in criminal code was
in violation of 2(b), but law was protected u/s.1 (Prostitution Reference (1990));
publishing hate propaganda as offence was in violation of 2 (b) but law was protected
u/s1 (R v Keegstra 1990).
2.2. Violence- Expressive activity if it takes the form of violence is not protected u/s 2(b) (Irwin
Toy). [violence= e.g. murder, rape, hate propaganda] However, threats of violation are
now protected u/s. 2(b).
2.3. Content neutrality: Content of a statement cannot deprive it of protection accorded by
S.2(b), no matter how offensive it may be (R v Keegstra 1990)-i.e., content of a statement
is protected u/s 2(b). Deliberate false news (though protected u/s 2(b)) law stuck down by
SC (R V Zundel, R v Lucas).
2.4. WHY IS EXPRESSION PROTECTED? Purposes of 2b (Irwin Toy v Quebec)
There are three rationales or values which s. 2(b) intends to serve, namely.
(1) seeking and attaining the truth is an inherently good activity (Truth finding);
(2) participation in social and political decision-making is to be fostered and encouraged;
(Democratic discourse) and
54
(3) the diversity in forms of individual self-fulfillment and human flourishing ought to be
cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake
of those who convey a meaning, but also for the sake of those to whom it is conveyed
(Self-fulfillment).
3. What TYPE of expression it is (see in Q what type of expression it is, and discuss)?
There could be different types of expression namely, select which type is applicable.
3.1. Commercial Expression, also called as market place of ideas- designed to promote sale
of goods and services.
Marketplace of Ideas: Commercial expression is designed to promote the sale of goods
and services and is constitutionally protected. Two reasons to protect: (1) expression
literally falls within the meaning of ‘expression as per SCC” and (2) Difficult to distinguish
commercial expression from other types. (Ford v Quebec)
Even language requirements are important for commercial expression e.g. Ford v
Quebec- law prohibiting signs in English violated section 2(b).Advertising is protected
These are cases of commercial expression. Irwin toy, Rocket, RJR Macdonald relevant case.
•
•
•
•
Irwin Toy v Quebec 1989 – Quebec law prohibiting all advertising directed at children –
upheld under s. 1 as freedom of expression is also subject to limitation u/s 1.
Rocket v Royal Challenge of Dental Surgeons, 1990 – Ontario regulation prohibiting
advertising profession services (dentistry) not only violated 2(b) but also struck down u/s.1
(not minimally impairing).
RJR MacDonald, 1995 – Federal tobacco law prohibiting advertising of tobacco products
not only violated 2(b) but also struck down u/s.1 (not minimally impairing).
JTI Macdonald, 2007 – revised federal tobacco law prohibiting “lifestyle advertising” and
ads targeting young people – upheld under s. 1.
expression, restrictions on it have to be justified U/S 1. Any ban on advertising by govt. is
a breach of 2 b. (content neutrality)
3.2. Signs
Signs being a type of advertising are protected u/s 2(b) – again, the question will be
whether prohibition/ regulation is justified under s. 1.
•
•
R v Guinard, 2002 – Quebec municipal by-law prohibiting advertising (signs) in all non-
industrial zones – struck down because disproportionate. The defendant put sign on his own
property but fell within definition of advertising. SCC held that the law infringed his right to
put up sign on his property. So, limit could not be justified.
Vann Niagara Ltd. v. Oakville (Town), 2003 – Ontario municipal by-law banning billboards –
upheld because sufficiently narrow.
55
3.3. What about Language- Freedom of expression includes the freedom to express oneself
in the language of one’s choice. Ford v. Quebec, 1988 – Quebec law that all commercial
signs must be in French only – struck down (not minimally impairing). 2 (b) covers
freedom to express oneself in the language of one’s choice.
3.4. Picketing/ Strike – picketing= commercial expression and is protected u/s 2(b) but
subject to sec 1 justification. Dolphin Delivery case- picketing issue in this case was
between two private parties and therefore charter not applicable whereas in Vancouver
Courthouse case- Charter applied to injunction to prevent criminal contempt of court.
3.5. Hate speech/ Hate Propaganda (Test) (R V Keegstra), Saskatchewan V Whatcott,2013.
•
Hate propaganda (promotes hatred against minority groups (typically Jews,
homosexuals)). It is a protected expression except where it promotes threat of violence
(threshold).
•
It is prohibited by the Criminal Code (it is offence to willfully promote hatred against any
section of public distinguished by color, race, religion or ethnic origin) , though there is no
question that hate speech is protected expression.
•
In R v Keegstra, 1990, court upheld the criminal law prohibiting hate propaganda as
justified under s. 1 – take into account that the purpose of the prohibition under the
criminal code is to promote the value of equality.
3.6. Defamation- Tort of defamation is a civil remedy for protection of reputation of a person
that has been damaged by false statement. Truth or justification as a defense in tort of
defamation must be proved by evidence.
•
Supreme court in the case of New York Times v Sullivan has added requirement of
malice to establish defamation statement.
•
Supreme court in Grant v Torstar Corp case added to two elements to the defense of
defamation: (1) publication must be a matter of public interest-the public interest is to be
determined by trial judge. (2) publication must have responsible element which is done
by exercising of due diligence to verify the defamatory allegation.
•
Public opinion is generally considered as an exception. Even the defense of fair comment
is available if the opinion is (1) based on fact (2) relate to matter of public interest and (3)
is an honest one.
3.7. Political debate: (also called ELECTION SPENDING)
Section 2 (b) of the Charter aims not just to guarantee a voice to registered political
parties, but an equal voice to each citizen. The right of each citizen to participate in
democratic discussion. The right to participate in political discourse is a right to effective
participation for each citizen to play a “meaningful” role in the democratic process.
(Harper V Canada 2004). Election spending is a form of political expression, therefore
protected.
56
3.8. Pornography/ Child Pornography/ Obscenity: The Butler Test. Pornography is
protected as freedom of expression- as there are no content based restriction u/s 2(b)
(but justified limitation under S.1) R v Butler 1992
Obscenity
is
defined
as:
Depictions of explicit sex with violence; or Depictions of explicit sex without violence but
in a degrading or dehumanizing manner. (both should be banned) [S.1 Prohibition justified
as it causes harm to women and society as a whole and is narrowly defined].
Obscenity in films- censorship.
•
Child pornography- Even child pornography is protected expression under s. 2(b)
(content neutrality). But the Criminal Code prohibition against child pornography is
justified under s. 1. Why? Like Butler – a “reasoned apprehension of harm”. This
applies even if the porn uses artificial representations of children – still creating a market
and risking exploitation of children. R v. Sharpe, 2001.
3.9. Criminal Expression: (R v Keegstra)- Activities should not be denied s 2(b) protection
“solely because they have been made the subject of criminal offences” (Keegstra- i.e.
hate propaganda offences limits s 2(b) but has been saved u/s. 1). Autonomy and SelfDevelopment
3.10.
