Emanuel Tucsa
Topic 1 – Sources (Canada’s Constitution)
Constitution law is the law describing the exercise of power by the organs of a State. A
Constitution has been described as a mirror reflecting the national soul: it must recognize
and protect the values of a nation.
Constitution Act, 1867
In Canada there is no single document comparable to the Constitution of the United
States. The closest approximation to such a document is the British North America Act,
1867, which was renamed the Constitution Act, 1867 in 1982.
There are some features that demonstrated the influence of the colonialist period, because
the Constitution Act, 1867 had no:

Amending clause: absence of any general amending clause;

Clause regarding the office of the Governor General;

Prevision of the system of responsible government: there is no mention of the
Prime Minister. This was left in the form of unwritten convention

Creation of a Supreme Court: when the SCC was created in 1875, it was
established by an ordinary federal statute and the right of appeal to the Privy
Council was retained.
Constitution Act, 1982
This Act made some important repairs to Canada’s constitutional law: i) a domestic
amending formula was adopted; ii) the authority of the UK Parliament was terminated;
iii) and the Charter of Rights was adopted.
The phrase Constitution of Canada is defined in s. 52(2) of the Constitution Act, 1982, as
follows:
52(2) The Constitution of Canada includes:
a) the Canada Act 1982, including this Act;
b) the Acts and orders referred to in the schedule; and – this list includes the Constitution
Act, 1867
c) any amendment to any Act or order referred to in paragraph (a) or (b).
* The Charter of Rights is part of the Constitution of Canada because it is Part I of the
Constitution Act, 1982, which is Schedule B of the Canada Act, 1982.
In New Brunswick Broadcasting Co. v Nova Scotia (1993) the SCC held that the definition
in s. 52(2) is not exhaustive. In this case, the Court did not add a new document to the
schedule list referred to in s. 52(2) but added the unwritten doctrine of parliamentary
privilege. However, the Court said that new additions to the schedule should be exercise
with great caution, considering the grave consequences (supremacy and entrenchment).
An important statute of constitutional character that is not included in the schedule to
the Constitution Act, 1982 is the Supreme Court Act.
Supremacy clause: the supremacy clause is s. 52(1), which provides 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.”
Entrenchment clause: s. 52(3): “Amendments to the Constitution of Canada shall be made
only in accordance with the authority contained in the Constitution of Canada.”
*The lack of a formal constitutional document which contains ringing declarations of
national purpose and independence is that the rules of the Constitution are not readily
accessible to non-lawyers.
Parliamentary privilege
The federal Houses of Parliament and the provincial assemblies possess a set of powers
and privileges that are necessary to their capacity to function as legislative bodies. These
powers and rights are known collectively as parliamentary privilege and where
recognized in New Brunswick Broadcasting Co. v Nova Scotia (1993). Thus the
provincial parliament can ban TV on their space because of the principle of parliamentary
privilege.
In this case, the SCC attributed two peculiar characteristics to parliamentary privilege that
distinguish it from the royal prerogative and from other branches of the common law:
i.
The parliamentary privilege is part of the Constitution of Canada;
ii.
The powers authorized by this parliamentary privilege are not subject to the
Charter of Rights.
The ruling in New Brunswick Broadcasting established the special constitutional status
of parliamentary privilege, where the privilege was inherent in the creation of a provincial
Legislature.
The Ontario Court start the day with a prayer: Is this a violation of the Chart right? No,
because of parliamentary privilege, which is a unwritten constitutional principle. Which
do not applies to City Council (municipal).
Case law
The Courts have the task of interpreting the Constitution Act and the other constitutional
statutes and their decisions constitute precedents for later cases so that a body of judgemade or decisonal law, usually called case law , develops in areas where there has been
litigation.
Obviously, the case law thtat interprets the Constitution Acts and the other constitutional
statutes is also constitutional law.
In Re Remuneration of Judges (1997) the SCC asserted that there was an unwritten
principle of judicial independence in the Constitution of Canada that could have the
effect of invalidating statutes that reduced judicial salaries.
In Reference re Secession of Quebec [1998] the SCC invoked unwritten constitutional
principles of democracy, federalism, constitutionalism and the protections of minorities
to hold that, if a province were to decide in a referendum that I wanted to secede from
Canada, the federal government and the other provinces would come under a legal duty
to enter into negotiation to accomplish secession.
Royal Prerogative
The royal prerogative consists of the powers and privileges accorded by the common
law to the Crown. Examples:
i.
Foreign affairs, including making treaties and declaring of war;
ii.
Appointment of the Prime Minister (by the Governor General);
iii.
The issue of passports;
iv.
Creation of Indian reserves;
v.
Conferring of honours such as Queen’s Counsel.
The royal prerogative, different from parliamentary privilege, must be exercised in
conformity with the Charter of Rights and other constitutional norms, but also that
administrative-law norms such as the duty of fairness be observed.
Conventions
Conventions are rules of the constitution that are not enforced by the law courts, so, they
are best regarded as non-legal rules. A convention stipulates that the Governor General
will exercise his powers only in accordance with the advice of the cabinet or in some
cases the Prime Minister. For example, it is a convention that stipulates that the royal
assent on bills shall never be upheld.
Conventions are often distinguished from “usages”: a convention is a rule which is
regarded as obligatory by the officials to whom it applies; a usage is not a rule, but merely
a governmental practice which is ordinarily followed, although it is not regarded as
obligatory. A usage may develop into a convention.
A convention could be transformed into law by being enacted as a statute.
*Since conventions are not legally enforceable, one may well ask: why are they obeyed?
The primary reason is that a breach of convention would result in serious political
repercussions and eventually in changes in the law.
Patriation Reference (1981): court recognize a convention
The Patriation Reference was a Supreme Court of Canada case that considered whether
the federal government could amend Canada's Constitution without provincial consent.
What was the issue?

Whether the federal government could amend the Constitution without provincial
consent

Whether there was a constitutional convention that required provincial consent for
amendments that affected provincial powers
What was the decision?

The federal government could amend the Constitution without provincial consent

However, amending the Constitution in areas that affected provincial powers
would be a breach of constitutional convention

The court found that constitutional conventions are of great significance
What was the outcome?

The court's decision protected the federal character of the Constitution

The court's decision established that amendments to the Constitution require
a substantial degree of provincial consent
Unwritten constitutional principle do not overrule the parliamentary sovereignty
Toronto (city) v Attorney General 2021 SCC 34
Ontario statute reducing the size of Toronto City Council, reducing the number of wards
from 47 to 25. The SCC held that unwritten constitutional principles do not confer
upon the judiciary power to invalidate legislation that does not otherwise infringe
the Charter, nor do they limit provincial legislative authority over municipal institutions.
The supreme Court decided that “the unwritten constitutional principle of democracy
cannot be used as a device for invalidating otherwise valid provincial legislation.
Topic 3 - Constitutionalism - Great content for essay questions
Constitutionalism is the idea, often associated with the political theories of John Locke
and the founders of the American republic, that government can and should be legally
limited in its powers, and that its authority or legitimacy depends on its observing these
limitations.
Entrenchment
According to most theorists, another important feature of constitutionalism is that the
norms imposing limits upon government power must be in some way, and to some degree,
be entrenched, either legally or by way of constitutional convention. In other words, those
whose powers are constitutionally limited—i.e., the institutions of government—must
not be constitutionally at liberty to change or expunge those limits at their pleasure.
Entrenchment not only facilitates a degree of stability and predictability over time (a
characteristic aspiration of constitutional regimes), it is arguably a requirement of the very
possibility of constitutionally limited government.
Arguments for entrenchment can be divided into two groups: the general and the
particular. General arguments for entrenchment are those that apply to any set of rules,
and the two most important turn on stability and identity. Entrenchment can make an
area of law more stable by making it harder to change. It can also indicate areas of law
that the state regards as essential to its identity: entrenchment acts as a signal of the
importance of the rules.
Stability: Not only can people predict how the state will exercise its coercive power over
them, they can rely on the state to help them pursue projects and collaborations. The
capacity to form legally binding agreements is created: contracts can be made and are
enforced.
Identity: It is sometimes claimed that certain rules are so important, so essential to
constitutional identity, their change would challenge the very continuation of the state.
Though popular, the argument for entrenchment from identity is weak. This is an overly
reductionist account of state identity. The state is made up of a number of elements—
territory, members, institutions, and the rules that constitute and connect them.
Particular arguments for entrenchment:
i.
reminding the body of reasons relevant to the alteration of the law: the legislature
is compelled to address the reason animating the original entrenchment when
trying to amend the constitution. It could be that being forced to address these
issues will, by itself, deter the legislature from acting;
ii.
protecting groups within the legislature (counter-majority): By requiring a
supermajority for certain decisions, an entrenching rule can protect the minority
group, either by preventing the majority from overriding the minority or, more
subtly, by requiring the majority to negotiate with the minority before the law can
be changed;
iii.
protecting regions: A further, analogous, argument for entrenchment turns on its
capacity to protect regions from decisions made at the national level by including,
in some way, these regions within the decision to change rules relating to the
constitutional balance between the national level of government and the regions;
iv.
protecting institutions in the constitution
v.
guarding against moral panics: Moral panics are periods of temporary,
widespread, irrationality, during which a polity forgets the fundamental moral
beliefs on which its constitution rests, and rushes to make changes that it will later
regret. After a terrorist attack, for example, a state might forget the importance of
due process, or its opposition to torture. Entrenchment rules can help protect
against moral panics in two ways: by forcing the law-maker to address the earlier
constitutional commitments that are being overturned during the panic, and,
second, by slowing the process of legal change
Arguments against entrenchment
1) that entrenchment rules make it excessively hard to change the law, making it
difficult for institutions to respond to the needs and wishes of the citizenry, and
making it harder to hold law-makers accountable for their decisions;
Democracy requires, in part, that a legislature be effective, that it be capable of
enacting laws. By making it harder to change the law entrenchment may
sometimes run against democracy, preventing the legislature from pursuing the
wishes and interests of its electorate.
2) entrenchment rules may create friction between institutions within the
constitution, either by enabling one institution to limit another or by encouraging
institutions to attempt to circumvent these limits.
A final danger brought by some forms of entrenchment is the risk of tit-fortat behavior. Where an institution starts to engage in self-entrenchment, placing
limits on its future incarnations, there is a chance that entrenchment will become
a tool of party politics. When one political group controls the legislature it may
seek to entrench its political objectives to prevent its decisions being overturned
after an election. When control of the chamber shifts, the incoming party may
have little hesitation in using the same device against its rivals.
Three reasons “why a constitution is entrenched beyond the reach of simple majority
rule”:

1. constitution may provide an added safeguard for fundamental human rights
and individual freedoms which might otherwise be susceptible to government
interference.

constitution may seek to ensure that vulnerable minority groups are endowed
with the institutions and rights necessary to promote their identities against the
assimilative pressures of the majority.”

constitution may provide for a division of public power that allocates political
power amongst different levels of government.”
Canadian Constitution as a “Living Tree”
In 1929, the Judicial Committee of the United Kingdom’s Privy Council decided one of
the most famous and influential cases in Canadian legal history: R v Edwards, commonly
referred to as “The Persons Case.” In addition to setting a landmark precedent regarding
the legal status of women, Edwards addressed key questions surrounding the nature and
interpretation of constitutions. In addressing these questions, the Privy Council
introduced, into Canadian constitutional theory, rhetoric, and practice, a powerful
metaphor, the Constitution as a living tree, that has continued to exert its influence
throughout the decades.
Liberalism
Courtland article:

Liberty is given primacy as a political value

“political authority and law must be justified”

“If citizens are obliged to exercise self-restraint, and especially if they are obliged
to defer to someone else’s authority, there must be a reason why”

Emphasis on individual rights and often on rights to private property
Liberals have typically maintained that humans are naturally in “a State of perfect
Freedom to order their Actions…as they think fit…without asking leave, or depending
on the Will of any other Man” (Locke, 1960 [1689]
Liberalism is a philosophy that starts from a premise that political authority and law must
be justified. If citizens are obliged to exercise self-restraint, and especially if they are
obliged to defer to someone else’s authority, there must be a reason why. Restrictions on
liberty must be justified.
Negative liberty
I am normally said to be free to the degree to which no man or body of men interferes
with my activity. Political liberty in this sense is simply the area within which a man can
act unobstructed by others.
The heart of liberty is the absence of coercion by other agents
Positive liberty
A person is free only if she is self-directed or autonomous. In this sense, positive liberty
is an exercise-concept. One is free merely to the degree that one has effectively
determined oneself and the shape of one’s life
Classic liberalism
For classical liberals — ‘old’ liberals — liberty and private property are intimately
related. Indeed, classical liberals and libertarians have often asserted that in some way
liberty and property are really the same thing; it has been argued, for example, that all
rights, including liberty rights, are forms of property; others have maintained that property
is itself a form of freedom.
New Liberalism
The third factor underlying the currency of the new liberalism was probably the most
fundamental: a growing conviction that, so far from being ‘the guardian of every other
right’ (Ely, 1992: 26), property rights foster an unjust inequality of power.
Political Liberalism
The aim of political liberalism is not to add yet another sectarian doctrine, but to provide
a political framework that is neutral between such controversial comprehensive doctrines.
Rawls’s notion of a purely political conception of liberalism seems more austere than the
traditional liberal political theories discussed above, being largely restricted to
constitutional principles upholding basic civil liberties and the democratic process.
Nevertheless, it is important to appreciate that, though we treat liberalism as primarily a
political theory, it has been associated with broader theories of ethics, value, and society.
Indeed, many believe that liberalism cannot rid itself of all controversial metaphysical
(Hampton, 1989) or epistemological (Raz, 1990) commitments.
Liberal Ethics
This is not just a theory about politics: it is a substantive, perfectionist, moral theory about
the good. On this view, the right thing to do is to promote development or perfection, but
only a regime securing extensive liberty for each person can accomplish this (Wall, 1998).
This moral ideal of human perfection and development dominated liberal thinking in the
latter part of the nineteenth century, and much of the twentieth.
Persons case (Edwards v AG Canada [1930]) (women wanting to be senators): liberalism
feminist theories
Federalism
In a federal state, government power is distributed between a central (or national or
federal) authority and several regional (or provincial or state) authority, in such way that
every individual in the state is subject to the laws of 2 authorities and neither is
subordinate to the other. The municipalities are subordinate to a regional authority.
In this sense, the federal principle is the method of dividing powers so that the general
and regional governments are each, within a sphere, co-ordinate and independent.
While the provinces are not perfectly equal, the differences are not so marked as to justify
special status for any province. Of course, Quebec already enjoys a de facto special status,
as the only province that has opted out of the Canada Pension Plan and the Hospital
Insurance Plan. However, these arrangements do not give to Quebec any special
constitutional powers.
Subsidiarity: is a principle of social organization that prescribes that decisions affecting
individuals should, as far as reasonably possible, made by the level of government closest
to the individuals affected. In Canada, this principle has rarely been invoked in the
political discourse, but it does offer some useful ways of thinking the Constitution of
Canada.
This principle was invoked in 114957 Canada v Hudson (2001) as a prelude to deciding
that a general welfare power in Quebec’s municipal legislation authorized a municipality
to pass a by-law severely restricting the use of pesticides. The SCC held that the local
decision, which was to impose more stringent standards on pesticide use in the local area,
should be respected.
Reasons for federalism
The federal form of government has some distinctive advantages. In a country that covers
a large area, and includes diverse regions, there may be advantages of efficiency and
accountability in dividing the powers of government so that a national government is
responsible for matters of national importance and provincial or state governments are
responsible of matter of local importance.
Judicial interpretation of the distribution powers
The Judicial Committee of the privy Council was the final court of appeal for Canada in
constitutional cases until appeals were abolished in 1949. They believed in strong
provincial rights and gave a narrow interpretation to the principal federal powers (the
residuary power and the trade and commerce power) and wide interpretation to the
principal provincial power (over property and civil rights in the province).
Supremacy of the Constitution
The Constitution must be supreme, meaning that it must be binding on, and unalterable
by, each of the central and regional authorities. The same idea is sometimes expressed by
saying that a federal constitution must be rigid (entrenched), which means that
amendments
require
a
special
and
more
difficult
process.
–
see
CONSTITUCIONALISM
*S. 52(1) is the current basis of judicial review in Canada.
The Constitution Act, 1982 also broadened the scope of judicial review by adding a
Charter of Rights to the Constitution of Canada.
Role of Courts
Development of judicial reviews
Marbury v Madison (1803) the Supreme Court of the US took upon itself the power to
settle disputes about the distribution of legislative power. The Court held that in a conflict
between the Constitution and a statute, the Constitution should prevail, because I was
superior to the statute.
In Canada, the Privy Council was the ultimate court of appeal of Canada in the years after
1867 until 1949, and assumed the right to review the validity of legislation enacted by the
Canadian legislative bodies.
Limitations of judicial review
The judicial review of the SCC has mainly two functions: i) to enforce the distributionof-powers (the rules of federalism); ii) and, since 1982, to enforce the Charter restrictions
and the other non federal restrictions.
The judges upon whom the large task of judicial reviews rests are not well suited to the
policy-making that is inevitably involved. Their mandate to make decisions differs from
that of other public officials in that judges are not accountable to any electorate or to
any government for their decisions.
In this sense, judges’ lack of democratic accountability, coupled with the limitations
inherent in the adversarial judicial process, dictates that the appropriate posture for the
courts in distribution of powers (federalism) cases is one of restraint: the legislative
should be overridden only where its invalidity is clear.
Secession
Secession Reference (1998)
The Court was asked whether Quebec could secede unilaterally from Canada. The SCC
stated the principle that a province can’t separate if infringe the rule of law (which
constitutionalism is corollary) because a secession would require an amendment of the
Constitution. Consequently, there is no right to secede unilaterally.
It followed that if Quebec held a referendum that approved a secession, then the other
provinces and the federal government would have the obligation to negotiate the terms
of secession. The Court found it to be a corollary of the fundamental, but unwritten,
constitutional principles of democracy and federalism.
The issues were:
i.
Under the Constitution of Canada, can the National Assembly, legislature or
government of Quebec effect the secession of Quebec from Canada
unilaterally? Quebec could not, despite a clear referendum result, purport to
invoke a right of self-determination to dictate the terms of a proposed secession
to the other parties to the federation. The democratic vote, by however strong a
majority, would have no legal effect on its own and could not push aside the
principles of federalism and the rule of law, the rights of individuals and
minorities, or the operation of democracy in the other provinces or in Canada as
a whole. Democratic rights under the Constitution cannot be divorced from
constitutional obligations. Equally, in the event of demonstrated majority support
for Quebec secession, the content and process of the negotiations will be for the
political actors to settle. To the extent issues addressed in the course of
negotiation are political, the courts, appreciating their proper role in the
constitutional scheme, would have no supervisory role
ii.
Does international law give the National Assembly, legislature or government
of Quebec the right to effect the secession of Quebec from Canada
unilaterally? In this regard, is there a right to self-determination under
international law that would give the National Assembly, legislature or
government of Quebec the right to effect the secession of Quebec from
Canada unilaterally? Quebec does not meet the threshold of a colonial people
or an oppressed people, nor can it be suggested that Quebecers have been denied
meaningful access to government to pursue their political, economic, cultural and
social development. In the circumstances, the "National Assembly, the legislature
or the government of Quebec" do not enjoy a right at international law to effect
the secession of Quebec from Canada unilaterally.
Judicial review on federal grounds
When a question arises whether the federal Parliament or a provincial legislature has
enacted a law that comes within the Constitution’s definition of the powers allocated to
the enacting body, an authoritative answer to that question can be provided only by the
courts. This is the justification for judicial review of legislation, which is the power to
determine whether any particular law is valid or invalid (ultra vires).
For Hogg a federal ground of judicial review takes priority over a Charter ground
because of the power of override (s. 33 of the Charter) that enables the Parliament or
legislature to override most of the provisions of the Charter by including in a statute a
declaration that the statute is to operate notwithstanding the relevant provision of the
Charter.
There are two steps involved in the process of judicial review:
i.
The first step is to identify the matter (or pith and substance) of the challenged
law, which involves the characterization of the law;
ii.
The second step is to assign the matter to one of the classes of subjects (or heads
of power).
Characterization of laws
1) Matter
The first step in judicial review is to identify the matter of the challenged law that is: the
constitutional value or the true meaning or the pith and substance represented by the
challenged legislation. It is important to identify the dominant or most important
characteristic of the challenged law.
There are many examples of laws which have been upheld despite their incidental impact
on matters outside the enacting body’s jurisdiction.
Bank of Toronto v Lambe (1887)
The Privy Council upheld a provincial law which imposed a tax on banks. The dominant
feature of the law was to raise revenue, and accordingly the matter of the law was
taxation, not banking.
Alberta Bank Taxation Reference (1938)
Bank of Toronto v Lambe may be contrasted with Alberta Bank Taxation Reference, in
which the Privy Council struck down an Alberta law which imposed a special tax solely
on the banks. Their lordships concluded that the pith and substance of this particular law
was to discourage the operation of the banks in Alberta and, therefore, came within
banking.
Quebec v Canadian Owners Pilots Association (2010)
A provincial law prohibited non-agricultural uses of land zoned by the province as an
“agricultural zone”. The SCC agreed that the law was valid provincial law, because it was
in relation to land use or agriculture. However, the SCC held that the location of
aerodromes was part of the essential core of the federal power over aeronautics, and the
provincial law could not have effect of impairing that core.
Therefore, while the agricultural zoning law was valid for most of its applications, it
could not constitutionally apply to the use of land for aerodromes. The SCC read
down the statute based on the doctrine of interjurisdictional immunity, which is an
exception to the general rule of the validity of the incidental effects.
2) Double aspect
The double aspect (or matter) doctrine recognizes that some kinds of laws have both a
federal and a provincial matter and are therefore competent to both of the federal and te
provinces. The double aspect doctrine is applicable when the contrast between the relative
importance of the two features is not so sharp.
When the courts finds that the federal and provincial characteristics of a law are roughly
equal in importance, then the conclusion is that laws of that kind may be enacted by
either the Parliament or a Legislature.
The double aspect doctrine confers effective concurrency of power over some fields of
law, and gives rises to the possibility of conflict between a valid federal law and a valid
provincial law.
Examples:
i.
driving offences, because it is related to property and civil rights but also concerns
criminal law;
ii.
securities regulation creating offences or civil remedy for insider trading.
3) Purpose
As we seen in Alberta Bank Taxations Reference if the court concludes that the purpose
of the ostensible tax is to regulate or destroy the banks, then the law will be characterized
as being in relation to banking and will held to be invalid.
The cases of Sunday closing present an interesting illustration because in R. v Big Drug
Mart (1985) the SCC concluded that the purpose of the law was religious and the law
was truck down on Charter grounds. However, in R. v Edwards Book and Art (1985) the
SCC understood that the law was a valid exercise of provincial power over property and
civil rights in the province because the purpose was a secular one, providing a uniform
pause day for retail workers.
In determining the purpose of the law the interpretation uses the mischief rule and it is
relevant the legislative history because helps to place the statute in its context.

Intrinsic Evidence: what the law itself says, including elements such as a statute’s
title (long title and short title), preamble, or purpose clause(s).

Extrinsic Evidence: evidence found outside of the law, e.g., policy papers,
legislative debates, comments made by the government, minutes of parliamentary
committees, Hansard, related legislation (R. v. Morgentaler (1993)), etc.
4) Effect
In characterizing a statute – identifying its matter or pith and substance – a court will
always consider the effect of the statute, or how the statute changes the rights and
liabilities of those who are subject to it.
In this sense, in Alberta Bank Taxation Reference the SCC examined the impact on the
banks of the tax which Alberta proposed and concluded that the statute should be
characterized as in relation to banking rather than taxation.
There have been cases in which the Court examined the administration of a statute as
an aid to classify it for constitutional purposes.
In Saumur v Quebec (1953) there was a constitutional challenge to a municipal by-law
which made it and offence to distribute literature in the streets of Quebec without having
previously authorization. The SCC understood that the chief of police would examine the
content of the books, so, he used the by-law as a vehicle of censorship. In this case, the
court was influenced by the actual use of the by-law.

Practical effects: “the actual or predicted results of the legislation's operation
and administration” (R. v. Morgentaler (1993)); “‘side’ effects flow[ing] from
the application of the statute which are not direct effects of the provisions of the
statute itself (Kitkatla Band v. British Columbia (2002), References re
Greenhouse Gas Pollution Pricing Act (2021)) – this will be asked on the exam
5) Efficacy
The Court in reviewing the law should not pass judgment on the likely efficacy of the
statute. That would breach the longstanding injunction that courts are not concerned with
the wisdom or policy legislation. Parliament is the judge of whether a measure is likely
to achieve its intended purposes; efficaciousness is not relevant to the Court’s division of
power analysis.
6) Colourability
The colourability doctrine is invoked when a statute bears a formal trappings of a matter
within jurisdiction, but in reality is addressed to a matter outside jurisdiction. In other
words, it simply means that form is not controlling in the determination of essential
character.
R v Morgentaler (no. 3) (1993): The SCC struck down a Nova Scotia statute thar required
medical procedures to be performed in a hospital. The Court held that the statute were
aimed primarily at suppressing the perceived harm or evil of abortion clinics. This is a
remarkable application of the colourability doctrine.
7) Presumption of constitutionality
Judicial restraint in determining the validity of statutes may be expressed in terms of
presumption of constitutionality. Such a term transfers from the law of evidence the idea
that a burden of demonstration lies upon those who could challenge the validity of a
statute which has emerged from the democratic process.
Severance
It is possibly that a court say that only a part of a statute is invalid, and the balance of the
statute would be balance if its stood alone. In this case, the court apply a severance of the
ultra vires part of the law.
The rule which the courts have developed is that severance is inappropriate, when the
remaining good part is so inextricably bound up with the part declared invalid that what
remains cannot independently survive. On the other hand, where the two parts can exist
independently of each other, then severance is appropriate.
It is very rare to see courts applying severance because they have usually struck down the
entire statute. In other words, there seems to be a presumption against severance.
Severance is far more common in Charter cases than in federalism cases.
Reading down
The reading down doctrine requires that, whenever possible, a statute is to be interpreted
as being within the power of the enacting legislative body, What this means in practice is
that general language in a statute which is literally apt to extend beyond the power of the
enacting Parliament or Legislature will be construed (interpreted) narrowly so as to
keep it within the permissible scope of power.
Reading down is simply a canon of interpretation.
Interjurisdictional immunity
A law that purports to apply to a matter outside the jurisdiction of the enacting legislative
body may be attacked in 3 different ways:
i.
validity: a law is invalid because the matter of the law is outside the jurisdiction
of the enacting body. The question of validity depends upon the characterization
of the law.
ii.
Applicability: when a law is valid but applies to a matter outside the jurisdiction
of the enacting body, then it has to be interpreted narrowly by the reading down
doctrine. This is the issue of interjurisdictional immunity.
iii.
Operability: a law can be valid and applicable but inoperative because of a conflict
of laws, and here we apply the doctrine of federal paramountcy
Thus, it is the issue of applicability that is treated when we talk about interjurisdictional
immunity. The doctrine of interjurisdictional immunity means that the powers set out in
the Constitution Act must be preserved such that neither level of government has the
authority to infringe in a major way on the powers of the other level of government. The
doctrine states that there's a core to each federal subject matter that can't be reached by
provincial laws.
“Vital part” test – a provincial law may not impair the basic, minimum and unassailable
content (the core) of a federal legislative power or a vital or essential part of a federal
undertaking.
**The interjurisdictional immunity applies where the law is valid in most of its
applications, but can be interpreted so as not to apply to the matter that is outside the
jurisdiction – this means that the law is inapplicable to the extra-jurisdictional matter,
such as by reading down. This is known as interjurisdictional immunity.
Federally-regulated undertakings
The idea of interjurisdictional immunity find its genesis in cases concerning federallyincorporated companies but it is more commonly applied when it comes to federallyregulated undertakings.
It is settled that undertakings engaged in interprovincial or international
transportation or communication (s. 92(10) are immune from otherwise valid
provincial law which would have the effect of sterilizing the undertaking.
*Bell 1966 case (1966)
The SCC held that Bell Telephone Company (an interprovincial undertaking) was
immune from a provincial minimum wage law because it affected a vital part of the
management and operation of the undertaking.
In Bell 1988 the SCC reaffirmed its commitment to the vital part test and held that the
provincial law was constitutionally incapable of applying to the federal undertaking.
Occupational health and safety laws regulate labour relations within a firm and
affected a vital part of the management and operation of the firm.
Canadian Western Bank v Alberta (2007)
The case considered whether Alberta Insurance Act could regulate federally chartered
banks that promote insurance products. The issue was whether this Act could
constitutionally apply to the banks.
The Court held that the vital part of an undertaking should be limited to functions that
were essential (or indispensable or necessary) to the federal character of the undertaking.
And concluded that promotion of insurance by banks was too far removed from the
core of banking to qualify as a vital part of the baking undertaking. Therefore, the Alberta
Insurance Act could validly apply to the banks.
The Court was unsympathetic to the doctrine of interjurisdictional immunity on the basis
that a court should favour the ordinary operation of statutes.
Quebec v. Lacombe (2010)
A municipal by-law in Quebec prohibited the use of lakes as aerodromes; land use
zoning = provincial (provinces usually delegate to municipalities) but aeronautics =
federal; the court found that the pith and substance of the law was aeronautics, not zoning,
and so the bylaw was struck down because it was outside (ultra vires) provincial
competence. Here they applied the doctrine of interjurisdictional immunity.
Quebec v Canadian Owners Pilots Association (2010)
A provincial law prohibited non-agricultural uses of land zoned by the province as an
“agricultural zone”. The SCC agreed that the law was valid provincial law, because it was
in relation to land use or agriculture. However, the SCC held that the location of
aerodromes was part of the essential core of the federal power over aeronautics, and the
provincial law could not have effect of impairing that core.
Therefore, while the agricultural zoning law was valid for most of its applications, it
could not constitutionally apply to the use of land for aerodromes. The SCC read
down the statute based on the doctrine of interjurisdictional immunity, which is an
exception to the general rule of the validity of the incidental effects.
Thus, the SCC applied the doctrine of interjurisdictional immunity to hold that the
provincial law was inapplicable to the extent that the location of aerodromes was
essential to the federal power over aeronautics and was therefore within the core of the
power.
Interpretation of Constitution
Once the matter (or pith and substance) of a challenged law has been identified, the
second stage in judicial review is to assign the matter to one of the classes of subjects
(or heads of legislative power). What is involved here is the interpretation of the powerdistributing language of the Constitution.
Exclusiveness
This means that a particular matter will come within a class of subjects in only one list.
Some laws are available to both levels, but that is because such laws have a double aspect
(or matter), not because the classes of subjects duplicate or overlap each other; they do
not.
Concurrency
As noted, in the Canadian Constitution most of the classes of subjects (heads of power)
are exclusive to the Parliament or legislature to which they are assigned. There are
however, 3 provisions that explicitly confer concurrent powers:
i.
The provinces have the power to legislate about export of natural resources (s.
92A(2), and s. 92A(3) is explicit that the power is concurrent with the Federal
Parliament’s trade and commerce power.;
ii.
Power to make laws in relation to old age pensions and supplementary benefits
(s. 94A);
iii.
Agriculture and immigration (s. 95).
Exhaustiveness
The distribution of powers between the federal Parliament and the provincial Legislatures
is exhaustive. It goes without saying that the framers of the Constitution could not foresee
every kind of law which has subsequently been enacted. But they did make provision for
new or unforeseen kinds of laws:
i.
S. 92(16): confer the provinces power to regulate all matters of a merely local or
private nature in the province;
ii.
S. 91: gives the Parliament the residuary power to make laws for the peace, order
and good government of Canada – POGG power.
Progressive interpretation
The doctrine of progressive interpretation (or living tree) is one of the means by which
the Constitution Act, 1867 has been able to adapt to the changes in Canadian society. The
general language used to describe the classes of subjects is not to be frozen.
The Constitution as a living tree was stated in the Persons Case.
Same-Sex Marriage Reference (2004)
The SCC denied that it was bound by the original understanding of the Constitution,
which described as “frozen concepts” reasoning. The Court said that the Constitution is
“a living tree which, by way of progressive interpretation accommodates and addresses
the realities of modern life”. Thus, the SCC interpretated the constitution and concluded
that marriage, from a perspective of the state, was a civil institution.
The progressive interpretation does not liberate the courts from the normal constraints
of interpretation because the interpretation must be anchored in the historical context
of the provision.
Unwritten constitutional principles
The Constitution of Canada is constructed on a set of unwritten or implicit principles that
have profoundly influenced the drafting of the text and that continue to influence its
interpretation.
Democracy, constitutionalism, the rule of law, the independence of the judiciary, the
protection of civil liberties and federalism, are among those principles.
Manitoba Language Reference (1985)
The SCC held that in the process of constitutional adjudication, the Court may have regard
to unwritten postulates which form the very foundation of the Constitution of Canada. In
that case, the applicable unwritten postulate was the principle of the rule of law. This
was no rhetorical flourish. The Court invoked the principle to solve the crisis that would
have result from the court holding that all of the laws of Manitoba enacted since 1890
were invalid because published only in English. The solution was to hold the laws enacted
in English to be invalid, but also to hold that the laws were to remains in force for a
temporary period stipulated by the Court while existing laws were translated and reenacted in French.
Re Remuneration of Judges (1997)
The SCC held that 3 provincial statutes reducing the salaries of provincial court judges
were unconstitutional because they violated the judicial independence.
Secession Reference (1998)
The SCC held that the unilaterally secession of a province would be unconstitutional
because would violate the unwritten principles of democracy, federalism,
constitutionalism and the protection of minorities. And the Court said that democracy
and federalism required that, if a province voted to secede, the rest of Canada would come
under a legal obligation to negotiate the terms of secession with that province.
Trial Lawyers’ Association of British Columbia v British Columbia (2014)
The Court struck down a rule of the superior court of British Columbia that imposed a
hearing fee on a litigant who set down a civil case for a trial. The fee escalated and
amounted to $35,000 and the SCC held that this hearing fee was an unconstitutional
restriction on access to the superior court and that access to the courts is essential to the
rule of law.
Summarize of Structure of Judicial Review Analysis on Federalism
Grounds
1) Validity: Which level of government has constitutional authority to pass a law?
i.
Pith and substance: What is the “matter” of the challenged law?
Characterization: it is describing what the law is about, it is not the step to
determine which section of the constitution
ii.
Determining distribution of power: Based on the law’s “matter”,
determine which level of government (federal or provincial) has
legislative power over it by looking at Constitution, especially
Constitution Act, 1867, ss. 91 and 92
2. What if the law overlaps with the powers of the other level of government?
i.
Incidental effects (permissible)
ii.
Interjurisdictional Immunity (this can result in a restriction of the law’s
application) – QUESTION with only one law involved
3. What if two valid and applicable laws conflict?
i.
Paramountcy (TWO LAWS)
Conclusion
Our exercise question asks about a provincial increase in the minimum wage applying to banking
(a federally-regulated sector). As in the case of Commission du Salaire Minimum v Bell Telephone
Company of Canada, an increase in the minimum wage for a banking employee would impair a
vital part of the operation of a commercial undertaking that is federally-regulated. The provincial
law, although applicable to most employment in Ontario, would be inapplicable to banks and
thus also to Sophie’s job at the bank.
Paramountcy
Problem of inconsistency (conflict)
Every legal system has to have a rule to reconcile conflicts between inconsistent
(conflicting) laws. The rule that has been adopted in Canada by the courts is the doctrine
of federal paramountcy: where there are inconsistent (conflicting) federal and provincial
law, it is the federal law which prevails.
The doctrine of paramountcy applies where there is a federal and a provincial law which
are (1) each valid, and (2) inconsistent.
Definition of inconsistency
A wide definition of inconsistency will result in the defeat of provincial laws in “fields”
which are “covered” by federal law; a narrow definition, on the other hand, will allow
provincial laws to survive so long as they do not “expressly contradict” federal law.
The wide definition is the course of judicial activism in favour of central power; the
narrow definition is the course of judicial restraint, leaving all but irreconcilable
conflicts to be resolved in the political arena. The Canadian courts have followed the
course of restraint, narrowly defining what is “inconsistency”.
Presumption of constitutionality: Where it is possible to interpret either the federal law
or the provincial law so as to avoid the conflict that would trigger paramountcy, then that
interpretation should be preferred.
Express contradiction
There are two situations that case law identified an express contradiction:
i.
Impossibility of dual compliance;
ii.
Frustration of federal purpose.
*Only express contradiction suffices to invoke the paramountcy doctrine. A federal law
that is supplementary or duplicative of a federal law is not deemed to be inconsistent.
A) Impossibility of dual compliance
An express contradiction occurs when it is impossible for a person to obey both laws, or
when compliance with one law involves breach of the other (Smith v. the Queen 1960).
Examples of cases in which dual compliance (harmony) is possible (paramountcy did not
apply):
Multiple Access v. McCutcheon (1982) – insider-trading provisions of provincial
securities law were not in conflict with insider-trading provisions of federal corporate
law because they did not conflict; rather, they provided the same remedy for the same
conduct and so were in harmony, so no conflict despite the duplication. Paramountcy
doctrine did not apply.
Marine Services International v. Ryan Estate (2013) – tort action for maritime
negligence. Federal liability law that allowed tort action vs provincial workers’
compensation benefits (also barred tort action when benefit were payable).
Where it is possible to interpret either the federal law or the provincial law so as to avoid
the conflict that would trigger paramountcy, then that interpretation should be preferred.
Court held that federal law did not apply to persons who were covered by provincial
benefits. This is what is called presumption of constitutionality.
Example where dual compliance was impossible
In 2015, the SCC decided three cases on the question whether the federal Bankruptcy
and Insolvency Act (BIA) contradicted provincial laws. There was no doubt about the
validty of the BIA, which was authorized by the federal power over bankruptcy and
insolvency (s. 91(21)), or the three provincial laws, each of which was authorized by the
provincial power over property and civil rights in the province (s. 92(13)).
Alberta v Moloney (2015)
The SCC held that there was a conflict between the laws and the federal BIA therefore
prevailed to discharge the judgment debt and render inoperative the provincial Traffic
Safety Act denying privileges to Moloney.
407 ETR Concession Co. v Canada (2015)
The Court held that there was a conflict between the federal and provincial laws
rendering inoperative Highway 407 Act’s provisions for the enforcement of the toll debt
because it frustrated the purpose of the federal law.
B) Frustration of Federal Purpose
Canadian courts also accept a second case of inconsistency, namely, where a provincial
law would frustrate the purpose of a federal law. The courts have to interpret the federal
purpose and then decide whether the provincial law would have the effect of frustrating
the federal purpose.
Law Society of B.C. v. Mangat (2001)
Federal Immigration Act allowed a party to be represented by a non-lawyer before the
Immigration and Refugee Board; but B.C.’s Legal Profession Act provided that nonlawyers were prohibited from practising law and appearing before a federal
administrative tribunal; not an express conflict because a party could obey provincial law
and hire a lawyer.
the Court found that the purpose of the federal law was to establish an informal, accessible
and speedy process and that purpose would be defeated if only lawyers allowed to appear
and concluded that the federal purpose was frustrated.
In other words, the compliance with the provincial law would go contrary to Parliament’s
purpose in enacting the representation provision of the Immigratory Act.
Rothmans, Benson & Hedges v. Saskatchewan (2005)
Provincial rules governing the promotion of tobacco more restrictive than federal rules.
SCC rules that there is no conflict, possible to comply with both federal and provincial
rules.
Effect of inconsistency: Inoperative
The most accurate way of describing the effect of the doctrine of paramountcy on the
provincial law is to say that it is rendered inoperative to the extent of the inconsistency.
Thus, it will affect the operation of the provincial law only so long as the inconsistent
federal law is in force. If the federal law is repealed, the provincial law will automatically
revive (come back in operation) without any reenactment by the provincial Legislature.
Peace, order, and good government
The opening words of s. 91 of the Constitution Act, 1867 confer to the federal Parliament
the power to “make laws for the peace, order, and good government of Canada, in relation
to all matter not coming within the classes of subjects by this Act assigned exclusively to
the Legislatures of the provinces…”.
This is a residuary power in its relationship to the provincial heads of power. By this
means the distribution of power was to be exhaustive.
POGG power it is part of the validity step, to understand which head of power have
power. The POGG power is meant to fill gaps in the scheme of distribution of powers
The POGG power has been trunk from which three branches of legislative power have
grown:
i.
The gap branch;
ii.
The national concern branch;
iii.
The emergency branch.
The gap branch
One of the offices of the POGG power is to fill lacunae or gaps in the scheme of
distribution of powers. For example, the courts have held that the power to incorporate
companies with objects other than provincial must fall within the federal pogg power
because of its residuary nature.
A similar argument can be made with respect to the treaty power.
It is possible to classify a law by labelling its matter (or pith and substance) with a
name which does not appear to come within any of the enumerated heads of power:
Aeronautics; Atomic energy; National capital region.
The pogg language completes the incomplete assignment of power.
The National Concern branch
Encompasses the idea that some matters of legislation, which originate as local or
provincial, can acquire “national concern” and thereby come within the federal
Parliament’s POGG power
The National concern branch has been recognized in many cases by the SCC:
i.
Aeronautics: Johannesson v West St Paul (1952);
ii.
National capital region: Munro v National Capital Commission (1966);
iii.
Marine pollution: R v Crown Zellerbach (1988)
iv.
Atomic energy: Ontario Hydro v Ontario (1993)
v.
Temperance: A-G Ont. V. Canada Temperance Federation (1946) about
prohibition of alcohol
National concern test
References re Greenhouse Gas Pollution Pricing Act (SCC 2021)
The latest and most important version of the test for applying the national concern branch
was articulated in the References re Greenhouse Gas Pollution Pricing Act (SCC 2021).
All steps of the test must be satisfied for the matter to fall under the national concern
branch of the POGG power. The onus of proving all steps is on the federal government.
i.
Threshold Question: determine whether “the matter is of sufficient concern to
the country as a whole to warrant consideration as a possible matter of national
concern”. Requires supporting evidence.
ii.
Singleness, Distinctiveness, Indivisibility (distinguishing it from matters of
provincial concern): subdivide in two principles:
a. Qualitative difference: a specific and identifiable matter that is
qualitatively different from matters of provincial concern”. This principle
mitigates the concern about the overexpansion of federal power absorbing
provincial powers. Factors (not strict requirements) for determining
qualitative difference
-
[W]hether the matter is predominantly extraprovincial and
international in its nature or its effects”.
-
Whether international agreements relate to the proposed matter,
which “may help to show that a matter has extraprovincial and
international character”. Whether the proposed “matter involves
a federal legislative role that is distinct from and not duplicative
of that of the provinces
b. Provincial inability: the evidence establishes provincial inability to deal
with the matter. Factors (strictly required) for showing provincial inability
-
Provinces are constitutionally incapable of addressing the matter,
alone or together.
-
Failure of one or more provinces to cooperate “would jeopardize
the successful operation of the scheme in other parts of the
country”.
-
“A province’s failure to deal with the matter must have grave
extraprovincial consequences”. Evidence of actual harm or
serious risk of harm needed. Harms to life, health and
environment count but regulatory inefficiency or financial cost
do not.
iii.
Proportionality: Determine “whether the scale of the impact of the proposed
matter of national concern is reconcilable with the division of powers”.
-
“[T]he intrusion upon provincial autonomy that would result
from empowering Parliament to act is balanced against the extent
of the impact on the interests that would be affected if Parliament
were unable to constitutionally address the matter at a national
level”.
-
The impact on the interests that would be affected if Parliament
were unable to act must be greater than the intrusion into
provincial autonomy.
The emergency Branch
During COVID there was not necessary to use the POGG power because the provinces
and federal used their regular powers to deal with the situation.
Three requirements for use of emergency branch:
1. Federal Parliament must have a “rational basis” to claim that there is an
emergency