Write about Violence if there is violence part in exam-
Violence: Violent expression falls outside the scope of s. 2(b) by reason of its method.
Violent expression may be a means of political expression and may serve to enhance the
self-fulfillment of the perpetrator. However, it is not protected by s. 2(b) because violent
means and methods undermine the values that s. 2(b) seeks to protect. Expressive
activity that takes the form of violence is not protected. (Irwin Toy)
4. Whether RESTRICTION OF TIME, MANNER AND PLACE CONSISTENT WITH
PURPOSES OF 2b
TEST for freedom of expression in public places: Functional analysis: Functional
analysis test (Montreal v 2952-1366 Quebec, following factors should be considered:
The historical or actual function of the place; and whether other aspects of the place
suggest that expression within it would undermine the values underlying free expression.
SCC (MONTRÉAL (CITY) v. QUÉBEC INC) has provided the following test
for the application of Section 2 (b) to public property. The basic question with respect to
expression on government-owned property is whether the place is a public place where
one would expect constitutional protection for free expression on the basis that
expression in that place does not conflict with the purposes which s. 2(b) is intended to
serve, namely
(1) democratic discourse,
(2) truth finding and
57
(3) self- fulfillment.
To determine this, following two aspects has to be considered:
-Places functionally compatible with free expression: non-secure parts of airports, utility
poles, sides of buses.
-Places functionally incompatible with free expression: Cabinet meetings and government
offices, Courts and legislative assemblies – specifically for disruptive conduct.
Time, Manner and Place (TMP) of expression.
Time: For Time, Prohibition on publication of new opinion polls during the last 3 days of
an election (struck down as too broad) (Thompson newspaper, 1998.)
Manner: For Manner- prohibition against secondary picketing
Place:
•
For place, prohibition against posters on any municipal public property (struck down as
too broad)( Ramsden, 1993.
•
Private Location: No right to freedom of expression [reasonable apprehension of
privacy]
•
Public Property: 2(b) is potentially applicable. 3 faced views in case of Committee for
common wealth of Canada v Canada
•
Legislative assembly- though a public place but protected by parliamentary privilege
(New Brunswick Broadcasting Co v Nova Scotia (1993))
•
Picketing- The activity of members of trade union on strike, who will assemble outside a
workplace, often carrying signs, there is a communicative element to a picket line and
therefore it constitutes “expression” within s 2(b) (Dolphin delivery) Secondary
picketing is protected expressive activity, but the time, manner and place may be
justifiably regulated. Where activity impedes access to the courts – prohibition justified
(Vancouver Courthouse Case, 1988). Where the activity involves the commission of a
wrongful act (crime or tort) – prohibition justified (Pepsi-Cola, 2001). However, where it
does not involve the commission of a wrongful act – i.e. the peaceful distribution of leaflets
– a broad prohibition is not justifiable (UFCS v. Kmart, 1999).
5. Has this form of expression been infringed?
Freedom of expression is too important a principle to be lightly cast aside or limited.
Whether political, religious, artistic or commercial, freedom of expression should not be
suppressed except where urgent and compelling reasons exist and then only to the extent
and for the time necessary for the protection of the community. Here this is not such a
case.
CONCLUSION ANALYSIS OF ISSUE #3
58
Take material from topic# 15.
S.1 Analysis: Oakes Test
1. Pressing and substantial objective
2. Rationally connected to the objective
3. Minimal Impairment
4. Deleterious effects of the impairment must not outweigh the salutary benefits Take details
from 2(a) material from topic#16
ANALYSIS OF ISSUE# 4
Any remedy if breach of Tom’s charter right is not justified.
SYLLABUS CASES FOR TOPIC-21
a-
Montréal (City) v 2952-1366 Québec Inc., 2005 SCC 62
Keywords: Freedom of Expression – Charter – Noise – test for public
property/place
Facts: Strip club set up loudspeaker at its street entrance. Club charged by city by-law
on prohibition of noise outside building.
Issue: was the city by-law contrary to section 2(b)?
Ruling: McLachlin CJ and Deschamps J created a single test for the application of s. 2(b)
on public property.
Is the place a public place where one would expect constitutional protection for free
expression on the basis that expression in that place does not conflict with the purposes
which s. 2(b) is intended to serve, namely:
(1) democratic discourse
(2) truth-finding and
(3) self-fulfillment
To answer the question, it is necessary to consider the “historical function” of the place,
the “actual function of the place” and “whether other aspects of the place suggest that
expression within it would undermine the values underlying free expression”.
In this case, the streets “are clearly areas of public, as opposed to private, concourse,
where expression of many varieties has long been accepted”.
PUBLIC = entitled to Charter protection.
59
Thus, the club’s broadcast into the street was protected by s. 2(b). Majority went on to
hold the by-law was justified as a reasonable limit under s.1.
b-
Saskatchewan (Human Rights Commission) v Whatcott, 2013
SCC 11
Keywords: Charter – Hatred/Hate Speech – Freedom of Religion – Freedom of
Expression
Facts: Sec-14 of Saskatchewan Human Rights Code (SHRC) prohibited- publication or
display of any representation that exposes or tends to expose to hatred, ridicules,
belittles or otherwise affronts the dignity of any person or class of persons on the
basis of a prohibited ground.
There were some flyers entitled Keep Homosexuality out of Saskatoon’s Public Schools.
This was challenged in court.
Issue: Concerns a challenge to a prohibition on hateful publication in the SHRC.
Ruling: The SCC held that while s.14 of the Act violated the respondent’s right to freedom
of religion and expression guaranteed by s. 2(a) and (b) of the Charter, it can be justified
under s. 1.
This is because hate speech is at some distance from the spirit of s 2(b) because it does
little to promote, and can in fact impede, the values underlying freedom of expression.
The courts will consider the effects of the expression, not its inherent offensiveness.
In this case, the words “ridicules, belittles or otherwise affronts the dignity of” were found
not to rise to the level of “ardent and extreme feelings” essential to the constitutionality
of the limitation on expression in Taylor Case, so the Court ordered those words struck
out.
Court also went on for Oaks 4 stages analysis.
Irwin Toy v Quebec
The court held that in order to determine if a breach of section 2(b) had occurred one first
had to determine whether the conduct constituted non-violent activity which attempted to
convey meaning. This changed the law of the constitution of Quebec. The next step was
to consider whether the effect or purpose of the legislation was to restrict freedom of
expression. Applying the analysis, the Court held that a Quebec law that restricted
advertising directed to children was valid law which violated section 2(b) but could be
justified under section 1.
60
TOPIC# 22-IRAC FOR SECTION 7. FREEDOM OF
LIFE LIBERTY AND SECURITY
Facts of the question raise the following issues.