extreme deference given to government

onus on opponent to establish lack of rational basis
2. Legislation must address the emergency
3. Legislation must be temporary
WAR

Fort Frances case (1923) – wartime price controls by the federal gov during WWI
were constitutional

Wartime Leasehold Regulations Reference (1950) – wartime rent control by the
federal gov during and after WWII was constitutional – rent is within the
jurisdiction of provinces (property and civil rights s. 92(13))

Japanese Canadians Reference (1947) – deportation of Japanese Canadians was
constitutional – before the Charter
APPREHENDED INSURRECTION

October Crisis, 1970 (497 people arrested & detained): Constitutionality of use of
War Measures Act not reviewed in this case
INFLATION
Anti-Inflation Reference (SCC 1976) – the Anti-Inflation Act (wage and price controls)
was upheld as an emergency measure, in response to high inflation
TRADE AND COMMERCE – S.91(2)
The interpretation problem for Canada lay in the accommodation of the federal power
over “the regulation of trade and commerce” (s. 91(2)) with the provincial power over
“property and civil rights in the province” (s. 92(13)). Trade and commerce is carried on
by means of contracts which hive rise to “civil rights” over “property”.
Issue: how does this relate to the provincial power under s. 92(13) over “property and
civil rights in the province”?

These powers appear to overlap (i.e., trade and commerce is carried on by
contracts which give rise to civil rights over property)

However, the courts have narrowed both powers so there is no overlap (a process
of “mutual modification”)
A) Provincial power is confined to intraprovincial trade and commerce under “property
and civil rights in the province” (s. 92(13)) (i.e., local; within the province)
B) Federal trade and commerce power is confined to:
1. Interprovincial or international trade and commerce, and
2. “general” trade and commerce
1) Interprovincial (international) trade and commerce
Citizens Insurance Co. v. Parsons (1881), Hogg §20:1.
Provincial statute stipulating conditions to be included in all fire insurance policies in the
province
Federal trade and commerce power cannot regulate contracts of a particular
business or trade
Note that this is not true for federally regulated industries
The Margarine Reference (1951) – federal prohibition on the manufacture, sale or
possession of margarine (for the purpose of protecting the dairy industry) was invalid
because it proscribed transactions that could be completed within a province; note that a
provision that prohibited the importation of margarine was upheld as a valid exercise of
the trade and commerce power
But what about the following cases? see Hogg §20:3
Dominion Stores v. The Queen (1979) (grade names for apples): Intraprovincial
requirement not justified under trade and commerce, Hogg disagrees (grade names would
lose credibility if they don’t apply to purely local use). The Federal statute was considered
ultra vires (invalid).
Labatt Breweries v. AG Canada (1979) (alcohol composition of beer): Trade and
commerce power will not authorize regulation of a single/specific industry. What
constitutes light beer? Federal statute was considered invalid.
2) General trade and commerce
General regulation of trade affecting the whole country. The “general” trade and
commerce power authorizes the regulation of intraprovincial trade.
General Motors v City National Leasing (1989): the supreme court in a unanimous
judgment held that the Combines Investigation Act (now the Competition Act) was a
valid exercise of the “general” trade and commerce power. The statute set different
interest rates on the purchase of cars, GM giving better rate to CNL’s competitors
Applied the Vapor test, which consisted of three elements:
i.
The presence of a general regulatory scheme;
ii.
The oversight of a regulatory agency;
iii.
A concern with trade as a whole rather than with particular industry;
And added more two steps:
iv.
The legislation should be of a nature that the provinces jointly or severally would
be constitutionally incapable of enacting;
v.
The failure to include one or more provinces or localities in a legislative scheme
would jeopardize the successful operation of the scheme in other parts of the
country.
Kirkbi v. Ritvik Holdings (2005) – LEGO vs Mega Bloks re federal Trade-marks Act;
trademarks legislation was upheld because it met the five criteria in General Motors v.
City National Leasing – See Hogg §20:4.
Note: Mega Bloks won on grounds that interlocking system was a functional
characteristic
Reference re Securities Act (2011)
Securities regulation became the object of judicial review under the general branch of the
trade and commerce power Re Securities Act (2011). Proposed federal Securities Act for
comprehensive federal regulation of the Canadian securities industry (by way of an optin provision) was not authorized by the “general” branch of the trade and commerce
power
The SCC held that the proposed Act was not authorized by the general of the trade and
commerce power, which was the only ground advanced in its support.
Of the five indicators set on General Motors, only the first two were present: general
regulatory scheme and oversight of a regulatory agency. But indicator iii (trade as a
whole) was not satisfied. The Court acknowledged that capital markets also exist within
provinces that have been deeply engaged in the regulation of the market for so many
years. So, (3) (trade as a whole) and (5) (whether legislative scheme is such that the failure
to include one or more provinces would jeopardize successful operation in the rest of the
country) were not met.
The SCC concluded that the main thrust of the proposed Act remains essentially a mater
of property and civil rights within the provinces and therefore subject to provincial
power.
Reference Pan-Canadian Securities Regulation (2018)
This was a more cautious proposal to regulate the securities industry on a national basis
and was held constitutional by the SCC.
This proposal was for a cooperative securities regulator, which would have two
components: i) a uniform model provincial act to be enacted by all participating provinces
and territories; ii) a federal act aimed at preventing and managing systemic risk,
establishing criminal offences relating to financial markets and creating a national
securities regulator.
Focus on systemic risk met third indicator of federal authority (regulating trade as a
whole, not a particular industry)
Despite the contrary holding in the 2011 case, now the Court answered yes to all parts of
this question because unlike the 2011 proposal, the 2018 proposed Act does not descend
into the detailed regulation of all aspects of trading in securities and is instead limited
addressing issues and risks of a systemic nature that may represent a material threat to the
stability of Canada’s financial system.
The Courts’s conclusion was that the general branch of the trade and commerce power
authorized the federal role in the proposed cooperative regime.
CCLW 6841 – Trade & Commerce Exercise
Parliament enacts the National Data Privacy Standards Act (NDPSA) as an expansion of
the Personal Information Protection and Electronic Documents Act (PIPEDA), aiming to
address gaps in Canada’s data privacy framework. The NDPSA introduces stricter
encryption and breach reporting requirements, a federal licensing regime for businesses
handling personal data across provincial borders, and penalties of up to $1 million for
non-compliance.
The law is enforced by the Office of the Privacy Commissioner of Canada, which gains
new powers to audit businesses and resolve interprovincial disputes. The federal
government argues the law is necessary to protect consumers and ensure consistent
privacy standards nationwide, especially after a Quebec-based company's data breach
exposed personal information of residents in five provinces. Provincial efforts to create a
harmonized framework failed in 2022.
MaplePay, a Toronto-based financial technology company that processes consumer
transactions nationwide, challenges the law, arguing it intrudes on provincial jurisdiction
over property and civil rights.
Is the NDPSA a valid exercise of Parliament’s general trade and commerce power? Yes!
1. Presence of a general regulatory scheme – OK
2. Scheme monitored by oversight of a regulatory agency - OK
3. Legislation is concerned with trade as a whole, rather than with a particular
industry – yes - federal act aimed at preventing and managing systemic risk
4. The provinces, jointly or severally, are constitutionally incapable of enacting the
legislation; and - TRUE
5. Failure to include one or more provinces would jeopardize the successful
operation of the scheme in other parts of the country - IT WOULD
Property and civil rights
Importance
Section 92(13) of the Constitution Act, 1867 confers upon the provincial Legislatures the
power to make laws in relation to “property and civil rights in the province”. This is by
far the most important of the provincial heads of power.
Most of the major constitutional cases have turned on the competition between one or
more of the federal heads of power, on the one hand, and property and civil rights, on the
other.
The term “civil rights” in this context does not bear the meaning of “civil liberties”. Civil
rights in the sense required by the Constitution Act, 1867 are juristically distinct from
civil liberties.
This term compromise primarily proprietary, contractual or tortious rights.
Local and private matters
The provincial “residuary power” in s. 92(16) over “all matters of a merely local or private
nature in the province” has turned out to be relatively unimportant, because the wide
scope of property and civil rights in the province has left little in the way of a residue of
local or private matters.
Insurance
Unlike banking (s. 91(15)), insurance is not specifically mentioned in the Constitution
Act, 1867; but, like banking, insurance was one of the first industries to attract
fundamental regulation.
Citizens’ Insurance Co. v Parson (1881)
The Privy Council upheld an Ontario statute which required that certain conditions be
included in every policy of fire insurance entered into in Ontario, concluding that the
regulation of the terms of the contract came within property and civil rights in the
province.
Insurance Reference (1916)
The Privy Council held that the federal Insurance Act was unconstitutional, rejecting
the argument based on trade and commerce.
Federal government and insurance
*Despite these setbacks, the federal government continues to regulate a substantial part
of the insurance industry under statute covering British and foreign companies, federallyincorporated companies, and, on a voluntary basis, provincially-incorporated companies.
Business in general
Regulation of business is ordinarily a matter within the provincial power property and
civil rights in the province, but there are a number of exceptions:
i.
Navigation and shipping (s. 91(10));
ii.
Banking (s. 91(15));
iii.
Interprovincial or international transportation and communication (s. 92(10)).
iv.
Aeronautics (pogg power);
v.
Nuclear energy (pogg power).
Other federal powers confer a limited power to regulate business, for example, trade and
commerce (s.91 (2)), taxation (s. 91(3)), interest (s. 91(19)), the criminal law (s. 91(27)).
Professions and trades
Regulations of professions and trades comes within property and civil rights in the
province.
Krieger v Law Society of Alberta (2002)
The SCC held that the Law Society of Albert had the power to discipline a provincial
Crown prosecutor because prosecutors were all members of the Law Society, like all other
lawyers.
Labour Relations
Provincial power
The regulation of labour relations over most of the economy is within provincial
competence under property and civil rights in the province.
Toronto Electric Commissioners v Snider (1925)
The Privy Council held that the deferral Industrial Disputes Investigation Act of 1907
was unconstitutional
Federal power
Despite the consistent affirmations of provincial power over labour relations, there is still
a substantial federal presence in the field.
Stevedores Reference (1955)
The SCC held that the federal law was validly applicable to stevedores because their work
of loading and unloading ships was an essential part of navigation and shipping.
Commision du Salaire Minimum v Bell Telephone Co. (1966)
The issue was whether the Quebec’s minimum wage law applied to the Bell Telephone
Company, which was within federal jurisdiction as an interprovincial communications
undertaking.
The SCC held that the provincial law was inapplicable to Bell because the rates of pay
and hours of work were vital parts of the interprovincial undertakings.
Bell Canada v Quebec (1988)
Once again, the SCC held that a provincial law, this time regulating occupational health
and safety, was inapplicable to the telephone company because interfered in the labour
relations, which were a vital part of the management and operation of the federal
undertaking.
Marketing (mercados)
In the context of marketing, the distinction between intra and interprovincial trade is not
easy to apply. A provincial marketing scheme will nearly always have an impact on
producers or consumers in other provinces.
Manitoba egg Reference (1971)
The SCC struck down a provincial scheme to regulate the marketing of eggs because the
plan not only affects interprovincial trade of eggs, but aims at the regulation of such trade,
which made the scheme unconstitutional.
Securities
In line with the insurances cases and the marketing cases, the provinces have the power
to regulate the trade in corporate securities because this is a matter within property and
civil rights in the province.
There is one important exception: the province has no power to confer upon a provincial
agency discretionary power over the issue of securities by a federally-incorporated
company, because the capacity to raise capital is an essential part of corporate status.
Insider trading: SCC held that the federal Parliament has jurisdiction in the field under
criminal law power over insider trading (offence of issuing a false statement in a
prospectus) and under the power over federally-incorporated companies (remedy for
insider trading in their shares). In both cases, the SCC held that both the federal and
provincial laws were valid on the basis that securities regulation has a double aspect
(or matter).
Re Securities Act (2011)
The SCC held that the proposed federal Canadian Securities Act was unconstitutional,
saying that the provinces have been deeply engaged in the regulation of the securities
market over many years and that the day-to-day regulations of securities ws under the
provincial head of power of property and civil rights.
The conclusion was that comprehensive securities regulation did not come within the
general branch of the trade and commerce power.
Re Pan-Canadian Securities Regulation (2018)
This time the SCC held that the new proposal was constitutional because there were two
components: (1) a uniform model provincial act and (2) a federal act aimed at preventing
and managing systemic risk.
Thus, this new regulation was a cooperative system.
Property
The creation of property rights, their transfer and their general characteristics are within
property and civil rights in the province. Thus, the law of real and personal property and
its various derivatives, such as landlord and tenant, trusts and will, sucession and
intestacy, conveyancing, and land use planning, are provincial jurisdiction.
Difficulty has arisen in cases where a province has sought to control ownership or use of
property in order to accomplish a non-proprietary objective which it could not
accomplish by more direct means. Switzman v Ebling (1957): a provincial law prohibited
the use of a house to propagate communism or bolshevism.
Can a province control foreign ownership of land?

Limiting ownership by non-citizens? Precedents are divided

Limiting ownership by residency in province? Yes, Morgan v. A.-G. P.E.I. (1975)
Criminal Law
Constitution Act, 1867, s 91(27) confers the federal Parliament the power to make laws
in relation to: “the criminal law, except the constitution of courts of criminal
jurisdiction, but including the procedure in criminal matter”
Criminal Code (1985)
The provincial role in criminal justice derives from s. 92 (14) of the Constitution Act,
1867: “the administration of justice in the province, including the constitution, maintence
and organization of provincial courts, both of civil and of criminal jurisdiction,
including procedure in civil matter in those courts.”
*In this sense, the establishment of courts of criminal jurisdiction is expressly included
in provincial powers, but he rules of procedure and evidence in criminal trial are federal.
Jurisdiction over correctional institutions is divided between the two levels od
government: i) federal Parliament has jurisdiction over “penitentiaries” (s. 91(28), which
hold offenders sentenced to imprisonment for 2 years or more; ii) provinces have
jurisdiction over “prisons” (s. 92(6), which hold offenders sentenced to imprisonment for
less than two years.
Another provincial head of power is 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 of the section 92 (s. 92(15).
Definition of criminal law
Margarine Reference (1951)
The law in issue simply prohibited the manufacture, importation or sale of margarine. It
was common ground that the purpose of this law was to protect the dairy industry.
The Privy council held that, although the law perfectly fitted the criminal form of a
prohibitions coupled with a penalty, the economic object of protecting an industry from
its competitors made the law in pith and substance in relation to property and civil rights
in the province.
So the Margarine Reference added a third ingredient for a law to fit the definition of
“criminal law”
1. The law must establish a prohibition;
2. The law must carry a penalty; and
3. The law must be for a valid (typical) criminal public purpose.

Some public purposes that would qualify: “public peace, order, security, health,
morality…” (note that the definition by the court was not exhaustive)

This does not mean that the criminal law cannot serve economic ends

See Hogg §18:2 (pg. 608–609 of 2023 edition) for examples of other economic
ends, e.g., protection of private property, economic regulation (price
discrimination, competition), securities regulation (false prospectus provisions)
The protection of the environment is a public purpose that will sustain laws enacted
under the criminal law power. So is the protection of animals from cruelty.
Mamo-Levine (2003)
The SCC rejected the argument that a “harm principle” was a requirement to a valid
criminal law. At issue was the validity of the criminalization of the possession of
marijuana. The consequence is that a purpose that will qualify to sustain a law as a
criminal law does not necessarily involve the prevention of harm to other human beings.
Harm to the accused and moral concerns were adequate bases for the enactment of the
law (which did not depend on harm to others)
Re Assisted Human Reproduction Act (2010)
SCC was unanimous that absolute prohibitions of immoral or risky practices
associated with assisted human reproduction (such as the sale and purchase of human
embryos) was a valid exercise of Parliament’s criminal law power.
But the SCC divided on whether qualified prohibitions (such as those activities carried
out under licence) were within the criminal law power. Majority held that they were not
Food and Drugs
Labatt Breweries v A.G. Can. (1979)
The SCC held that part of the federal Food and Drugs act that authorized regulations
prescribing compositional standards for food was unconstitutional. The act prescribed
that “light beer” must contain no more than 2.5 per cent of alcohol. The SCC understand
that requirement for light beer was not related to health.
It followed that the compositional standards authorized by the Food and Drugs Act could
not be supported under the criminal law power. Since they could not be supported under
the POGG power, or the trade and commerce power, either, it followed that they were
invalid (ultra vires).
The SCC found that, while the federal government could enact laws for the protection of
health, the alcoholic requirement for light beer was not related to health.
Margarine Reference (1951)
A federal law that prohibited the manufacture, importation or sale of margarine (the
purpose of which was to protect the dairy industry) was struck down on the basis the
economic object of protecting an industry made the law in pith and substance in
relation to property and civil rights in the province.
The statute was struck down even though the preamble asserted that margarine was
“injurious to health” (which, if true, would have satisfied the requirement of a typically
criminal public purpose – the federal government admitted that it was not true)
Illicit drugs
The non-medical use of drugs such as marihuana, cocaine and heroin is prescribed by the
federal Controlled and Drugs and Substance Act, that has been upheld as a criminal law.
This act in s. 56 empowers the Minister of Health to grant exemptions. The Minister
granted an exemption to Insite, a safe-injection clinic located in Vancouver.
Exemption under s. 56 was needed because without it the staff and patients of the clinic
would be committing the offence of possession under the Act.
Canada v PHS Community Services Society (2011)
The SCC ordered the Minister to grant the exemption on the ground that the closing of
the clinic would endanger life, liberty and security of the person in breach of s. 7 of the
Charter.
Schneider v The Queen (1982)
The SCC upheld British Columbia’s Heroin Treatment Act, which provided compulsory
apprehension, assessment and treatment of drug addicts, including compulsory
detention. The court classified the legislation as within the provincial competence
because the medical treatment of drug addiction came within the provincial authority over
public health as “local or private” matter within s. 92(16).
Tobacco
RJR-MacDonald v Canada (1995)
The SCC held the validity of the federal Tobacco Products control Act which prohibited
the advertising of cigarettes and other tobacco products and required the placement of
health warning on packages. Although it was impracticable to ban the product itself in
view of the large number of Canadians who were smokers, it was clear from the
legislative history that the ban on advertising still pursued the same underlying public
purpose, namely, the protection of public from a dangerous product.
The Act was, however, struck down under the Charter of Rights, because of the impact
of advertising ban on freedom of expression.
Restrictions on tobacco advertising are a valid exercise of Parliament’s criminal law
power.
Environmental protection
R. v Hydri-Quebec (1997)
The SCC agreed that the protection of the environment was a public purpose that would
support a federal law under the criminal-law power and upheld the Canadian
Environmental Protection Act.
Competition Law
It is difficult to regulate anti-competitive practices at a provincial level, so, it is generally
agreed that such regulation has to be federal if it is to be effective.
P.A.T.A case (1931)
The SCC upheld that the Combines Investigation Act, 1923 (now the Competition Act)
was valid under criminal law. This decision established that the criminal law power was
capable of expansion into the world of commerce.
More recently, the SCC held that the Competition Act that the trade and commerce power
does provide the constitutional basis for the Act.
Sunday observance of law
Federal power
R v Big M Drug Mart (1985)
The SCC understand that the Lord’s Day Act was a valid exercise of the criminal law
power because it pursued the religious purpose of preserving the sanctity of the Christian
Sabbath (safeguard morality). However, the same religious purpose that beathed life into
the Act under the criminal law power was the kiss of death under the Charter Right. The
Act held that the Act was unconstitutional =.
Provincial power
R v Edwards Books and Art (1986)
Provincial power to enact Sunday closing law happened in this case.
The SCC hold that a law providing a “pause day” for secular purposes is properly
characterized as relating to property and civil rights in the province. The secular purpose
was that the Ontario Law provided a uniform pause ay for retail workers. The Court made
reference to statements in the legislative history of the Act.
Requirement to close on Sunday, though secular, was still ruled to have an effect that
limited religious freedom, but the requirement could be justified under s. 1 (reasonable
limits clause) of the Charter.
Assisted suicide
Carter v. Canada (2015)
Issue is whether, given that all agree that the prohibition of assisted suicide is, in general,
a valid exercise of criminal law power, should the interjurisdictional immunity doctrine
apply to physician-assisted dying, because it lies at the core of provincial jurisdiction over
health care?
Held: Criminal Code prohibition on assisted suicide is, in general, a valid exercise of the
federal criminal law power. “In our view, the appellants have not established that the
prohibition on physician-assisted dying impairs the core of the provincial jurisdiction.
Health is an area of concurrent jurisdiction; both Parliament and the provinces may
validly legislate on the topic”.
The interjurisdictional immunity claim fails. The SCC found that health is an area of
concurrent jurisdiction (so both the federal Parliament and the provinces may validly
legislate on the topic).
Note: Law struck down under s. 7 Charter. The prohibitions in the Criminal Code on
assisted suicide were struck down and Parliament was given 12 months to enact new
legislation legalizing physician-assisted dying
Criminal Law and civil remedy
Federal power generally to create civil remedies
The federal Parliament has no independent power to create civil remedies akin to its
power over criminal law. This means that if the pith and substance of a federal law is
the creation of a new civil cause of action, the law will be invalid, as coming within the
provincial head of power “property and civil rights in the province” s. 92(13).
Papp v Papp (1969)
The issue whether the Divorce Act could validly provide for the custody of the children
of a dissolved marriage. Here was set the rule that the federal Parliament can create a civil
remedy if there is a rational, functional connection between the remedy and the
admittedly valid provisions of the Act concerning divorce.
*Since this case, the SCC has used the functional connection test to uphold a civil
remedy in federal corporation law, against persons who engage in insider trading, a civil
remedy in federal competition law.
So, the question of validity of the civil remedy should depend upon the answer to that
was posed in Papp v Papp , namely, whether there is a rational, functional connection
between what is admittedly good (the prohibition coupled with a penalty) and what is
challenged (the civil remedy)
R v Zelensky (1978)
The SCC upheld a provision of the Criminal Code that authorized a criminal court, upon
convicting an accused of an indictable offence, to order the accused to pay to the victim
compensation for any loss or damage caused by the commission of the offence.
This power had three civil characteristics:
i.
initiative of the victim, not the prosecutor;
ii.
compensation related not to blameworthiness but to extent of damage;
iii.
order enforced not by fine but by the victim as if it were a civil judgment
Divided court but majority allowed compensation, emphasizing the criminal
characteristics of the provision, including that it was part of the sentencing process and
the order to compensate the victim was discretionary.
Criminal law and regulatory authority
The question to be considered here is whether the criminal law power will sustain the
establishment of a regulatory scheme in which an administrative agency or official
exercises discretionary authority.
Nova Scotia Board of Censors v Mcneil (1978): SCC held that the censorship of films
was not criminal, but is the regulation of an industry within the province (property and
civil rights).
R. v Hydro-Quebec (1997)
Hydro-Quebec was prosecuted for violating an interim order that restricted the emission
of a substance (chlorobiphenyls or pcb) to one gram per day.
The SCC upheld the Act as a criminal law because the administrative procedure for
assessing the toxicity of substances culminate in a prohibition enforced by a penal
sanction, the scheme was sufficiently prohibitory.
Provincial power to enact penal laws
Provincial legislatures have the power under s. 92(15) of the Constitution Act, 1867 to
impose “punishment by fine, penalty or imprisonment” for the purpose of enforcing
otherwise valid provincial laws. This is an ancillary power and the dominant tendency of
the case law has been to uphold provincial penal legislation (Nova Scotia of censors v
McNeil (1998).
Chatterjee v. Ontario (2009)
Police pulled over a car with no front license plate; police computer showed the driver
was in breach of a court order so driver was arrested; search of the car revealed $29,000
cash which “smelled of marijuana” – money was seized and forfeited to provincial Crown
on the grounds that the money was “proceeds of unlawful activity” (even though no
charges laid and no drugs found in the car).
Provincial statute was the Civil Remedies Act, 2001 (in this case, it was the smell of
the marijuana coupled with the driver’s explanation for the money that caused the court
to order the forfeiture) – the driver argued that the Civil Remedies Act was
unconstitutional (i.e., the provincial act was an unconstitutional intrusion into the federal
realm of criminal law).
SCC held that the pith and substance of the law was in relation to property (and
noted that both provinces and federal Parliament were competent to make laws for the
purposes of preventing and compensating crime).
SCC unanimously upheld Ontario’s civil forfeiture statute as a valid exercise of
provincial jurisdiction under s. 92(13) and (16). The Crown kept the $29,000
CCLW 6841 – Criminal Law Exercise (Answers)
The government of Ontario has passed a new statute called the Fish Friday Act. The Act
requires all publicly funded elementary schools and high schools that have cafeteria
services to refrain from serving any meat other than fish on Fridays during Lent (the
season leading up to Easter, during which Catholics often take up this same practice). The
province claims that the purpose of this Act is to improve the health of students by
encouraging them to eat healthier meats and to reduce the consumption of red meat.
If a school principal does not implement the requirements of the Act, an internal
professional complaint process can be initiated against the principal by the school board.
Such matters will usually be resolved informally through discussions with the principal.
However, a principal’s failure to implement government policies could (rarely) lead to a
formal professional discipline process.
On federalism grounds, is this statute constitutional? Explain your answer.
Would your answer be different if the Act established this policy during the entire school
year? Explain your answer.
Answers
The question asks if a statute passed by the provincial government is valid on federalism
grounds. We must begin with the question of whether the provincial government can
make this type of law at all. I.e., is the provincial statute valid?
Validity
1. Identify the “matter” of the challenged law. In other words, the law in question needs
to be characterized.
 What is the “pith and substance” of the law?
We must look at the purpose and effect of the law. The stated purpose of the law is to
improve the health of students by providing students with healthier meals. However, the
law only applies during the season of Lent, which makes it seem as if the law actually has
the purpose of promoting the religious practices of one religion: Catholicism (or other
Christian denominations that might have a similar practice). Even if the law does not have
such a purpose, it may still have the effect of promoting one religion’s practices.
If the Act established the policy during the entire school year, then it would become much
more plausible to characterize the law as being for the purpose of promoting healthy
eating in schools. This policy would then look more like Meatless Monday programs,
which schools do currently have, and which are not characterized as promoting a religious
practice in the school.
2. Based on the law’s “matter”, determine which level of government (federal or
provincial) has legislative power over it.
Provincial governments have the authority to make laws about education under s. 93 of
the Constitution Act, 1867. If the law is characterized as actually being for the purpose of
promoting health within elementary and high schools, then the provincial governments
have authority over this matter under s. 93.
However, if the law is characterized as being for the purpose of promoting religious
norms, then this appears to be beyond the scope of the power that the provinces have over
education under s. 93. If the law merely has the purpose of promoting healthy eating in
schools but has the effect of promoting religious norms, then the law likely falls under
the power that provinces have under s. 93 and will likely be valid under federalism rules
but could also be challenged for violating s. 2(a) of the Charter of Rights and Freedoms
(a topic that we are not exploring in this exercise).
The penalties specified in the statute, which could go as far as a professional disciplinary
process, are fine on federalism grounds. The provinces have the power to regulate the
professions under s. 92(13), property and civil rights.
Applicability (Interjurisdictional Immunity)
Does the Fish Friday Act impair a vital part of a federal power? The answer here would
be no, especially if the law has already been characterized as having the purpose of
promoting healthy eating in schools and either did not have the effect of promoting
religious practices or merely had the effect of promoting religious practices (but not the
purpose of doing promoting religious practices).
There is a very thin argument to make here that this provincial statute would impair a
vital part of the federal government’s criminal law power. There is not much to this
argument, so I will not pursue it in this answer to this exercise. This provincial statute
would not impair any ability of the federal government to make criminal law.
Conclusion
If the provincial statute is characterized as being for the purpose of enforcing religious
norms, which I argue is the most natural characterization of the Act in the fact pattern
above, the provincial statute would be found to be constitutionally invalid on federalism
grounds. The result here would be similar to the result in:
 A.-G. Ont. v. Hamilton Street Railway (1903) – Privy Council stuck down
Ontario’s Lord’s Day Act as a criminal law.