ISSUE# 1: Does the charter apply ------- (write name of law)
ISSUE# 2: Does it breach Tom’s (write name of person in question) life, liberty and
security? (Claimant’s burden)?
Issue#3. If so, Is it in accordance with the principles of fundamental justice?
Issue#4. If not, is it reasonably justifiable under section 1? (Government’s burden)?
(Oakes test)
Issue# 5 If the breach of Tom’s right is not justified, then what is the remedy for him?
RULES
Section 1 and 7 and 32 of CA 1982. R v Malmo Levine (2003).
*ANALYSIS OF ISSUE #1
In terms of the Charter’s general applicability, there seem to be no issues of standing in
this case.
Here discuss facts of case with relevant cases (from application of charter material).
There is no reference to s.33 here which says that certain rights or freedom guaranteed
by charter can be limited by parliament for five years through express declaration.
CONCLUSION. Charter applies here.
61
*ANALYSIS OF ISSUE#2
Discuss here facts of the case how legislation has breached Tom’s LL & S.
Text of S.7
“S.7 of Charter states that: Everyone has a right to life, liberty and security of the person
and right not to be deprived thereof, except in accordance with the principles of
fundamental justice.”
Under Section 7 we need to undertake a two-step analysis:
1. Is there an infringement of/ deprivation of life, liberty or security of a person?
2. Is the deprivation in accordance with Principles of Fundamental Justice (POFJ)?
2.1 Identify the POFJ
2.2 is deprivation in accordance with that POFJ
Now see in exam which right LLS is breached?
A. LIFE: If the legislation poses significant risk to health, including a risk of death, then the
statute may be found to breach s.7 life.
CASE ON DEPRRIVATION OF LIFE
Chaoulli v Quebec- SC held that excessive waiting time for treatment in public healthcare
system of Quebec increased risk of death and were violation of right to life and security.
B. LIBERTY: Liberty includes:
•
physical liberty- freedom from physical restraint-(Re BC Motor Vehicle Act (1985))
•
Psychological liberty (Blencoe v British Columbia- discussed in security)
This section does not cover:
✓ economic liberty- e.g. Property, freedom of contract , corporate activity)
✓ political liberty – e.g. conscious and religion, expression, freedom of assembly/
association, right to vote etc.
If in exam, a regulatory offence has jail time as punishment, then liberty (physical) will be
breached and should be in accordance with POFJ.
CASES ON DEPRIVATION OF LIBERTY.
•
Imprisonment (Re B.C. Motor Vehicles Act),
•
Physical restraint Compulsion to attend at a particular place [R. v. Beare], Compulsion to
stay away from a particular place [R. v. Heywood],
62
•
Testimonial compulsion [Branch].
•
“Fundamental life choices” or “fundamental personal decisions” such as Choosing where
to establish one’s home.
•
The decision of a woman to terminate her pregnancy [Morgentaler].
CASES ON LIBERTY OF PERSON (Mention only relevant case in exam)
•
Charkaoui V Canada,2007, Ministers can issue certificate declaring non-citizens a threat,
struck down, because deprived liberty and violated PFJ of fair hearing.
•
Canada V PHS Community, 2011, Minister decision not to extend exemption (Right to
Life). Law ARBITRARY), Grossly disproportionate)
•
In Canadian Foundation for Children, Youth and the Law v Canada, it was argued
that a criminal code that provides defence to a charge of assault using reasonable force
and for care of children though affected the security of children, a POFJ was “the best
interests of the child” and so the provisions of the law were upheld. The SCC upheld the
3 requirements and said that although “best interests” is a legal principle, it was not
fundamental to the legal system.
C. SECURITY: Security of the person protects against state interferences with physical and
psychological integrity (Morgentaler; Chaoulli). It encompasses a notion of personal
autonomy involving control over one’s bodily integrity free from state interference.
*CASES ON SECURITY OF THE PERSON-(Mention only relevant case in exam)
•
•
•
R v Morgentaler No 2: Abortion law in Criminal Code which restricted abortions, and which resulted
in delays in treatment, and which ultimately increased risk to women’s health, was held to deprive
women of security of person.
Chaoulli v Quebec (2005) Law which forbid the purchase of private health insurance was said to
infringe security of person, because it ultimately led to delays in treatment, which affects putting
lives at risk (Law is arbitrary) but this deprivation does not violate POFJ.
Security of person Includes control over one’s body [bodily integrity] (Rodriguez v British Columbia
– criminal codes prohibition on assistance to commit suicide did not offend POFJ).
Protects psychological integrity (New Brunswick v G.(J.)and protects against state induced
psychological stress, such as where there has been excessive delay caused by administrative tribunals
in below case:
• Blencoe v British Columbia- A government minister of B.C. was accused of having harassed women.
There was a lengthy delay before getting to the tribunal hearing, it was argued that the delay
infringed his section 7 rights because of the anguish of the delay. Argument was that this was a
deprivation of psychological security (and liberty).
• Singh v Minister of Employment and Immigration 1985- Sec 7 could be asserted by “every human
being who is physically present in Canada and by virtue of such presence amenable to Canadian
law”, Wilson J meant that any illegal immigrant who claimed to be a refugee was entitled to a
hearing before an official or tribunal with authority to determine the issue. This right includes
freedom from suffering (i.e. deportation to a substantial risk of torture).
63
*Conclusion
That legislation or state action has deprived Tom of life, liberty or security of the person,
and that this deprivation is apparently contrary to the principles of fundamental justice.
*Analysis of Issue# 3
Test for POFJ ( R v Malmo Levine, 2003).
Definition of fundamental justice
In Re BC Motor Vehicle Act (1985), it was said that “the principles of fundamental justice
are said to be found in the basic tenets of the legal system”
In R v Malmo-Levine1, the Court postulated 3 requirements (refer sr. no. 1 to 3 below) for
a rule to qualify as a “basic tenant of the legal system and therefore a principle of
fundamental justice”. (While writing the following principle, merge facts of the
question with these principles, do not write separately. See which one applies to
the situation).
(1) It must be a legal principle.
(2) There must be a significant social consensus that the rule or principle is fundamental
to the way in which the legal system ought fairly to operate.
(3) It must be identified with sufficient precision to yield a manageable standard against
which to measure deprivations of life, liberty or security of the person.
(4) Law should not be Arbitrary
(5) Law should not be Overbroad
(6) Law should not be grossly disproportionate
(7) Law should not be vague.
(8) Right to fair trial
(9) Right to full answer and defence
(10)
Right to counsel
(11)
Pre-trial disclosure
(12)
Right to silence
Select from the following which one is applicable.
1
In Malmo case, law criminalized possession of Marihuana was challenged being against LLS. Court did not look
into striking balance concept like in earlier cases but established 3 requirements of POFJ: legal principal, sufficient
societal consensus and sufficient precision.
57
64
•
Law should not be Arbitrary-A law that is shown to be arbitrary or irrational will infringe
Section 7.