The Henry Birks case (1955) – struck down municipal by-law requiring shops
to close during Catholic holidays.1
Topic 10 – Aboriginal and Treaty Rights
1) Introduction
Indigenous people
Includes First Nations, Métis, Inuit
Haida Nation v. British Columbia (2004)
Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were
never conquered. Many bands reconciled their claims with the sovereignty of the Crown
through negotiated treaties. Others, notably in British Columbia, have yet to do so. The
potential rights embedded in these claims are protected by s. 35 of the Constitution Act,
1982. The honour of the Crown requires that these rights be determined, recognized and
respected. This, in turn, requires the Crown, acting honourably, to participate in
processes of negotiation...” (para 25)
Erosion of Indigenous law and governance systems

More and more British settlers coming to North America

Massive population losses within Indigenous communities

Rise of racism and a push toward assimilation

Erosion of treaty promises

Residential schools
Terminology
Indigenous – the broadest term used to refer generally to the earliest inhabitants of a
country.
Indigenous law – refer to the law of Indigenous peoples themselves.
Aboriginal – was used as a broad term for Indigenous people in Canada. Today, the term
“Indigenous” is preferred for that purpose.
Aboriginal law – Area of Canadian public law involving the rights, land claims, and
other legal issues concerning Indigenous peoples in Canada. This is Canadian law that is
about, or relates to, Indigenous people.
Indian – As it relates to the Indigenous peoples of Canada, this term is only used when
referring to laws that contain the word (most importantly, the Indian Act) or to other legal
concepts and powers (such as s. 91(24) of the Constitution Act, 1867, which gives the
federal government legislative power over “Indians, and Lands Reserved for the Indians”)
or when referring to systems such as the Indian Residential Schools.
First Nations – original inhabitants of Canada who are not Inuit or Métis.
Inuit – Indigenous peoples living in the northern regions of Canada (the Arctic).
Métis – People of mixed Indigenous-European heritage. Note especially people who trace
their ancestry to the historic Métis Nation.
Constitutional provisions
Federalism – s. 91(24)
S. 91(24) of the Constitution Act, 1867 confers upon the federal Parliament the power to
make laws in relation to “Indians, and lands reserved for the Indians” (this answers the
federalism question)
Idea behind allocation of power seems to be that more distant government would be more
likely to respect Indian reserves. Also desire to have uniform national policy on this topic
Aboriginal & Treaty Rights – section 35
S. 35(1) of the Constitution Act, 1982 gives constitutional protection to the “existing
aboriginal and treaty rights of the aboriginal peoples of Canada”.
S. 35(2) of the Constitution Act, 1982 provides that: “In this Act, ‘aboriginal peoples of
Canada’ includes the Indian, Inuit and Métis peoples of Canada”.
2) Federal Legislative power – Section 91(24)
Section 91(24) of the Constitution Act, 1867 confers upon the Federal Parliament the
power to make laws in relation to “Indians, and lands reserved for the Indians”.
Reasons for this section:
i.
concern for the protection of the aboriginal peoples against local settlers;
ii.
desire to maintain uniform national policies respecting the Indians.
It will be noticed that s. 91(24) contains two heads of powers:
i.
power over “Indians”;
ii.
power over “lands reserved for the Indians”.
A) Indians
Who is an Indian?

aboriginal peoples who had been living there long before European contact;

The federal Indian Act defines the term “Indian” for the purpose of that Act.
Persons within the statutory definition of the Indian Act are known as “status
Indians” and enjoy the right to live on Indian reserves and various other Indian
Act privileges.
But there are also many persons of Indian blood and culture who are outside the
statutory definition.
So, the federal Indian Act defines the term and establishes a register; known as “status
Indians”; also includes non-status Indians including Métis and Inuit (Daniels v. Canada
(2016) and s. 35(2) of the Constitution Act, 1982).
What kind of laws may be made in relation to Indians?
The federal Parliament has taken the broad view that it may legislate for Indians on
matters which otherwise lie outside its legislative competence, an on which it could not
legislate for non-Indians. For example:

succession to the property of deceased Indians;

provisions for the administration of the property of mentally incompetent Indians;

provisions for the education of Indian children.
*Whether these provisions are valid or not is a question of characterization: are they in
pith and substance in relation to Indians or in relation to succession or property or
education?
B) Lands reserved for the Indians
The second branch of s. 91(24) confers on the federal Parliament legislative power over
“lands reserved for the Indians”.
In Delagamuukv v British Columbia (1997) the SCC held that the phrase extends to all
“lands held pursuant to aboriginal title”. For that reason, only the federal Parliament has
the power to extinguish aboriginal title. But if the Indians surrender their rights over
particular lands, which they can only do to the Crown, then full title to the lands is
assumed by the province, not the Dominion.
Power relating to reserves, applies to Indians and non-Indians – includes reserves and
the huge area of land recognized by the Royal Proclamation of 1763 and indeed all lands
held pursuant to aboriginal title; this means that only the federal Parliament has the
power to extinguish aboriginal title.
2) Provincial legislative power
I) Application of provincial laws
The general rule is that provincial laws apply to Indians and land reserved for the
Indians. Provincial Legislatures have the power to make their laws applicable to Indians
and on Indian reserves, so long as the law is in relation to a matter coming within a
provincial head of power.
Sometimes the provincial law will be valid because it is exercised over property and civil
rights in the province (s. 92(13)) – see Kitkatla Band v. British Columbia (2002) (case
about culturally modified trees)
Exceptions
There are 5 exceptions to the general rule that provincial laws apply to Indians and lands
reserved for the Indians:
1) Singling out
a provincial law that singled out Indians or Indians reserves for special treatment would
run the risk of being classified as a law in relation to Indian and Indian reserves; and, if
so classified, the law would be invalid.
2) Indianness
A provincial law that affects an integral part of primary federal jurisdiction over
Indians and lands reserved for the Indians will be inapplicable. This is to preclude laws
that impair the status or capacity of Indians or that affect Indianness. And it is an
analogy in the immunity from provincial laws that impair a vital part of undertakings
within federal jurisdiction. It is a branch of interjurisdictional immunity.
In the case Tsilhqot’in Nation v British Columbia the SCC concluded that the Sparrow
framework is fairer and more practical from a policy perspective than the blanket
inapplicability imposed by the doctrine of interjurisdictional immunity.
The result is that provincial laws apply to aboriginal and treaty rights, although any
infringement of those rights would have to serve a compelling and substantial objective
and otherwise satisfy the Sparrow framework of justification.
The Indianness exception was relied again in Kitkatla Band v British Columbia (2002).
So, in Tsilhqot’in Nation v. British Columbia (2014), the SCC clarified that provincial
laws do apply to aboriginal and treaty rights, although any infringement of those rights
would have to serve a compelling and substantial objective and otherwise satisfy the
framework in R. v. Sparrow (1990) (Sparrow framework? s. 35 authorizes limits on treaty
rights using a similar framework as the Oakes test).
3) Paramountcy
The third exception to the general rue that provincial laws apply to Indians and lands
reserved for the Indians is the doctrine of federal paramountcy. If a provincial law is
inconsistent with a provision of the Indian Act (or any other federal law), the provincial
law is rendered inoperative by the doctrine of federal paramountcy.
4) Natural Resources Agreements
The fourth exception to the general rule that provincial laws apply to Indians and lands
reserved for the Indians is a right of Indians to take games and fish for food, which is
defined and protected in the three prairies provinces by the “Natural Resources
Agreements”. Provincial laws cannot deprive Indians of this right. The Natural
Resources Agreements are part of the Constitution of Canada.
5) Section 35
Section 35 of the Constitution Act, 1982 provides that: “The existing aboriginal and treaty
rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”.
If a provincial law infringed (limited) an aboriginal or treaty right, the law must serve a
compelling and substantial objective and satisfy the other elements of the Sparrow
framework for the justification of limits on the s. 35 rights.
3) Section 88 of the Indian Act
I) Text of s. 88
“Subject to the terms of any treaty and any other Act of the Parliament of
Canada, all laws of general application from time to time in force in any
province are applicable to and in respect of Indians in the province, except
to the extent that such laws are inconsistent with this Act or any order,
rule, regulation or by-law made thereunder, and except to the extent that such
laws make provision for any matter for which provision is made by or under
this Act.”
Section 88 operates as a federal adoption, or incorporation by reference, of provincial
laws, making provincial laws applicable as part of federal law.
II) Laws of general application
The phrase “laws of general application” certainly excludes provincial laws that single
out Indians for special treatment.
The SCC held that s. 88 did not make provincial laws affecting Indianness applicable to
Indians (Kruger and Manuel v The Queen [1978]). Section 88 did not expand the body of
provincial law that applied to Indians.
*The validity of a provincial law that applies to aboriginal and treaty rights does not
depend on its incorporation into federal law by s. 88, but on Sparrow framework of
justification (which directly applies to provincial law, as well as to federal law).
Most notably, since Dick v The Queen (1985) (case about killing a deer out of season),
the Court has interpreted s. 88 as applying to provincial laws that affect Indianness by
impairing the status or capacity of Indians.
Provincial laws not affecting Indianness apply of their own force and are not covered
by s. 88.
S. 88 is subject to “any other Act of the Parliament of Canada”. So, provincial laws
covered by s. 88 cannot avoid federal paramountcy just because they are covered by s.
88.
III) Paramountcy exception
Section 88 of the Indian Act, by its opening words, is expressly subject to “any other Act
of the Parliament of Canada”, so that any conflict between a federal statute and a
provincial law of general application has to be resolved in favour of the federal statute.
Provincial laws that do not affect Indianness apply to Indians of their own force, not
though s. 88, and they are subject to the ordinary rule of paramountcy, not the expanded
rule of s. 88.
IV) Treaty exception
Section 88 of the Indian Act, by its opening words, is “subject to the terms of any treaty”.
This means that any conflict between a treaty made with the Indians and a provincial
law has to be resolved in favour of the treaty provision.
4) Aboriginal rights
S. 35 of the Constitution Act and the Doctrine of Reconciliation

The rights of Indigenous peoples were entrenched in the Constitution Act, 1982

One of the two fundamental purposes of s. 35 was the achievement of a just and
lasting settlement of aboriginal claims

S. 35 was meant to provide a solid constitutional base upon which subsequent
negotiations can take place

S. 35 affords Indigenous peoples constitutional protection against provincial
legislative power
Recognition of aboriginal rights
Section 35 of the Constitution Act, 1982 gives constitutional protection to “the existing
aboriginal and treaty rights of the aboriginal peoples of Canada”.
Aboriginal rights that have not been extinguished are recognized by the common law and
are enforceable by the courts.
In R. v Sparrow (1990), the SCC recognized the aboriginal right of a member of the
Musqueam Indian Band to fish for salmon in the Fraser River where his ancestors had
fished from time immemorial and that the Government has the responsibility to act in a
fiduciary capacity. The SCC discussed the fiduciary duty owed by the Government; this
confirms that aboriginal rights, including the fiduciary duty, are constitutionally
guaranteed through s. 35.
The effect of Guerin and Sparrow is to confirm that aboriginal rights do exist at common
law, and that they are enforceable at the suit of aboriginal peoples.
Calder v. A.G.B.C. (1973): first case where the SCC recognized that aboriginal rights
survived European settlement.
II) Definition of aboriginal rights
Aboriginal rights are rights held by aboriginal peoples, not by virtue of Crown grant,
legislation or treaty, but by reason of the fact that aboriginal peoples were once
independent, self-governing entities in possession of most of the lands now making
up Canada.
*In R. v Van der Peet the SCC articulated the legal test that was to be used to identify an
existing aboriginal right within the meaning of s. 35 of the Constitution Act, 1982.
III) Identification of aboriginal rights
How do we know what they are?
R. v. Van der Peet (1996)
Indigenous defendant in this case had been convicted of selling fish that she had caught
under the authority of an Indian food-fish license, which prohibited the selling of fish.
Court ruled that exchange of fish did occur in Sto:lo society but it was incidental to
practice of fishing for food. Conviction was determined to be proper.
This case set out the legal test to identify an existing aboriginal rights within the
meaning of s. 35 of the Constitution Act, 1982
1) “In order to be an aboriginal right an activity must be an element of a practice,
custom or tradition integral to the distinctive culture of the aboriginal group
asserting the right”
In order to be “integral”, the practice must be of “central significance” to the aboriginal
society: it must be a “defining” characteristic of the society
2) The practice must have developed before “contact” i.e., before the arrival of
Europeans in North America (but could evolve over the years, e.g., new equipment used
for hunting and fishing)
In summary, to be an aboriginal right the activity must be an element of a practice, custom
or tradition:
i.
integral (central significance) to the distinctive culture of the aboriginal group
asserting the right;
ii.
and the practice mut have developed before contact, that is, before the arrival of
Europeans in North America.
Van der Peet Test
Factors to be Considered in Application of the Integral to a Distinctive Culture Test
1. Courts must take into account the perspective of Aboriginal peoples themselves;
2. Courts must identify precisely the nature of the claim being made in
determining whether an Aboriginal claimant has demonstrated the existence of an
Aboriginal right;
3. In order to be integral a practice, custom or tradition must be of central
significance to the Aboriginal society in question;
4. The practices, customs and traditions which constitute Aboriginal rights are those
which have continuity with the practices, customs and traditions that existed
prior to contact;
5. Courts must approach the rules of evidence in light of the evidentiary difficulties
inherent in adjudicating Aboriginal claims;
6. Claims to Aboriginal rights must be adjudicated on a specific rather than general
basis;
7. For a practice, custom or tradition to constitute an Aboriginal right it must be of
independent significance to the Aboriginal culture in which it exists;
8. The integral to a distinctive culture test requires that a practice, custom or tradition
be distinctive; it does not require that that practice, custom or tradition be
distinct;
9. The influence of European culture will only be relevant to the inquiry if it is
demonstrated that the practice, custom or tradition is only integral because of
that influence;
10. Courts must take into account both the relationship of Aboriginal peoples to the
land and the distinctive societies and cultures of Aboriginal peoples.
**Evolution of an aboriginal right: it is possible to a practice evolve.
Issue: can a practice that was adopted by an Aboriginal people purely for survival count
as one that was integral to distinctive culture? Could such a practice, e.g., mitigatory
people cutting down trees for shelter, evolve into a right to cut down trees for the
purpose of building a permanent home today?
R. v. Sappier (2006) – harvesting wood to build shelter (which any society would do to
survive) – does this meet the Van der Peet test? SCC said yes:
“It is the practice, along with its associated uses, which must be allowed to evolve. The
right to harvest wood for the construction of temporary shelters must be allowed to evolve
into a right to harvest wood by modern means to be used in the construction of a modern
dwelling Any other conclusion would freeze the right in its pre-contact form. (at para 48)”
III) Aboriginal self-government
The aboriginal right of self-government must exist by virtue of the fact that aboriginal
people were living in self-governing communities before the arrival of Europeans.
Example: R. v Pamajwon (1996)
The SCC rejected a claim by the Shawanaga and Eagle Lake First Nations to conduct
high-stakes gambling on their reserves. The validity of the gambling has to be determined
when members of the First Nations were charged with gaming offences under the federal
Criminal Code. The court applied the Van der Peet test and characterized the aright as “to
participate in, and to regulate, gambling activities on their reserve lands”. However, the
SCC concluded that before the arrival of Europeans, gambling was not an integral part o
the distinctive cultures of the First Nations, and, therefore, that the First Nations had no
aboriginal right to regulate gambling.
IV) Aboriginal title
Aboriginal title is the right to the exclusive occupation of land, which permits the
aboriginal owners to use the land for a variety of purposes.
The SCC in the Calder and Guerin cases recognized that aboriginal title survived
European settlement and the assumption of sovereignty by the British Crown.
Since 1982, aboriginal title, like other aboriginal rights, has been protected by s. 35 of the
Constitution Act, 1982.
Delgamuukw v. British Columbia (1997)
Aboriginal people brought proceedings for a declaration that they had Aboriginal title and
self-government rights over a territory in northern British Columbia. SCC did not grant
declaration sought but ordered new trial.
Test: aboriginal title is proved by showing that
i.
an aboriginal people occupied the land prior to sovereignty: Occupation must be
proved prior to sovereignty, not prior to contact;
ii.
if present occupation is relied on for proof of occupation there must be continuity;
and
iii.
that the occupation is exclusive (which can be proved through oral histories).
Exclusive occupation either means that the land was not used by others or, if it
was used by others, that the Indigenous group had the intention to retain
exclusive control and the power to exclude others if they chose
Note: the Van der Peet test (“integral to distinctive culture”) is not required
Source: aboriginal title has its source in the occupation of land by aboriginal people
before the Crown assumed sovereignty over the land. It does not derive from a Crown
grant.
Proof: proof of occupation does not involve adherence to strict rules of evidence. An
aboriginal title is proved, not by showing a chain of title originating in a Crown grant, but
by showing that an aboriginal people occupied the land prior to sovereignty.
The mere fact of pre-sovereignty occupation is sufficient to show that a title to the land
is “of central significance to the culture of the claimants”, and so the centrality
requirement of Van der Peet does not have to be separately established in order to make
out a claim to aboriginal title.
Requirements:
i.
exclusive: the pre-sovereignty occupation by the first nation has to be exclusive.
If the land was used by others, then it is necessary to show that the claimants’ first
nation has the intention to retain exclusive control and has the power to exclude
other if they chose;
ii.
prior to sovereignty: the point of time at which aboriginal occupation of the land
must be proved in order to make out aboriginal title is “prior to sovereignty”, not
“prior to contact”. This is a relaxation of the Van der Peet time requirement for
the poof of activity-based rights.
iii.
continuity: it is necessary to show a continuity between present and presovereignty occupation. That continuity might have been disrupted for a time,
but so long as there was a substantial maintenance of the connection the
requirement of continuity is satisfied.
Differences between aboriginal title and non-aboriginal title
1) source
The source of aboriginal title derives from pre-sovereignty occupation rather than postsovereignty grant from the Crown;
2) Uses
Aboriginal title confers the right to engage in a variety of activities on the land, and those
activities are not limited to those that have been traditionally been carried on, and are not
limited to those that were integral to the distinctive culture. For example, the exploitation
of oil or gas existing in aboriginal lands would be a possible use.
However, the range of uses to which the land could be put is subject to the limitation that
the uses must not be irreconcilable with the nature of the attachment to the land,
which means that the land is held not only for the present generation but for all
succeeding generations, and cannot be abused or encumbered in ways that would
prevent future generations of the group from using and enjoying it.
3) Inalienability
Aboriginal title is inalienable, except to the Crown. The doctrine of inalienability was a
safeguard against unfair dealings with settlers trying to acquire aboriginal land and an
encouragement to the process of treaty making.
4) Collective right
Aboriginal title can only be held communally. Aboriginal title cannot be held by
individual aboriginal persons because it is a collective right to land held by all members
of an aboriginal nation.
5) Constitution protection
Aboriginal title is constitutionally protected. The constitutional protection accorded by s.
35 is not absolute, but it requires that any infringement of the right must be enacted by
the competent legislative body.
Tsilhqot’in Nation v. British Columbia (2014)
SCC ruled in favour of the Tsilhqot'in First Nation, granting it land title to 438,000
hectares of land.
First time a court has recognized Aboriginal title to a specific land area in Canada.
Indigenous group opposed provincial grant of license to cut trees on provincial Crown
land.
Key findings:

Radical or underlying Crown title is subject to Aboriginal land interests where
they are established.