-
This is a situation where there is no connection between effect and object of the law.
There must be a rational connection between the object of the measure that causes the
s. 7 deprivation Eg. Morgentaler (abortion), Chaoulli (delay in healthcare), PHS.
•
Law should not be Overbroad-If the law goes too far and interferes with some conduct
that bears no connection to its objective, it is considered overbroad.
-
R v Heywood-SCC established doctrine of “overbreadth”, which applies to a law (any
person previously found guilty of sexual assault cannot loiter near school ground,
playground, public park or bathing area) that is broader than necessary to accomplish its
purpose (broader in geographical scope, duration being too long and applied to larger
class of persons). Overbroad was rejected in 2 cases.
•
Law should not be grossly disproportionate. The effect/ deprivation should be in
proportion to the objective of the law
-
The rule against gross disproportionality only applies in extreme cases where the
seriousness of the deprivation is totally out of sync with the objective of the measure.
(Bedford Case),
-
Where effects are grossly disproportionate to state’s objective. (Eg. PHS Case).
•
Law should not be vague.- a vague law offends 2 values fundamental to legal system:
1. law does not provide fair notice making it difficult to comply
2. law does not provide clear standard which may lead to arbitrary enforcement
-
A law is unconstitutionally vague if it “does not sufficiently delineate (explain) any area of
risk (and thus cannot provide fair notice or limitation of enforcement discretion”; or “is not
intelligible (understandable)”. Nova Scotia Pharmaceutical Society (1992)
-
A law must set an intelligible standard both for the citizens it governs and the officials who
must enforce it.
•
Wrong Laws- R v Gamble (1988)- accused tried under criminal code provisions not in
force at the time of trail- SC granted application for habeas corpus.
•
Right to Silence and Right to counsel- difference between the two:
Counsel- police should refrain from questioning accused till he has reasonable
opportunity to contact counsel.
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Silence- two specific charter rights in this regard: sec 11 (c) -accused isn’t a compellable
witness at his/her own trial and sec 13- witness giving self-incriminating evidence has a
right not to have that evidence used against him in other proceedings.
•
Right to Fair trial: same as 11 (d) that guarantees fair and public hearing by independent
and impartial tribunal.
-
As the accused has right to make full answer and defence, SCC in R v Stinchcombe
(1991) held that it is constitutional obligation that there should be pre-trail disclosure by
crown of all information relevant to the conduct of defence.
-
Pre-trail disclosure by third party needs to balance the privacy and equality rights. SCC
in R v O’Conner (1995) has laid down 5 factor test to determine this.
-
Solicitor Client Privilege: In R v McClure (2001) court held that if opposite party’s
innocence was at stake, this privilege may not be observed. 2 stage test (1) evidence of
doubt on guilt (2)inspection in private.
-
There has been an amendment in Criminal Code now whereby a confidential record will
be produced for inspection (in sexual assault cases) if (1) it is likely relevant and (2)
necessary in the interest of justice.
Section 7 does not protect:
•
Property [Irwin Toy]
•
A “right to dignity” [Blencoe]
•
Pure economic interests” [Siemens]
•
“Whatever activity an individual chooses to define as central to his or her lifestyle” [R. v.
Malmo-Levine]
•
The right to drive a car [Horsefield]
•
The right to bring a civil action [Rogers v. Faught]
•
The right to practice a profession [Mussani]
ANALYSIS OF ISSUE# 4
Any remedy if breach of Tom’s charter right is not justified.
SYLLABUS CASES FOR TOPIC-22
Canada v PHS Community Services Society, 2011
Facts
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● Due to high levels of injection drug use, the Government agreed to assist drug users in
treating their disease at all levels by implementing a safe injection facility.
Ratio
● Prohibiting drug possession at the safe injection site engages a drug user’s liberty interest
as well as their rights to life and security of a person.
Canada (Attorney General) v Bedford, 2013
Facts
● Case challenged sections of the criminal code that made activities relating to prostitution
illegal. Current and former prostitutes B, L and S brought a claim to seek declaration of
three provisions regarding prostitution stating that their rights were infringed under section
7 of the Charter.
● B, L and S argued the current laws prevented sex workers to work in a safe environment
and contributed to the violence sex workers faced.
Ratio
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● Section 7 of the Charter does infringe the rights of prostitutes by depriving them of security
in the manner that is not according to the principles of fundamental justice.
Carter v Canada, 2015
Facts
● Under the criminal code, section 241(b) states that anyone who aids or abets in another
person to commit suicide commits an indictable offence. Additionally, section 14 states
that no person may consent to death inflicted on them.
Ratio
● The laws prohibiting assisted suicide and physician-assisted suicide interferes with the
life, liberty and security of an individual whom has an irremediable and grievous medical
condition. The laws interfere with a person’s liberty to make their own decisions regarding
their medical care, bodily integrity and with the security of the person leaving them in the
intolerable suffering
● The right to life of a person is engaged where the law imposes an increased risk of death
or death itself where directly or indirectly. The response an individual has with an
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irremediable or grievous medical condition is critical to their own dignity and person
autonomy.
TOPIC# 23-S.15 EQUALITY RIGHTS
Facts of the question raise the following issues.
ISSUE# 1: Does the charter apply ------- (write name of law)
ISSUE# 2: Does it breach Tom’s (write name of person in question) equality right?
ISSUE# 3: If so, Is there any justification under s. 1 for Tom’s breach of charter’s right?
Or
If so, could it be saved under section 1 of CA 1982 or
Is this breach justified under s.1 of the constitution act 1982?
ISSUE# 4: If not, what is the remedy for Tom? (write name of person in question) or
If not, what is the appropriate remedy? (s.24 and s.52 of the Constitution Act, 1982)
RULE: (Do not copy s.15 in exam) Select which sub section is applicable.
(1) Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, without
discrimination based on
i.
race
ii.
national origin
iii.
ethnic origin
iv.
colour
v.
religion
vi.
sex
vii.
age
viii.
mental disability
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ix.
physical disability
(2) Subsection (1) does not preclude any law, program or activity that has as its object the
amelioration (improvement/betterment) of conditions of disadvantaged individuals or
groups including those that are disadvantaged because of race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
SCC said in R V KAPP, that “Andrew set the template for this court commitment to
substantive equality – a template which subsequent decisions have enriched but never
abandoned.”
Section 15 of CA 1982. Law V Canada, (199). R V Kapp,2008.
ANALYSIS OF ISSUE #1
Charter applies here, take material from charter application.
CONCLUSION
ANALYSIS ISSUE#2 (Discuss Withler and Andrew cases) WITHLER TEST FOR
EQUALITY
In order to establish that Tom’s s.15 right has been breached, the test laid out in R v
Kapp and Withler v Canada needs to be satisfied. Now merge following rule with facts
of the case.