Aboriginal title gives the Aboriginal group the right to use and control the land
and enjoy its benefits.

Governments can infringe Aboriginal rights conferred by Aboriginal title but only
where they can justify the infringements on the basis of a compelling and
substantial purpose and establish that they are consistent with the Crown’s
fiduciary duty to the group.

Resource development on claimed land to which title has not been established
requires the government to consult with the claimant Aboriginal group.

Governments are under a legal duty to negotiate in good faith to resolve claims
to ancestral lands.
V) Extinguishment of aboriginal rights (and of aboriginal title)
Aboriginal rights (including aboriginal title) can be extinguished in two ways:
i.
by surrender: the surrender must be voluntarily and must be to the Crown.
ii.
by constitutional amendment: it is required at least the active participation of the
affected aboriginal people.
Before 1982, there was a third ways of extinguishing aboriginal rights, and that was by
legislation. But the Constitution Act, 1982 removed the power to extinguish aboriginal
right (and title) by legislation.
VI) Treaty rights
An Indian treaty has been described as unique and sui generis. It is an agreement
between the Crown and an aboriginal nation with the following characteristics:
i.
parties: the parties to the treaty must be the Crown, on the one side, and an
aboriginal nation, on the other side;
ii.
Agency: the signatories to the treaty must have the authority to bind their
principals, namely, the Crown and the aboriginal nation.
iii.
Intention to create legal relations: the parties must intend to create legally binding
obligations;
iv.
Consideration: the obligations must be assumed by both sides, so that the
agreement is a bargain;
v.
Formality: there must be a certain measure of solemnity.
*The surrender of Aboriginal rights is not a requirement of a valid treaty.
*Valid treaty does not have to be concerned with territory (could be about political or
social rights)
Interpretation of treaty rights
The rule for the interpretation of treaties between the Crown and aboriginal nations is that
they should be liberally construed and doubtful expressions resolved in favour of the
Indians.
The reasons for this rule include the unequal bargaining power of the Crown and the
aboriginal people, as well, the representatives of the Crown typically created the written
text and the written records of the negotiations.
Example of generous interpretation was in the R. v Marshall (1999) and R. v Morris
(2006).
R. v. Marshall 1 (1999)
Issue was whether a Mi’kmaq Indian had a treaty right to catch and sell eels (which he
was doing without a license); the SCC gave a generous interpretation of the treaty holding
that a “peace and friendship” treaty which said nothing directly about fishing did provide
a treaty right to catch and sell eels
Extinguishment of treaty rights
Treaty rights may be extinguished in the same two ways as aboriginal rights, that is: i) by
voluntary surrender to the Crown; and ii) by constitutional amendment.
Therefore, the evidence of longstanding non-exercise of treaty rights does not cause an
extinguishment.
However, if a treaty makes provision for its own amendment or repeal, then obviously
the treaty can be amended or repealed as contemplated.
Extinguishment will not be inferred from unclear language. Only clear and plain intention
to extinguish is accepted by the courts as extinguishing.
VII) Section 35
“35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of
Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal people of Canada” includes the Indian, Inuit and
Métis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that
now exist by way of law claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty
rights referred to in subsection (1) are guaranteed equally to male and female
person.”
1) Outside Charter Rights
Section 35 is outside the Charter of Rights, which occupies ss. 1 to 34 of the Constitution
Act, 1982.
This provides some advantages:
i.
the rights referred in s. 35 are not qualified by s. 1 of the Charter, that is, the rights
are not subject to “such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society” - (i.e., no Oakes test)
ii.
the rights are not subject to legislative override under s. 33 of the Charter
(notwithstanding clause).
iii.
the rights are not effective only against governmental action, as stipulated by s.
32 of the Charter - (enforcement/remedies clause).
However, the disadvantage it that the rights are not enforceable under s. 24 (remedies), a
provision that permits enforcement only of Charter rights.
2) “Existing”
The word “existing” obviously has reference to April 17, 1982, which is when the
Constitution Act, 1982 was proclaimed into force.
The last phrase, “or may be so acquired”, makes clear that treaty rights acquired after
1982 are protected by s. 35.
The SCC in Sparrow held that the word existing in s. 35 meant unextinguished.
According to Sparrow, the effect of the word “existing” in s. 35 was to exclude from
constitutional protection those rights that had been validly extinguished before 1982.
3) “Recognized and affirmed”
The Court in Sparrow held that the phrase “recognized and affirmed” should be
interpreted according to the principle that treaties and statutes relating to Indians should
be liberally construed and doubtful expressions resolved in favour of the Indians.
The phrase should also be read as incorporating the fiduciary obligation that government
owes to the aboriginal peoples.
From these two premises, the Court concluded that s. 35 should be interpreted as a
constitutional guarantee of aboriginal and treaty rights.
Sparrow test (Frameowrk)
In Sparrow the Court held that the rights protected by s. 35 were not absolute.
They are not subject to s. 1 of the Charter, but they have been found to have limits, as set
out in Sparrow
Part 1 – Has the right been infringed?
To invoke s. 35, the claimant must demonstrate that the legislation results in prima facie
interference with an existing aboriginal or treaty right (purpose/effect)
i.
is the limitation unreasonable?
ii.
does the regulation impose undue hardship?
iii.
does it deny to the holders of the right their preferred means of exercising
that right?
Part 2 – Is the infringement justified?
If interference found, onus is on Crown to show it is justifiable, by establishing:
i.
the existence of a compelling and substantial legislative objective; and
ii.
that the infringement is consistent with the honour of the Crown, including its
fiduciary duties arising out of its "special trust relationship" with Aboriginal
peoples.

Infringement necessary for Crown’s purpose, minimal impairment, fair
compensation, consultation of Aboriginal group?
So, any law that limit or restrict a s. 35 right must have a justified impairment, which
means that:
i.
compelling and substantial objective: a justified impairment would have to
pursue an objective that was compelling and substantial.
ii.
minimal impairment: the limitation must be as little as possible in order to effect
the desire result’
iii.
fair compensation: in case of a expropriation, a fair compensation should be
available;
iv.
consultation: the aboriginal group must have been consulted.
R v. Gladstone (1996) – internal limitation – changes in Sparrow
Case about restrictions on the sale of herring spawn on kelp.
SCC modifies Sparrow, making it easier for government to justify infringing s. 35
Sparrow notion of priority of access should be limited to cases where the Aboriginal right
in question is "internally limited” (e.g., fishing for food). When right has internal limit,
Aboriginal right should be given priority.
*When the right does not have an internal limit (e.g., the right to engage in commercial
fishing) the Crown can pursue a number of objectives regarding rights and does not have
to give priority to the Aboriginal right.
The allowance for a wide range of objectives (including regional economic fairness, nonaboriginal’s historical reliance upon resources, fairness in distribution of scarce resource,
conservation) is somewhat of a departure from the requirement of a compelling and
substantial legislative objective