1.
Does the law create a distinction based on an enumerated (listed) or analogous
(similar) ground? (Apply it on facts of the question, Amira, Devotha’s question)
2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
SCC in R V KAPP, (OBITER) opted to remove the human dignity requirement with
discrimination, namely perpetuation of disadvantage or stereotyping, but 4 factors
contextual approach is still relevant.
S. 15 applies to “every individual,” which only restricts the right to “natural persons,” (i.e.
not corporations). The rights in question in these particular circumstances can also be
overridden by virtue of s.33, notwithstanding clause/ sunset clause, but there is no
reference to s. 33 here and as such the provision does not apply here.
ET. Either u can get enumerated grounds or analogous grounds in exam
What are analogous grounds? (Read
Analogous grounds describe personal characteristics that are either immutable
(characteristics that people cannot change) or constructively immutable (characteristics
that are changeable only at unacceptable cost to personal identity).
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These are involuntary inheritance and describe what a person is rather than what he
does.
Supreme Court has held that the following are grounds analogous to those enumerated
in section 15 (1):
•
Non-citizenship (Andrews v Law Society of British Columbia (1989); Lavoie v. Canada,
[2002] 1 S.C.R. 769);
The first case to reach Supreme Court on analogous grounds, it was held that citizenship
was a personal characteristic that is “typically not with in the control of the individual and,
in this sense, immutable”.
•
Marital status (Miron v. Trudel, [1995] 2 S.C.R. 418; Nova Scotia v Walsh (2002))
Miron: “Exclusion of unmarried partners from accident benefits available to married
partners under the policy violates s. 15(1) of the Charter. Walsh: Denial of equal benefit
on the basis of marital status is established in this case, and marital status is an analogous
ground of discrimination”
•
Sexual orientation (Egan v. Canadá, [1995] 2 S.C.R. 513; Vriend v Alberta (1998))
The Court unanimously held that sexual orientation is an analogous ground under Section
15 (it is a deeply personal characteristics that is either unchangeable or changeable only
at unacceptable personal costs) of the Charter and is therefore a prohibited ground of
discrimination. Egan: Same sex partner not covered in law offended sec 15. Vriend:
homosexual discriminated in employment offended sec 15 as well as not saved under
sec 1.
•
Aboriginality-residence of aboriginals is analogous ground as it pertains to a member of
an Indian Band living off the reserve (Corbiere v. Canada (Minister of Indian and Northern
Affairs), [1999] 2 S.C.R. 203).
ANALYSIS IN DETAIL, if more marks. (here analyze directly facts of question)
The definition of discrimination as per courts:
1. Law imposes on claimant a disadvantage in comparison to other comparable persons.
2. Disadvantage is based on listed or analogous ground
3. Disadvantage constitutes impairment of human dignity of the claimant.
FIRST PART OF TEST: SELECTION OF COMPARATOR GROUP INVOLVES 2
INQUIRES:
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Whether TOM has suffered a disadvantage (by reason of possession of characteristics
enumerated or analogous grounds under section 15). This involves comparison with other
similarly situated to TOM. This involves 2 inquiries:
1. Whether the group to which TOM compares himself is the appropriate comparator group,
(once the appropriate comparator group is selected the 2nd is)
2. Whether the distinction of the law draws between the claimant and the comparator group
is disadvantageous to the claimant.
STEP 1: Comparator Group selection involves finding group that shares all characteristics
that qualify for benefit or burden except personal characteristics u/s 15
STEP 2: Requirement of disadvantage
TWO TYPES: If the law treats TOM less favorably, whether by
(1) Withholding a benefit that is granted to the comparator group, or by
(2) Imposing a burden that is not applicable to the comparator group. Is the claim of
disadvantage or unequal treatment made out?
SECOND PART OF TEST, Enumerated or analogous grounds. Here writes only which
ground has caused discrimination.
IF THERE IS AMELIORATIVE PURPOSE, THEN THERE IS NO INFRINGMENT OF
EQUALITY RIGHT (KAPP CASE), BUT IF THERE IS NO SUCH PURPOSE, AND
DISTINCTION IS FROM ONE OF THE ENUMARATED/ANALGOUS GROUNDS, THEN
FOLLOWING STEPS.
1. Race:
-
Discrimination under sec 15(2) would be upheld even u/s 1.
-
This is generally in case of aboriginals that are also recognized u/s 25 and 35 of Charter.
As well as 91 (24) of CA 1867.
2. Religion:
Also a guarantee u/s 2(a). e.g. Hutterian Brethren case where universal requirement of
photo license did not create distinction on the basis of religion.
3. Sex:
-
Benner v Canada: Direct discrimination by sex (i.e. security check for person born to a
Canadian mother as opposed to person born to Canadian Father) was breach of sec 15
as well as not justified under sec 1.
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-
Indirect discrimination may be unintended, but the law needs to make reasonable
accommodation to that condition.
-
Sec 28 guarantee all rights and freedoms equally to all male and female persons and thus
all other charter rights are to be implemented without discrimination between sex.
4. Age:
-
Everyone goes through all stages of age.
-
There is some correlation between age and ability.
-
In A.C. v Manitoba (2009) the act making distinction on the basis of age (i.e. presumption
of capacity arouse at the age of 16) was not discriminatory but was to protect them.
5. Mental or Physical disability:
-
It is immutable i.e. cannot be changed by choice of individual.
-
Disabilities can be accommodated by making changes at workplace or public places
THIRD PART OF TEST:
DISADVANTAGE AND HUMAN DIGNITY/DOES THE DISTINCTION CREATE A
DISADVANTAGE BY PERPETUATING PREJUDICE OR STEREOTYPING.
IF TIME, THEM MENTION THESE 4 CONTEXTUAL FACTORS ALSO.
(1) The existence of pre-existing disadvantage, stereotyping, prejudice or vulnerability: if the
law promotes stereotype, then this indicates a S. 15 infringement ANALYSE EXAM Q
(2) The correspondence between the distinction and the claimant’s characteristics or
circumstances. ANALYSE EXAM Q. It is an assessment by the court of the legitimacy of
the statutory purpose and the reasonableness of using a listed or analogous ground to
accomplish that purpose.
EXAMPLE
Sometimes legislation must make distinctions in order to account for personal
characteristics (e.g Law, the 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
employment than older spouses).
(3) The existence of ameliorative purposes or effects on other groups: this factor is more
relevant where the s 15(2) claim is brought by a more advantaged member of society
ANALYSE EXAM Q. EXAMPLE
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In Law, the SCC held that a factor supporting the view that the impugned CPP provisions
do not violate essential human dignity is the clear ameliorative purpose of the pension
scheme for older surviving spouses. Older surviving spouses, like surviving spouses who
are disabled or who care for dependent children, are more economically vulnerable to the
long- term effects of the death of a spouse).An ameliorative purpose 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
(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 meaning of s 15 of the Charter; ANALYSE EXAM Q.
CONCLUSION
ANALYSIS OF ISSUE# 3
Discuss here S.1, Oakes test from Limitation of charter application material.
CONCLUSION
ANALYSIS OF ISSUE # 4
Discuss which remedy is available to Tom.
Framework of analysis for section 15(2)
-
Section 15(2) enables governments to combat discrimination through programs aimed at
helping disadvantaged groups without fear of challenge under section 15(1) by groups
that don’t share that disadvantage (Kapp).
-
Sec 15(2) enables governments to assist one disadvantaged group, or subset thereof,
without being paralyzed by the necessity to assist all, including others who may suffer
similar or equal disadvantage (Cunningham).
-
To satisfy the requirements of section 15(2), the government must establish that:
a) The program has a genuinely ameliorative or remedial purpose:
✓ the government must establish that its goal in creating the program or benefit in question
was to “improve the conditions of a group that is disadvantaged” (Kapp).
✓ While adopting an “intent-based analysis”, courts need to consider whether it was
“rational for the state to conclude that the means chosen to reach its ameliorative goal
would contribute to that purpose”. And to be “rational”, “there must be a correlation
between the program and the disadvantage suffered by the target group” (Cunningham).
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b) The program targets a disadvantaged group identified by the enumerated or analogous
grounds (Kapp).
✓ “‘Disadvantage’ under section 15 connotes vulnerability, prejudice, and negative social
characterization”.
✓ For a program to qualify, not all members of the group targeted need to be disadvantaged,
as long as the group as a whole has experienced discrimination (Kapp).
SYLLABUS CASES FOR TOPIC-23
Andrews v. Law Society of British Columbia,
[1989] 1 SCR 143:
Facts: Statute of British Columbia required that members of the bar had to be citizens of
Canada.
A British subject and a permanent resident in Canada, met all the requirements for
admission to the provincial bar with the exception that he was not a Canadian citizen.
Issue: Andrews brought a motion to strike down the requirement for citizenship on the
grounds it violated s. 15 of the Charter
Test: Two-part test:
1.
Does the law create a distinction based on an enumerated or analogous
ground?
2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
SCC held that:
-
S.42 of Barristers and Solicitors Act violated s. 15 and it could not be saved under s.
1. The court stated that the section is not a general guarantee of equality, rather it is
only concerned with equal application of the law.
-
SCC went on to hold that citizenship is an analogous ground of discrimination.
-
It was further stated that it should be recognized that not all differences in treatment will
result in inequality and that identical treatment may result in inequality. Overruled
"similarly situated test" where court apply the same legal rules to groups or individuals
who are "similarly situated" where likes are treated alike and dislikes differently.
.
74
Law v Canada [1999]-Not in syllabus
Her full name was Nancy Law
Facts: The appellant, a 30-year-old woman without dependent children or disability, was
denied survivor’s benefits under the Canadian Pension Plan (CPP).
The CPP gradually reduces the survivor’s pension for able-bodied surviving spouses
without dependent children who are between the ages of 35 and 45 by 1/120th of the full
rate for each month that the claimant’s age is less than 45 years at the time of the
contributor’s death so that the threshold age to receive benefits is age 35.’
Court: added the new requirement of “Human Dignity” to sec 15. She was unable to
discharge that burden and therefore, her equality claim was denied even without recourse
to sec 1.
Though Human Dignity was not defined, 4 factors are imp:
1. Pre-existing disadvantage, stereotyping, prejudice or vulnerability
2. Correspondence between distinction and claimants characteristics and circumstances
3. Ameliorative purpose/effect on other groups
4. Nature of interest affected
In the present case 2nd factor was important.
Human dignity Law test has since been discredited in R v Kapp, however the 4
correspondence factors stated above still remain.
R.V. Kapp [2008] SCC 41:
Facts: Claimant argued privileged access granted to aboriginal fishers. It
constituted discrimination to commercial fishers on the base of race.
Arguments: Crown argued that it improved conditions of disadvantaged groups
therefore covered under S.15(2).
Held: Not violation. Instead of considering human dignity, must consider discrimination
re stereotyping and disadvantage. Use the correspondence factors for consideration.
This decision recognizes difficulty found with Law v. Canada (Minister of Employment and
Immigration) in trying to employ “human dignity” as a legal test. No doubt that human
dignity is an essential value underlying s.15, but it is an abstract and subjective notion
that, even with the guidance of the 4 factors outlined in Law are confusing to apply and
have proven to be an additional burden on equality claimants.
75
This case interprets Law so that it does not impose a new and distinctive test for
discrimination, but rather affirms the approach to substantive equality set out in Andrews
v. Law Society and developed in the following decisions.
Human Dignity replaced with perpetuation of disadvantage or stereotyping.
Withler v Canada AG [2011]:((Not in syllabus)
Facts: The appellant were widows whose federal supplementary death benefits were
reduced because of their husbands' ages.
Scheme: Federal civil servant <65 years=widows get annual salary X 2 as benefit
Federal civil servant >65 years=widows get annual salary X 2 as benefityear over 65
10% for each
Issue: The appellants submitted that the age-based benefit reduction, which was part of
a statutory death benefit scheme for certain federal government employees violated
section 15 of the Charter.
Held: Mirror comparator group analysis fails to capture substantive (effect of rule, criteria
process) inequality. Reliance on minor comparator group can obstruct aspects of full
contextual analysis that sec 15 (1) requires. As per the court, substitute substantive for
“Formal” (i.e. the rules, criteria and process itself).
Law was valid because provisions of Act did not: Stigmatize the surviving spouses, did
not treat them unfairly. The scheme was designed to benefit a number of different groups,
and the benefit reductions reflected the reality that different groups of survivors have
different needs.
Fraser vs Canada
Members of the Royal Canadian Mounted Police (RCMP) pay into a pension plan,
and get a pension when they retire. Their pension gets bigger the longer they work
and the more money they earn. Full-time members could “buy back” pension credit
if they were suspended from duty or took unpaid leave. This would make their
pension bigger. But if they job-shared, they weren’t allowed to buy back any
pension credit.
The RCMP began to allow job-sharing as an option instead of unpaid leave. This way,
two or three people could split the duties of one full-time position. It was for the benefit of
both the employees and the RCMP.
Claimants (who went on maternity leave and later worked on job-sharing status)
stated that they should be allowed to buy back the pension credit. They said the
pension plan treated job-sharers (who were mostly women with children) worse
than other members. They said this breached section 15(1) the Canadian Charter
of Rights and Freedoms, part of Canada’s Constitution.