deference to government/low threshold of judicial review)
Court decided in Gladstone that there was insufficient evidence to determine whether
statutory scheme was justified and sent case back to trial court.
Application to treaty rights
Sparrow was concerned with an aboriginal right, not a treaty right, but in R. v Badger
(1996) the SCC held that, because s. 35 applied to treaty rights as well as aboriginal rights,
the doctrine laid down in Sparrow applied to treaty rights as well as aboriginal rights.
Application to extinguishment
It is implicit in Sparrow that s. 35 now protects aboriginal and treaty rights from
extinguishment by federal legislation. The effect of s. 35 is that aboriginal and treaty
rights can only be extinguished in two ways: 1) surrender; and 2) constitutional
amendments.
Application to provincial laws
Section 35 also affords aboriginal people protection against provincial legislative power,
which means that s. 35 would permit an infringement by provincial law only if the law
satisfied the justificatory standards of Sparrow.
So, in Tsilhqot’in, the Court concluded that the application of provincial laws to
aboriginal and treaty rights should be determined by the same Sparrow framework as
applies to federal laws.
Duty to consult – Haida Nation v British Columbia (2004)
The honour of the Crown entails a duty to negotiate aboriginal claims with First Nations.
And, while aboriginal claims are unresolved, the honour of the Crown entails a duty to
consult and if necessary accommodate the interests of, the aboriginal people, before
authorizing action that could diminish the value of the land or resources that they claim.
The duty to consult and accommodate was established in Haida Nation v. British
Columbia (2004).
The extent of consultation and accommodation is proportionate to a preliminary
assessment of the strength of the case supporting the existence of the right or title, and
the seriousness of the potentially adverse effect upon the right or title claimed.
Remedies for breach of s. 35
It has already been explained that s. 35 of the Constitution Act, 1982 is outside tPart I of
the Act, which comprises the Charter of Rights. Among other things, this means that the
remedial discretion provided to a court of competent jurisdiction by s. 24 of the
Charter is not available for breaches of s. 35.
Generally speaking, the consequence to a law that has been held to infringe s. 35 will be
nullity, which opens a series of remedies:
i.
declaration of invalidity;
ii.
injunction to prevent action that is not authorized by a valid law;
iii.
damages in tort, contract, or breach of fiduciary duty for acts causing damage
unauthorized by valid law.
Section 25
“25. The guarantee in this Charter of certain rights and freedoms shall not be
construed so as to abrogate or derogate from any aboriginal, treaty or other
rights or freedoms that pertain to the aboriginal peoples of Canada”
Section 25 is part of the Charter of Rights, but does not create any new right. It is an
interpretative provision, included to make clear that the Charter is not to be construed
as derogating any aboriginal or treaty rights.
E.g.: Cobiere v Canada (1999)
Amendment – Section 35.1
Section 35.1 declares that the federal and provincial governments are commited to the
principle that any amendment to s. 91(24) or to s. 35 or to s. 25, a constitutional
conference will be convened to which representatives of the aboriginal peoples of Canada
will be invited to participate the discussions of the proposed amendment.
Through s. 35.1, the aboriginal peoples have gained entry to the constitutional
amendment process.
• R. v. Van der Peet, [1996] 2 S.C.R. 507, paras. 1–6, 15–34, 42–91
(majority), 149–181 (dissent)
• R v. Marshall, [1999] 3 S.C.R. 456
• Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 6
• Tsilhqot’in Nation v. British Columbia, 2014 SCC 44
Topic 11 – Application of the Charter of Rights and Freedoms
“Section 32.(1) This Charter applies:
a. to the Parliament and government of Canada in respect of all matters
within the authority of Parliament including all matters relating to the
Yukon Territory and Northwest Territories; and
b. to the legislature and government of each province in respect of all
matters within the authority of the legislature of each province.”
I) Introduction
Introduction
The term civil liberties is generally interchangeable with human rights, and encompass
a broad range of values that support the freedom and dignity of the individual, and that
are given recognition in various ways by Canadian law.
The political civil liberties include freedom of speech, religion, assembly and
association; the right to vote and be a candidate for elected office; and the freedom to
enter and leave Canada and to move from one province to another.
The legal civil liberties include the freedom from search, seizure, arrest, imprisonment,
cruel and unusual punishment and unfair trial procedures.
The egalitarian civil liberties include equality of access to accommodation,
employment, education and other benefits, implying, at least, an absence of racial, sexual
or other illegitimate criteria of discrimination.
Civil liberties particular to Canada are language rights, covering the right to use English
or French Language, and educational rights, covering the rights of denominational (or
separate) schools.
The evolution of Civil Liberties in Canada
Civil liberties in Canada eventually gained legislative protection because of four main
factors:
i.
growing dissatisfaction in Canada, after the WWII, with having only an implied
bill of rights;
ii.
the influence of the civil rights movement in the US;
iii.
dissatisfaction with the Canadian Bill of Rights (1960);
iv.
the advent of the Canadian Charter of Rights and Freedoms in 1982.
1) Canada’s implied Bill of Rights
Canada’s implied bill of rights is based on the Constitution Act, 1867, which states in its
preamble that Canada is to have “a Constitution similar in Principle to that of the
United Kingdom”. Some examples of the civil liberties and safeguards that Canada has
derived from England include a respect for the rule of law and due process (fairness) in
criminal matters.
Critic: such an implied bill of rights was not effect enough to protect the civil liberties
of Canadians, and there was a need to codify and protect civil liberties by constitutional
legislation to achieve legitimacy.
2) Influence of the Civil Rights Movement in the US
In the landmark 1954 US Supreme Court case of Brown v Board of Education, the Court
outlawed racial segregation of Blacks and whites in public schools. This movement
spread its force across the world.
3) Dissatisfaction with Canada’s 1960 Bill of Rights
The Bill of Rights of 1960 was an ordinary act of the Federal Parliament and applied
only to federal laws, not provincial ones. So, it was not entrenched and the SCC
interpreted it cautious with deference to legislative supremacy, which concerned many
civil rights activists and, specially, many women.
The advent of Canada’s new Charter of Rights and Freedom
On April 17, 1982 the Queen Elizabeth proclaimed the Constitution Act, 1982 in force,
and the Canadian Charter of Rights and Freedoms was officially entrenched in
Canada’s Constitution.
Protection of Human Rights in Canada
Does the Charter applies to the private sector?
Only indirectly because statutes and the Human rights codes (federal, provincial, and
territorial) governing the private sector must comply with the Charter.
Vriend case
Sexual orientation not in Alberta’s Individual Rights Protection Act.
Supreme Court found sexual orientation to be analogous to other prohibited grounds of
discrimination. Read in sexual orientation into the act to make it compliant with the
Charter.
1) Private Sector Protection – provincial and territorial areas
Legislation: human rights acts in all provinces and territories;
Scope: protect individuals from discrimination principally by provincially or territorially
regulated companies, businesses, restaurants, retailers, landlords, educational
institutions, entertainment businesses, when they engage in activities such as
employment, housing and accommodation, and the sale of goods and services. Can
also apply to provincial governments themselves when engaged in these activities.
Enforcement: administered by human rights tribunals in the provinces and territories.
2) Private Sector protection – Federal areas
Legislation: Canadian Human Rights Act.
Scope: protect individuals from discrimination principally by federally regulated
companies/industries, banking, communications, shipping, when they engage in in
activities such as employment, housing and accommodation, and the sale of goods and
services. Can also apply to the Federal government when engaged in these activities.
*Exceptions to Human Rights Protections
A number of exceptions are built into human rights acts. The two most important that
have prevision in the Canadian Human Rights Act are:
1) Bona fide occupational requirement (s. 15(1) CHRA):
If a job requirement exists for a legitimate reason and cannot be removed without undue
hardship for the employer.
E.g., wearing a hard hat on a construction site. Human rights to wear religious
attire would yield to this legitimate safety requirement. Note though that such
exceptions to human rights protections should be carefully tailored. Provinces are
exploring questions such as this: where exactly on a construction site do legitimate
safety concerns require a hard hat?
2) Affirmative action (s. 16(1)) CHRA)
special government or business initiatives to help certain identifiable groups who have
experienced discrimination in the past (women, Indigenous, visible minorities, and
persons with disabilities) achieve equality with others.
3) Protection when Governments are Involved - Charter
Legislation: Canadian Charter of Rights and Freedoms
Scope: provides Canadians with fundamental political and legal rights and guarantee
equal treatment under the law and in the law’s application. Applies only to
governments and no to businesses, organizations, or individuals.
Enforcement: enforced generally by application before a superior court.
CHARTER
Entrenched Charter
Unlike the Canadian Bill of Rights which is just a statute, the Charter is part of the
Constitution - what does this mean?
i.
Can only be altered by constitutional amendment
ii.
Can override inconsistent statutes
iii.
Applies to both levels of government
Judicial review on Charter Rights
Section 1 provides that:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out
in it subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
Expansion of judicial review: new grounds of review
The major effect of the Charter has been an expansion of judicial review because it adds
a new set of constitutional provisions that will invalidate inconsistent laws. Thus, whereas
before 1982 judicial review in Canada was for the most part confined to federalism
grounds, since 1982 judicial review can also be based on Charter grounds.
The result is that judicial review under the Charter involves a much higher component of
policy than any other line of judicial work.
Source
Section 1: Guarantee of Rights and Freedom
Section 1 of the Charter guarantees the rights and freedoms it sets out but also states that
they are not absolute. They are subject to “reasonable limits prescribed by law as can
be demonstrably justified in a free and democratic society.”.
Critic
Potential problems if courts / judges have the power to invalidate legislation that violates
the Charter
1) Legitimacy: Is it legitimate in a free and democratic society to empower non-elected
judges to strike down the decisions of elected legislators? (is this “counter-majoritarian”?)
Argument pro judicial review: notwithstanding clause limits the power of judicial
review because it empowers legislatures to overrule the decisions of the Supreme Court
on rights issues. So, there is counter balance.
2) Capacity: Are judges actually better qualified than legislators to decide policy-laden
rights issues?
While there is no conclusive way to decide whether legislatures or courts are the best
institutions to resolve disagreements about rights, courts do have the significant
advantages that disagreements about the scope of the rights or their application to
particular cases have to be resolved by reference to the constitutional text and any relevant
decided cases, and that is something that the courts are better at than legislatures.
Role of Section 1
Because of s. 1, judicial review of legislation under the Charter is a two-stage process:
i.
first stage: to determine whether the challenged law derogates from a Charter
right;
ii.
second stage: to determine whether the law is justified under s. 1 as reasonable
limit prescribed by law that can be demonstrably justified in a free and democratic
society. The reviewing court must decide whether the law should be upheld
despite the fact that it limits a Charter right. In other words, the Court must decide
whether the enacting legislative body has made an appropriate compromise
between the civil libertarian value guaranteed by the Charter and the competing
social and economical objectives pursued by the law.
Role of s. 33
Any judicial decision could be overcome by the re-enactment of the invalid statute
coupled with a declaration of override; in other words, the judicial veto is only
suspensory. The fact that the elected legislative bodies have been left with the last word
answers a good deal of the concern about the legitimacy of judicial review by unelected
judges.
Dialogue theory
The Charter contemplates “dialogue” between the judicial and legislative branch.
Important case: R. v. Mills
Two possible examples of the dialogue theory:
1) Notwithstanding clause
One of the examples of dialogue comes from the presence in the Charter of Rights of the
power of override in section 33 means that most decisions striking down statutes on
Charter grounds can be reversed by the competent legislative body.
It is important to think of the Court’s Charter decisions, not as imposing a veto on
desired legislative policies, but rather as starting a dialogue with the legislative branch
as how best to reconcile the individualistic values of the Charter with the accomplishment
of social and economic policies for the benefit of the community as a whole.
2) Remedial discretion
Moreover, the dialogue occurs, for example, when a law fails to pass Charter scrutiny
under s. 1 and the legislature tries again to enact a law with the same objective but which
makes a less drastic encroachment on a Charter right.
A paradigmatic example of dialogue theory is the temporary suspension of invalidity.
Manitoba Language Reference
Schachter v. Canada (1992)
Case dealing with Unemployment Insurance Act, 1971, benefits for natural vs adoptive
parents. Budge issues.
SCC said it would only grant a temporary period of validity to an unconstitutional
law in three circumstances, namely, where the immediate striking down of the law:
i.
Would pose a danger to the public;
ii.
Would threaten the rule of law;
iii.
Would result in the deprivation of benefits from deserving persons.
Note: this standard has since loosened. Rather than emergency rationale for delaying
declaration of invalidity, courts are increasingly using dialogue as a rationale for
delaying declaration of invalidity.
Benefit of rights
**A person need not be a Canadian citizen to invoke Charter rights.
Singh case – charter rights apply to foreign (natural persons)
“Everyone” = every human being who is physically present in Canada and by virtue of
such presence amenable to Canadian law (i.e., include people who have entered Canada
illegally).
Citizenship is a required qualification for some rights: voting rights (s. 3), mobility rights
(s. 6) and minority language education rights (s. 23). The mobility rights of s. 6(2) (but
not s. 6(1)) apply to every citizen and “every person who has the status of permanent
resident of Canada” (a term that is defined in the federal Immigration and Refugee
Protection Act).
No independent requirement of a connection to Canada to claim Charter rights i.e.,
Charter rights held by those who enter Canada illegally (Singh v. Minister of
Employment and Immigration (1985)). Case dealt with question of whether procedures
for the adjudication of refugee status claims in Immigration Act, 1976 violate s. 7 of the
Charter.
Corporations.
Rights that include the phrase “everyone”, “anyone” or “any person”, likely include a
corporation as well as an individual. There are some logical exceptions (i.e., s. 2(a)
freedom of conscience and religion does not apply to a corporation as a corporation
cannot hold a belief; but note Big M Drug Mart where a corporation invoked s. 2(a) as a
defence to a criminal charge which was permissible).
Also, a corporation cannot be detained, imprisoned or arrested so s. 9 right against
arbitrary detention does not apply.
However, it is wrong to assume that a corporation can never invoke a right that does
not apply to a corporation. In R. v. Big M Drug Mart, the SCC held that a corporation
could invoke the right to freedom of religion in s. 2(a) as a defence to a criminal charge
of selling goods on Saturday. The corporation was not seeking a remedy under s. 24 but,
as a defendant to a criminal charge, the corporation was entitled to rely on any
constitutional defect in the law.
Citizen
Generally speaking, a person need not to be a Canadian citizen in order to invoke Charter
rights. Every persons who have entered Canada illegally are entitled to most of the
Charter rights simply by virtue of their presence on Canadian soil (Singh case).
Citizenship is a required qualification for some rights:
i.
voting rights (s. 3);
ii.
mobility rights (s. 6);
iii.
minority language educational rights (s. 23).
II) Burden of rights
Section 32(1) This Charter applies:
a) to the Parliament and Government of Canada in respect of all matters
within the authority of Parliament including all matters relating to the
Yukon Territory and Northwest Territories; and
b) to the legislature and government of each province in respect of all matters
within the authority of the legislature of each province.
Both level of governments
Section 32(1) expressly provides that the Charter applies to “the Parliament and
government of Canada” and to “the legislature and government of each province”. This
makes clear that both levels of government are bound by the Charter.
New Brunswick Broadcasting Co. v Nova Scotia – parliamentary privilege
The question arose whether the NS legislative assembly, which had prohibited the
televising of its proceedings, was bound by the Charter of Rights. Having held that the
Charter applied to the legislative assembly of Nova Scotia, the Court went on to hold by
a majority that the power of the assembly to “exclude strangers” (including the television
media) from its deliberation was immune from Charter review because of
parliamentary privilege.
Legislative silence
Vriend v. Alberta (1998)
As a general proposition, the Charter does not impose positive duties to act to legislative
bodies or governments. But, having enacted a relatively comprehensive statute providing
redress for acts of discrimination, the Legislature subjected itself to the Charter, including
the obligation to cover everyone who, under s. 15, had a constitutional right to be
included.
Legislative exclusion
Dunmore v. Ontario (2001)
A challenge was brought to the exclusion of agricultural workers from Ontario’s labour
relations statute. The SCC held that the enactment of the labour relations statute provided
the “minimum of state action” that was required for the invocation of the Charter. Thus,
the exclusion of the agricultural workers was a breach of s. 2(d) and the provision
excluding them was severed from the statute.
Statutory authority
It follows from s. 32 that any body exercising statutory authority is bound by the
Charter. For example, Governor in Council, Lieutenant Governor, ministers, officials,
municipalities, administrative tribunals and police officers.
So, action taken under statutory authority is valid only if it is within the scope of that
authority. Since neither Parliament nor a Legislature can itself pass a law in breach of the
Charter, neither body can authorize action which would be in breach of the Charter.
Greater Vancouver Transportation Authority v. Canadian Federation of Students (2009)
Charter applies to a municipal by-law, made under statutory authority, that purported to
prohibit political postering on city buses.
Eldridge v. British Columbia (1997)
Does the Charter apply to a hospital, which did not provide sign-language interpretation
for deaf persons seeking medical services? Yes, because hospital was implementing a
government policy or program, rather than making a rule for day-to-day operations.
Distinction from Stoffman v Vancouver General Hospital case on mandatory retirement
policy. Hogg criticizes this distinction, arguing that day-to-day operations decisions also
ultimately implement government policies on health care.
Government
It is expressly mentioned in s. 32 that the Government is subject to the Charter. In that
sense, even when the government is acts under prerogative powers, which are common
law powers possessed only by government (award honours, issues passports, conduct
foreign affairs), it is subject to the Charter.
Governments sometimes act under two powers:
i.
prerogative powers, which are common law powers possessed only by
government. Examples: issuing passports, awarding honours, conducting
foreign affairs.
ii.
under common law powers that are available to everyone. Examples: entering
into contracts, buying property:
Charter applies to governmental action taken under both kinds of common law powers.
“Control test”: Is there an institutional or structural link with government? If yes, that
entity is bound by the Charter. It is highly case-specific
Courts
Does the Charter apply to the Courts? The SCC has answered this question yes and no.
1. No
Retail, Wholesale and Department Store Union v Dolphin Delivery (1986)
The SCC held that a court order (injunction) was not governmental action, and
therefore the injunction issued by the Supreme Court of British Columbia was not
subject to the Charter.
2. Yes
R. v. Rahey (1987)
The SCC had to determine whether a criminal court had denied to a defendant the
s. 11(b) right ot be tried within reasonable time. The SCC held that the delay
was a breach of s. 11(b) of the Charter and the Court ordered a stay of the
proceedings.
The SCC said yes again in British Columbia Government Employees’ Union v. British
Columbia (1988)
Tried to reconcile with Dolphin Delivery by holding that a court order is indeed subject
to Charter review (and noting that in Dolphin Delivery the court order resolved a dispute
between two private parties based on the common law). But if the Court resolves a dispute
where the government is a part, then the Charter applies – this apply to the common law.
Common law
Dolphin Delivery case
The Charter does not apply to the common law, or at least those rules of the common
law that regulate relationships between private parties.
While the Charter does not apply directly to the common law (where no governmental
actor is involved), the Charter does have an indirect effect on the common law because
the judiciary ought to apply and develop the principles of the common law in a manner
consistent with the fundamental values enshrined in the Constitution.
Recall: the Charter applies to Courts where a court order is issued on a court’s own motion
for a public purpose or in a proceeding in which the government is a party, or in a purely
private proceeding that is governed by statute law.
The Charter does not apply to the common law regulating relationships between
private parties. See Hill v. Church of Scientology (1995) – defamation case, common
law must be developed in accordance with “Charter values”.
Private action
The Charter applies only where there has been governmental action of some kind, that is,
action by the Parliament or government or by the Legislature or government of a province.
The Charter regulates the relation between government and private persons, but it
does not regulate the relation between private persons and private persons.
Private action therefore is excluded from the application of the Charter.
Does this mean that a restaurant can discriminate against a patron based on the colour of
his / her skin? No because of provincial (and federal, where relevant) human rights codes.
Foreign governments
What about extradition / deportation? Cases where persons are extradited to face the death
penalty in another country (United States v. Burns (2001)); or where persons are deported
to torture (Suresh v. Canada (2002)); or Canadian citizen held in Guantanamo Bay
(Canada v. Khadr (2008))
Waiver of Rights
Constitutional rights can sometimes be waived by rights-holders (one example: waiving
the right to counsel in a criminal proceeding under s. 10(b) of the Charter, where a person
would like to represent him or herself)
Waiver requires an informed, clear and voluntary choice to surrender the right.
Different than a failure to exercise the right, or the forfeiture of a right. Waiver exists due
to the presumption that the right is for the benefit of the person who chooses to exercise
it.
Judicial review – Charter analysis
Judicial review of legislation under the Charter is a two-stage process:
1. Does the challenged law abridge a Charter right?
2. If the answer to the first question is yes, ask whether the law is justified
under s. 1 of the Charter as a reasonable limit prescribed by law that
can be demonstrably justified in a free and democratic society
1) Does the law abridge a Charter right?
The Court looks at two issues:
i.
How to characterize the challenged law? purpose and effects
ii.
What is the meaning of the asserted right? interpretation methods
II) Purpose and effect – characterization of the law (i)
We look at the purpose and effect of the law. Recall that the way to characterize the law
for the purpose of the federalism review was to look at the “matter” (or “pith and
substance” of a challenged law – this often involves examining the purpose of the law).
For a Charter analysis, the law will offend the Charter if either its purpose or its effect
is to abridge a Charter right.
R. v. Big M Drug Mart (1985) – religious purpose
Sunday-closing case; SCC held that the federal Lord’s Day Act which prohibited
commercial activity on a Sunday abridged the guarantee of freedom of religion in s. 2(a)
of the Charter (as the purpose of the law was a religious one: to compel observance of
the Christian Sabbath) – this was an invalid purpose, so the Court did not even need to
look at the effect of the law (and noted that effects can never be relied on to save
legislation with an invalid purpose).
Note: the Lord’s Day Act (Big M Drug Mart) is the only law that ever failed the purpose
test in the SCC (as most laws are not enacted with the purpose of abridging a Charter
right) – the entire Act was struck down.
R. v. Edwards Books and Art (1986) – secular purpose, but effect violated
Charter
Provincial Sunday-closing case where the purpose of the law was a secular one of
prescribing a uniform pause day for workers; so the law passed the purpose test; however,
the effect of the law was to impose a burden on those retailers whose religious beliefs
required them to abstain from work on a day other than Sunday, which was an
abridgement of freedom of religion; notably, the Court relied on the benign purpose to
uphold the law under s. 1 of the Charter.
Therefore, the law passed the purpose test. However, the Court held that the effect of the
law was to impose a burden on those retailers whose religious beliefs required them to
abstain from work on a day other than Sunday. So, the effect of the law was an
abridgment of freedom of religion.
II) Interpretation of the Charter – What is the meaning of the asserted right? (ii)
1) Progressive interpretation
A constitution is different from an ordinary statute because it is broad enough to cover a
wide range of unpredictable situations, it is difficult to amend, and it is likely to remain
in force for a long time.
This means that a flexible interpretation is needed, so that the constitution can be adapted
over time to changing conditions.
The “doctrine of progressive interpretation” = the constitution is a “living tree capable
of growth and expansion within its natural limits” (Edwards v. AG Canada (1930 –
Person Case).
2) Generous Interpretation
Edwards v. AG Canada (1930) – the SCC called the constitution a “living tree” that
should be given a “large and liberal interpretation”.
This means more judicial activism and a restriction on the powers of the legislature
in Charter cases.
3) Purposive interpretation
The “purposive” approach to the interpretation of Charter rights is an attempt to ascertain
the purpose of each Charter right.
But note that of course the actual purpose of the right is usually unknown so courts have
much discretion: look to the language of the right, context, other Charter rights, legislative
history of the Charter, etc.
In theory, the purposive approach will narrow the scope of a right, because it means
the right must be confined to its purpose (but note that the purposive approach goes
hand in hand with the “generous” approach – use the widest possible reading of the right,
without overshooting its purpose)
Conflict between Rights
There are a few conflicts that are contemplated by the Charter, ss. 25 (Aboriginal treaty
rights) and 29 (denominational schools) for example:

Section 25 recognizes that aboriginal and treaty rights, which are available to
people who are defined by their race, may be regarded as in conflict with the
equality guarantee, and provides that the aboriginal and treaty rights are to
prevail.