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Court held that pension plan breached the job-sharers’ right to equality. This was
because it disadvantaged women more than men. It didn’t matter that the plan didn’t set
out to hurt women in particular. What mattered was its effect. The job-sharers were mostly
women who were job-sharing because they needed to care for their children. This
maintained the disadvantage caused by the long-standing expectation that women should
be responsible for childcare. The pension plan didn’t allow them to buy back credit like
other people could. The women were in this situation because they had to job-share to
take care of their kids. The majority said the job-sharers should be able to buy back all
their pension credit.
TOPIC # 24 LIMITATIONS OF RIGHTS
Section 1 of CA 1982 performs two functions: It expressly guarantees the rights and
freedoms set out in the Charter and It provides for limits on those guaranteed rights.
R v. Oakes [1986] S.C.R.
In R v Oakes, and as later interpreted in Dagenais v. CBC, [1994] SCC lays down the
criteria that must be satisfied to establish that a limit is reasonable and demonstrably
justified in a free and democratic society:
1. Pressing and substantial objective (1st part of the test)
This step asks whether the Government’s objective in limiting the Charter protected right
has a pressing and substantial objective according to the values of a free and democratic
society.
Example of Application on NCA website Q# 4
Maintaining the fairness of the electoral system to Canadians residing in Canada is a
pressing and substantial objective under the s. 1 analysis: Frank v. Canada (A.G.), 2019
In Ramsden v. Peterborough, [1993] where the total ban on postering was rationally
connected to the objective of avoiding litter, aesthetic blight and associated hazards.
A. How to identify objective?
A law can have very broad (general objective) and this will be a serious problem while
interpreting (part-2) Minimum impairment test. Objective of the law should be related to
infringement of charger right and not too general, as too general object will fail test of
minimal impairment- RJR-MacDonald v. Canada (1995)
•
When a law has specific/narrow objective, it is easy to find that proportionality test (part4) were satisfied- Irwin Toy v. Quebec (1989)
77
•
Denial of right could not be justified- Quebec School Board case
B. What is importance of objective :A sufficiently "pressing and substantial" objective is one that is "consistent with some of
the foundational principles and realization of collective goals of fundamental importance
on which our particular free and democratic society is based.” (As per Dickson CJ-Free
and democratic society to also include- RESEPCT FOR CULTURAL & GROUP
IDENTITY)
•
Consistent with Free and democratic society: Federal Sunday-closing law in R vs. Big M
Drug Mart Case (1985) (infringing freedom of religion) was enacted with objective: To
compel observance of Christian Sabbath. This object was: incompatible with the values
entrenched (fixed) by the Charter of rights (as it was not passed with secular objective
of common day rest for workers [case: R v Edwards and Art 1986] but was passed with
religious objective and therefore not consistent with free and democratic society.
•
Shifting Objective: i.e. purpose of law changes over time with changing objectiveEssentially, you cannot simply alter the objective/purpose of the law to “save it”. The initial
objective still remains and that is the objective we must assess- R v. Big M Drug Mart
Case.
•
Objective of law to decrease cost is generally not sufficiently important or vital objectiveexception to this rule made by SC in Newfoundland v N.A.P.E (2004).
Example of Application
Budgetary savings may be relevant in assessing the salutary effects of a law. In G.(J.) v.
New Brunswick, [1999] the Court found that the proposed budgetary savings of denying
legal aid to parents in custody matters were minimal and has more salutary effects
because the Charter only requires the government to provide legal aid where it is essential
to ensure a fair hearing and the parent’s life, liberty or security is at stake.
On the other hand, in Newfoundland v N.A.P.E (2004). the S.C.C. held that
Newfoundland and Labrador’s severe financial crisis constituted a pressing and
substantial objective which justified the province not paying costs of implementing agreed
upon damages for pay equity violations.
2.Minimal impairment ( 2nd part of the test ) [Hint: There are options in question]
•
Minimal impairment means that laws must not be over-inclusive or broader than
necessary, and improperly apply to people to whom they are not intended to apply. The
main question at the impairment stage is "whether there is an alternative, less
drastic means of achieving the objective in a real and substantial manner".
•
In R v Oakes, the step was phrased to require the limit as being "as little as possible".
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•
In R v Edwards Books and Art Ltd (1986), Court allowed provincial legislation a margin
of appreciation i.e. a zone of discretion within which derogation of charter right could be
tolerated (Sunday closing law) to describe least drastic means.
Example of Application
If a partial ban would also achieve the state’s objective, a total ban (as imposed in this
case) will fail this step. RJR MacDonald v. Canada (A.G.), [1995].
Ford v. Quebec, [1988] s. 58 of the Charter of the French Language, which required the
exclusive (as opposed to predominant) use of French is not minimally impairing.
3. Rational Connection. (abortion example) (3rd part of the test)
This step asks whether the legislation’s limitation of the Charter right have a rational
connection to Parliament’s objective. There must be a "rational connection" (or "causal
link") "between the purpose of the law and the means adopted to effect this purpose".
The rational connection can be achieved by establishing relation between “objective of
law” and “measures enacted by law”
•
R v Oaks - the reverse onus clause (i.e. the burden of proving that person carrying
narcotics was not for trafficking) in question in the case did not pass rational connection
test [possession of small/ negligible quantity of narcotics does not infer trafficking]
Greater Vancouver Transportation Authority v Canadian Federation of Students
(2009) - the law prohibiting placing of political messages on buses did not establish
rational connection between the objective (to provide safe, welcome transit system) as
banning political messages did not create an unwelcoming environment.
4. Proportionality (4th part of the test)
This step asks whether the objective is proportional to the effect of the law. Are the
measures that are responsible for limiting the Charter right proportional to the objective?
At this stage, we take into account the "severity of the deleterious effects of a measure
on individuals or groups" charter rights.
•
Weigh the negative effects of infringing the charter with the benefits of the
impugned law. (ask if charter infringement is too high a price to pay for the benefit of the
law)
HOW TO DO ANALYSIS IN THE EXAM
•
It is advisable to mention all 4 headings of Oakes test in exam
79
•
Generally, in exam test-1 and 3 will most likely be met and question might revolve
around test- 2 and 3.
Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37
Brief Facts: Alberta’s highway traffic law required photograph on driver’s license.
Purpose of law: enhancement of security and integrity of driver’s licensing scheme
& roadside safety.
Infringement: religious freedom of Hutterian Brethren – Bible forbade them from
having photographs taken.
Keywords: Freedom of Religion– Charter–Driving–Oakes Test– Proportionality
Issue: Whether infringement of s 2(a) of the Charter was justified under s.1
Held: Though the Supreme Court held Hutterian claimants had a sincere religious
belief, the main principle to be noted under this head is that the violation was
justified under s. 1. It served an important purpose “Pressing Objective” and did
not impose a severe burden on the claimants. But most importantly according to
McLachlin CJ, the FOURTH STEP – Proportionality is the decisive factor in denying
a s.1 justification, here the salutary (beneficial) effects of the universal photo
requirement outweighed the deleterious (disadvantageous) effects on the
claimants’ religious rights.
TOPIC# 25
SHORT QUESTIONS & ANSWERS
Note: - If there is a separate essay type Q on remedies, then write briefly all
remedies. But if it is part of charter breach Q, then mention only that remedy which
is applicable to the situation with one or two relevant case law.
24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.
Section 52(1) of the CA says that “The Constitution of Canada is the supreme law
of Canada, and any law that is inconsistent with the provisions of the Constitution
is, to the extent of the inconsistency, of no force or effect”.
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Q. 1. What is the difference between s.24 and 52 remedies?
Difference
Section 52(1) provides a remedy for ANY laws that violate Charter rights either in
purpose or in effect. Section 24(1), by contrast, provides a remedy for government
acts that violate Charter rights. It provides a personal remedy against
unconstitutional government action (for example, a police officer breaching your s.8,
search and seizure right). It can be invoked only by a party alleging a violation of that
party’s own constitutional rights: (R. v. Ferguson, 2008 SCC)
*Section 24(1) is only applicable to breaches of Charter rights. Section 52(1) is
applicable to the entire Constitution, including the Charter
*Section 24(1) may be applied by a “court of competent jurisdiction” Section 52(1) may
be applied by any court or tribunal with power to decide questions of law
Q.2. Can you get both the remedies?
In most of the cases, only one remedy will be provided, but getting both remedies is not
an impossibility. This situation was discussed in R. v. Demers, 2004 SCC, where both
remedies were permitted to ensure justice to the individual affected in case the legislature
failed to fix the legislation within the year of the suspended declaration of invalidity.
Q.3. What are different types of remedies?
(1) Striking down the law
(2). Severance
(3) Reading in
(4) Reading down
(5) constitutional exemption
(6) Temporary suspension of the declaration of invalidity.
NOW ALL REMEDIES IN DETAIL:
1. Striking down the law (nullification)
TIP. You would suggest this remedy if you want the law to be struck down. So, the effect
would be as if that law did not exist
EXAMPLE. Lord’s Day Act was held to be unconstitutional because of its religious
purpose and was struck down. R v Big Drug Mart, 1985.
2. Severance
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TIP. You would suggest this remedy if you want part of the statute to be invalid and the
rest can still survive.
EXAMPLE. Tetreault- Gadoury v Canada: SCC held it was a breach of s 15 of the Charter
to restrict unemployment insurance benefits to persons under the age of 65. The court
simply invoked the power of severance to remove the age 65 bar from the Act. The effect
of this was to require payment of unemployment insurance benefits to persons over 65
who was otherwise qualified.
3. Reading in
TIP. You would suggest this remedy if you want to say that something was excluded
wrongly, and it should be included now.
EXAMPLE.A group wrongfully left out of the legislation can be read in. Schachter v.
Canada Employment and Immigration Commission et al., [1992]
• In Vriend v. Alberta, [1998] S.C.R. where sexual orientation was the excluded
ground.(Enumerated ground of sex, if we read in, we may
4. Reading down
TIP. You would suggest this remedy if a statute has two interpretations and one of which
offends and the other does not offend the charter.
EXAMPLE. The remedy of reading down was considered in Rocket v. Royal College of
Dental Surgeons, [1990] 2 S.C.R.
5. constitutional exemption
TIP. You would suggest this remedy if you want to say that legislation will be inapplicable
because its application is unconstitutional.
EXAMPLE. In R. v. Ferguson, 2008 SCC 6, the Court held a constitutional exemption is
not an appropriate remedy for a mandatory minimum sentence. Law that results in a
sentence that violates s. 12 of the Charter.
6. Temporary suspension of the declaration of invalidity
TIP. You would suggest this remedy if you want to say that nullifying or severing (earlier
remedies) would result in a danger to the public. Then in such a situation, the court
temporarily suspends declaration of invalidity.
EXAMPLE. In Re Manitoba Language Rights, [1985] (note: this is not a Charter case),
the Court held that the unconstitutional laws were to be given temporary force and effect
to allow the legislature time to enact the required corrective legislation. So, the “rule of
law” was invoked
*The under-inclusive law (in the Unemployment Insurance Act) would have been given
temporary validity in Schachter v. Canada, [1992] 2 S.C.R.
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*The Court invoked a six-month period of temporary validity after Criminal Code
provisions regarding detention of persons acquitted on the ground of insanity were found
to violate ss. 7 and 9 of the Charter. R. v. Swain, [1991] S.C.R.
Q. What is s. 24 remedy?
24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such remedy
as the court considers appropriate and just in the circumstances.
Section 24 is an individual remedy (but not an exclusive remedy) for the person whose
rights have been infringed and is specific to the Charter. It is typically invoked in cases
where the statute or provision in question is not itself inconsistent with the Charter, but
action taken by government under it nonetheless violates Charter rights.
Q. What is the remedy under section 24(2)?
24. (2) Where, in proceedings under section (1), a court concludes that evidence was
obtained in a manner that infringed or denied any rights or freedoms guaranteed by this
Charter, the evidence shall be excluded if it is established that, having regard to all
circumstances, the admission of it in the proceedings would bring the administration of
justice into disrepute.
Exclusion of evidence. Section 24(2) provides for the exclusion of evidence when it is
established that, having regard to all the circumstances, the admission of it in the
proceeding would bring the administration of justice into disrepute
Vriend v Alberta [1998] 1 S.C.R 493
FACT: Mr Delwin V. was dismissed from his position as a teacher at a private catholic
college solely because of his sexual orientation. The sexual orientation was not included
in the Alberta Human Rights Act. He attempted to file a complaint with the Alberta Human
Rights Commission but could not do so because the Individual’s Rights Protection Act did
not include sexual discrimination as prohibited grounds for discrimination.
ISSUE: Did the Alberta Individual’s Rights Protection Act violate s.15 of the Charter?
HELD: Court held that, the exclusion of protection against discrimination on the basis of
sexual orientation was an unjust violation of s. 15 of the charter right and reading in
sexual orientation as a prohibited ground for discrimination into the Act was the best
remedy for the Charter violation.
Vancouver (City) v Ward 2010 SCC 27
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FACTS: Mr ward was arrested, and strip searched on the suspicion that he intended to
assault then-Prime Minister Chrétien during a civic ceremony in Vancouver. His car was
seized without a warrant and after spending close to 5 hours in custody, the police
released him after concluding that there was no evidentiary basis on which the plaintiff
could be charged with attempted assault and no grounds to seize his car. Mr Ward
subsequently sued the City for damages
ISSUE: whether government actors can be made to pay financial damages to individuals
after infringing upon their rights under the Canadian Charter of Rights and Freedoms.
HELD: The Supreme Court (SCC) unanimously decided that damages are just and
appropriate remedy for charter breach and could be awarded for a breach of an
individual’s Charter rights even where public officials were not acting in bad faith.
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