Section 29 recognizes the possibility of conflict between denominational school
rights (s. 93) and the equality rights (s. 15) and provides that the denominational
school rights are to prevail.
Conflict between rights is generally resolved under s.1 of the Charter, we don’t read
down the meaning itself (R. v. Keegstra).
Ad hoc balancing by the courts, for the most part.
R. v. Keegstra (1990)
Person charged with wilfully promoting hatred contrary to the Criminal Code (equality
vs. freedom of expression). The rights conflict was resolved through section 1 (i.e.,
Criminal Code provision upheld; it did violate freedom of expression but was justified
under s. 1)
This is an example of the courts’ ad hoc approach to the balancing of rights, rather
than assigning priorities to rights or mutually modifying the rights (thus creating
compatible definitions).
Undeclared rights – s. 26
Section 26 of the Charter determines that “The guarantee in this Charter of certain rights
and freedoms shall not be construed as denying the existence of any other rights or
freedoms that exist in Canada.”.
Section 26 is a cautionary provision, included to make clear that the Charter is not to be
construed as taking away any existing undeclared rights or freedoms. Rights and
freedoms protected by the common law or by statute will continue to exist
notwithstanding the Charter. However, s. 26 does not incorporate these undeclared
tights and freedoms into the Charter. So undeclared rights can be altered or abolished by
action of the competent legislative body and the remedy under s. 24 is not available for
their enforcement.
--
Step 2:
Limitation of rights – Oakes test
The source is section 1 of the Charter:
“The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.”
I) Introduction
Section 1 of the Charter contemplates that judicial review of legislation under the Charter
should proceed in two stages:
i.
first stage: the court must decide whether the challenged law has the effect of
limiting one of the guaranteed rights; if the challenged law does have this effect,
the second stage is reached.
ii.
second stage: the court must then decide whether the limit is a reasonable one that
can be demonstrably justified in a free and democratic society.
II) Relationship between s. 1 and rights
There is a close relationship between the standard of justification required under s. 1 and
the scope of the guaranteed rights. If the courts give to the guaranteed rights a broad
interpretation that extends beyond their purpose it is inevitable that the court will relax
the standard of justification under s. 1 in order to uphold legislation limiting the extended
right.
In R. v. Oakes (1986) the SCC decided to prescribe a single standard of justification
for all rights, and to make the standard a high one, and to cast the burden of satisfying it
on the government.
In Hogg’s opinion, the courts should apply the strict standard of justification prescribed
by Oakes, and should give a purposive (rather than a generous) interpretation to the
guaranteed rights. That approach will help to stem the wasteful floods of litigation, to
limit the occasions when courts have to review the policy choices of legislative bodies
and to introduce meaningful rules to the process of Charter review.
III) Burden of proof - Oakes
Who bears the burden of proof of factual issues in Charter litigation?
i.
at the first stage of Charter review, the court must decide whether a Charter right
has been infringed, and it rests on the person assertion the breach the burden
of proving;
ii.
at the second stage is the inquiry into justification under s. 1 and the burden of
persuasion shifts to the government seeking to support the challenged law.
IV) Prescribed by law
The words “prescribed by law” make clear that an act that is not legally authorized can
never be justified by s. 1.
So, the law must be adequately accessible to the public and the law must be formulated
with sufficient precision to enable people to regulate their conduct by it, and to provide
guidance to those who apply the law. Citizens must know what is prohibited so they can
act accordingly (which means that the law must be accessible to the public and formulated
with sufficient precision) – Irwin Toy. This standards are meant to avoid vagueness.
Little Sisters Book and Art Emporium v. Canada (2000)
Case in which customs officials discriminated against LGBT literature in administering
statutory prohibition of obscene materials. Statute (customs legislation) did not
authorize distinction between LGBT and heterosexual materials and therefore the
actions of the customs officials were not prescribed by law.
Why is this a requirement in s. 1?
So, all official action in derogation of rights must be authorized by law in order to
preclude arbitrary and discriminatory action by government.
The word law includes:
i.
subordinate/delegated legislation such as regulations and municipa by-laws.
ii.
common law: R. v. Swain (1991). Case about common law rule permitting the
Crown to introduce evidence about the insanity of the accused. Halpern v. Canada
(A.G.) (ON CA, 2003) – Common law definition of marriage that excluded samesame couples ruled unconstitutional
iii.
prerogative order governing the issue of passports
iv.
“binding government policies or rules (as long as accessible and sufficiently
precise) – recall Greater Vancouver Transportation Authority v. Canadian
Federation of Students (2009).
Vagueness
*Limiting law must not be too vague (which relates to the requirement that the “law”
must be sufficiently precise) – see Irwin Toy v. Quebec (1989)
V) Reasonable and Demonstrably Justified
R v Oakes, 1986
David Oakes was found with a small amount of hashish oil. Charged with possession for
the purpose of trafficking under s. 4(2) of the Narcotic Control Act. At the time s. 8 of
the Narcotic Control Act stated: “If the court finds that the accused was in possession of
the narcotic he shall be given an opportunity of establishing that he was not in possession
for the purpose of trafficking”.
Law created a reverse onus; required the defendant to prove he did not intend to traffic.
Infringed on Charter, s. 11(d) presumption of innocence.
The SCC developed a general two-part test (Oake test) for determining whether a law
that infringes the Charter can be justified under section 1.
The onus is on the Crown to show on a balance of probabilities (preponderance of
probability) that the limit is reasonable by proving that (i) it relates to an important social
objective and (2) that it is proportionate response to the problem.
More specifically the Oakes test consist in:
1) Important social objective
The law must pursue an objective that is sufficiently important to justify limiting a Charter
right. The government’s objective is creating the law must be shown to be “of sufficient
importance” to warrant overriding a Charter right.
The standard for this part of the test is high but is often met by the government in Charter
cases. In the words of the SCC, for an objective to qualify as sufficiently important, it
must relate to concerns which are pressing and substantial in a free and democratic
society, rather than merely trivial.
* So far, there has been only one case in which he SCC has unequivocally rejected the
legislative objective: R. v. Big M Drug Mart (1985): religious purpose to compel the
observance of the Christian sabbath was prohibited.
Sometimes it is difficult to discern the objective of the legislatures at the time the law was
enacted:

RJR MacDonald v. Canada (1995) – what was the objective in banning the
advertising of tobacco products and was it sufficiently important? (remember that
tobacco itself was not banned)

Vriend v. Alberta (1998) – challenge to Alberta’s human rights legislation, so
difficult to look to the objective of the law because the problem with the law was
the omission of sexual orientation (of course, the objective of the law was to
protect human rights, so the court had to find that the objective for the purposes
of analysis was the failure to include sexual orientation within the scope of
protections)

R. v. Big M Drug Mart (1985) – federal Sunday closing law – what was the
objective? Compelling the observance of the Christian sabbath (which would
infringe freedom of religion)? Or just to provide a common day of rest (a secular
objective)? Note that the court held in this case that objectives cannot shift over
time – the question is the intent of the legislature at the time of enactment

Shift in emphasis is permitted. See R v Butler (case about anti-obscenity
provision of the Criminal Code). Change in emphasis from previous moral norms
now includes promoting sexual equality as a moral standard.
Cost
What about cost? i.e., when the limit on a Charter right saves money. See Hogg §38:17

Singh v Minister of Employment and Immigration (whether oral hearing by
decision-making body had to be given to every refugee claimant. Saving money
not valid grounds for failing to deliver oral hearing)

Generally prohibits utilitarian considerations as pressing and substantial
objective.
However, consider the following cases:
i.
R v Lee (failure to appear for jury trial)
ii.
Newfoundland v NAPE (pay equity in hospital sector delayed due to “financial
crisis”, cuts to many sectors of government spending)
2) Proportionality
If the objective is found to be sufficiently important, the government must show that the
means used a reasonable and fair way to achieve its legislative objective. To make this
determination, a court considers three components, all of which must be satisfied:
A) Rational connection
The measures that impair the Charter must be designed to achieve the governments
objective. In other words, the measures must be rationally connected to the legislative
objective.
The law must be carefully designed to achieve the objective in question; it should not ne
arbitrary, unfair, or based on irrational considerations.
The Oakes case itself was determined by the SCC finding that the law failed the rational
connection requirement.
Benner v. Canada (1997) – also failed the rational connection test
Law imposed more stringent requirements for Canadian citizenship on a person
born outside Canada before 1977 to a Canadian mother vs those born to a Canadian
father – failed the rational connection test because the children of Canadian mothers
could not be rationally regarded as more dangerous than the children of Canadian fathers.
B) Minimum impairment
The court will examine the degree to which the measures impair the right or freedom. The
right should be impaired as little as possible
The requirement of least drastic means has turned out to be the hear and soul of s. 1
justification. Consequently, for the great majority of cases, the arena of debate was
the minimal impairment (least drastic means).
In a federal country like Canada, there ought to be some room for distinctive provincial
responses to similar social objective. So, if s. 1 is to permit some accommodation of these
federal values, the judges have to allow provincial legislatures a margin of appreciation,
a zone of discretion within different legislative choices in derogation of a Charter right
could be tolerated.
C) Proportionate effect
The effects of the measures that limit the right or freedom must be proportionate to the
objective identified in the first component of the test. In other words, the law’s benefit
to society must outweigh the negative effects of the infringement. The greater the
impairment of the right, the more important the objective must be. The question is
whether the Charter infringement is too high price to pay for the benefit of the law.
So far, this stage has never had any influence on the outcome of any case.
There is a redundancy because an affirmative question to the sufficiently important
objective (first step: pressing and substantial legislative goals) will always yield an
affirmative answer to the fourth step (proportionate effect).
The SCC has noted that the first stages of the Oakes test all take into account the law’s
purpose (pressing goal, rational connection, minimum impairment);
Alberta v. Hutterian Brethren of Wilson Colony (2009)
Only the final stage takes “full account of the severity of the deleterious effects of a
measure on individuals or groups” (see– re driver’s licence photos).
The 2009 Supreme Court of Canada case Alberta v. Hutterian Brethren of Wilson Colony
was about whether a new driver's license photo requirement violated freedom of
religion. The court ruled that the requirement was justified to prevent identity theft.
Impact: Some critics of the decision argued that the court's decision made it harder for
religious minorities to practice their faith.
Application of the Oakes test to common law
The Oakes test applies to common law limits on rights. It is well established that a rule
of the common law may be a limit “prescribed by law” under s. 1, and in two cases
common law rules in derogation of Charter rights have been held to be justified under s.1
(R. v. Swain and R. v. Daviault).
R. v. Swain (SCC, 1991) – Case about common law rule permitting the Crown to
introduce evidence about the insanity of the accused
Halpern v. Canada (A.G.) (ON CA, 2003) – Common law definition of marriage that
excluded same-same couples ruled unconstitutional
** However, the Oakes test does not apply to administrative tribunals and other decision
makers exercising discretionary power under the authority of a statute.
Application of Oakes test to some rights
Maybe the Oakes Test is too stringent for equality rights? (Andrews v. Law Society of
British Columbia (1989) – case about whether British Columbia’s requirement of
Canadian citizenship for admission to the legal profession infringed s. 15 of the Charter)

s. 7 Charter breach probably cannot be justified under s. 1 (i.e., a law that is not
in accordance with the principles of fundamental justice probably cannot be
justified as a “reasonable limit”)?

Same reasoning may apply to other rights that have internal limits (e.g.,
unreasonable search and seizure, right not to be arbitrarily detained or
imprisoned, right to trial in a reasonable time)
Note that the Oakes framework does not apply to discretionary decisions by
administrative tribunals and other decision-makers exercising statutory discretion;
administrative law/judicial review analysis applies.
Notwithstanding clause: override of rights
Section 33(1) – Parliament or the legislature of a province may expressly
declare in an Act of Parliament or of the legislature, as the case may be, that
the Act or a provision therefore shall operate notwithstanding a provision
included in section 2 or sections 7 to 15 of this Charter.
History
Part of the compromise in the patriation of the constitution; provinces were worried that
the Charter would limit the sovereignty of their legislatures. Recall that Quebec did not
agree to patriation (including the Charter) and so in the beginning added a standard form
notwithstanding clause to each of the statutes in force in Quebec (which ended in 1985
with Liberals elected)
Formal requirements:

Must specify particular Charter provision(s) to be overridden (can simply provide
a numeric list);

specific declaration: must be expressly declare that a statute is to operate the
notwithstanding a Charter right.

Automatically expires after 5 years, and any re-enactments are also subject to 5
year “sunset clause” (s. 33(3)).
Rights that may be overridden:
i.
fundamental freedoms (s. 2);
ii.
the legal rights (ss. 7 to 14);
iii.
equality rights (s. 15).
Rights that cannot be overridden include:
i.
democratic rights (ss. 3-5);
ii.
mobility (s. 6);
iii.
language (ss. 16-23);
iv.
sexual equality (s. 28).
Ford v. Quebec (1988) – controversial use of notwithstanding clause
SCC held that a law banning the use of languages other than French in commercial signs
was an infringement of freedom of expression. Provincial legislature reenacted the law
prohibiting the use of the English language in outside commercial signs with the
notwithstanding clause (note that the notwithstanding clause lapsed in 1993 after 5
years, and the Quebec Legislature lifted the ban on English language signs and replaced
it with legislation that required only that French be predominant (no notwithstanding
clause was used).
The SCC decided held that the normal presumption against retroactivity should be applied
to the language of s. 33, and the section should be construed as permitting prospective
derogation only.
Judicial review
To what extent is the exercise of the override power subject to judicial review?
The use of the override needs to conform with s. 33

Only applies to certain rights;

Must be specific as to the statute that is exempted from the Charter and the rights
overridden;

May not be given retroactive effect (Ford v Quebec)
These requirements are mainly formal and not very demanding.
Scholarly proposals to introduce some sort of reasonableness or justification test, or even
a requirement that the clause only be used after the courts have found a statute to be
invalid, have been rejected by the courts.
Hogg §39:7 quoting Ford case (para 33): “[T]he Court said that s. 33 ‘lays down
requirements of form only’, and that there was ‘no warrant for importing into it grounds
for substantive review’”.
Evaluation of section 33
There are very few uses of the notwithstanding clause and the governments are
exceedingly reluctant to use s. 33 partly because there are committed to the Charter and
partly because there are political resistance that could be expected from the opposition
parties, the press, the organized bar and civil liberties groups. The inclusion of a NWC in
a bill performs a signalling function that causes public debates on the issue, that are
usually unwelcome to the government.
While s. 33 looks odd to non-Canadian observers, it has precedents in the Canadian Bill
of Rights, and in the statutory bills of rights enacted by Saskatchewan, Alberta and
Quebec. The power of override seems to be a uniquely Canadian invention, which makes
judicial revies suspensory only. The NWC is an intrinsically sound solution to the
dilemma of rights and courts.
Judicial review
A current issue: to what extent is the exercise of the override power subject to judicial
review?
The use of the override needs to conform with s. 33 (only applies to certain rights; must
be specific as to the statute that is exempted from the Charter and the rights overridden;
may not be given retroactive effect) – these requirements are mainly formal and not
very demanding.
Dialogue theory and democracy
Is the notwithstanding clause an example of dialogue theory between the legislature and
the courts?
Does the notwithstanding clause move the dialogue more into the political realm?
If you object to the notwithstanding clause? How do you feel about the UK and Australia,
where the courts have no constitutionally entrenched bill of rights with which to strike
down statutes?
If the SCC were to strike down a statute that you favour using an interpretation of the
Charter with which you disagree (as many people would say is happening at the US
Supreme Court), would you want to have something like the notwithstanding clause that
the legislature could use to respond?
REMEDIES
1) Supremacy clause - overriding effect
Section 52(1) of the Constitution Act, 1982:
The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent
with the provisions of the Constitution is, to the extent of the inconsistency, of no force
or effect.
In other words, judges are allowed to review Canada’s laws for this purpose.
**Since the Charter is part of the Constitution of Canada, it has an overriding effect (any
law that is inconsistent with the Charter is “of no force or effect”).
S. 52(1) provides a remedy for laws that violate a Charter (or other constitutional) right
= declaration of invalidity.
2) Remedy clause - S. 24(1) of the Charter
In Part I of the Constitution Act, 1982.
Anyone whose rights and 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.
Confers a discretion to the court.
Supremacy clause v Remedy Clause
Section 24 is not an exclusive remedy, because the supremacy clause in s. 52(1) might
still apply (this is the case where the appropriate remedy is striking the legislation); s.
24(1) is needed where a remedy provided by s. 52(1) is not needed or will not provide
satisfactory redress
S. 24(1) provides a remedy for government acts that violate an individual’s Charter rights
= personal remedy.
R. v. Demers (2004)
Both remedies granted. Challenge to provisions of the criminal code relating to accused
persons who were permanently unfit to stand trial. Sections of the Criminal Code
prevented absolute discharge. People who could never stand trial were subject to
indefinite appearances before review board. SCC found the rules overbroad, declaring
them unconstitutional and granted the provisions a period of temporary validity (under s.
52). Moreover, the SCC decided that, if Parliament failed to amend the Criminal Code to
bring the impugned provisions in line with the Charter, people who were permanently
unfit to stand trial and who were not a danger to the public should have their proceedings
stayed (under s. 24).
Exclusion of evidence - Section 24(2)
“Where, in proceedings under subsection (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 the
circumstances, the admission of it in the proceedings would bring the administration
of justice into disrepute.”
Contrast this with the stronger American exclusionary rule of evidence, whereas in
Canada this is a judicial discretion.
R v Grant (SCC 2009) – set the test to see if the evidence should be
excluded
Grant attracted the attention of officers while walking in an area that was known for its
high crime rate. Officers questioned him and obstructed his movement while doing so.
Grant admitted to having a small bag of marijuana and a firearm. Grant was charged with
firearms offences.
SCC found that Grant was psychologically detained. He had been arbitrarily detained (s.
9 violation) and denied his right to counsel (s. 10(b) violation). His Charter rights had
been violated. Should the evidence obtain against him, especially the firearm, be
excluded from his trial?
GENERAL QUESTION: Would admitting the evidence bring the administration of
justice into disrepute? Three factors to be weighed:
1. Seriousness of the Charter-infringing conduct (deliberate or blatant vs acting in
good faith)
2. Impact on the Charter-protected interest of the accused (the greater the intrusion
into the accused’s right the more likely it is for the evidence to be excluded)
3. Society’s interest in an adjudication on the merits – whether the conduct calls
into question the reliability of the evidence and the importance of the evidence to
the Crown’s case
SCC allowed the admission of the evidence.

Charter infringing conduct was not deliberate or egregious,

impact on the accused’s rights was not on the most serious end of the scale, and

the evidence is itself highly reliable and essential to the case.
Attorney General of Canada v. Lavell – Indigenous women rights
The 1974 Supreme Court of Canada case Attorney General of Canada v. Lavell was a
landmark decision that helped change the Canadian constitution and fight for human
rights. The case established that the section of the Indian Act did not violate the right
to equality before the law.
The federal courts ultimately found that the Bill of Rights did not make s. 12 of the Indian
Act inoperative.
There were some mixed reactions with this decision, some viewed it as the government
and the justice system's failure to protect and uphold Indigenous women's rights and some
thought if this section was rendered inoperative, the court's could go further and strike
down the entire Indian Act.
It is generally understood that this case was a setback for Indigenous rights, however, it
also acted as a catalyst for greated Indigenous rights activism and a precursor to changed
in Canadian law, which saw the revision of the Indian Act (1985) and other changes to
discriminatory policies against Indigenous peoples.
Hunter v. Southam, 1984 - warrantless searches
Hunter v. Southam was a 1984 Supreme Court of Canada case that established that
warrantless searches are unreasonable. The case was the first time the Supreme Court
addressed the right to be free from unreasonable search and seizure.
What happened in the case?

The Director of the Combines Branch authorized civil servants to search the
offices of Southam Inc. in Edmonton.

Southam claimed that the Combines Investigation Act was incompatible with the
Canadian Charter of Rights and Freedoms.

The Supreme Court ruled that the search and seizure violated the right to
privacy.

The Court struck down the relevant provisions of the Combines Investigation
Act.
What is the significance of the case?

The case established that police must have authorization based on "reasonable
and probable grounds".

The case upheld the right to privacy against unjustified state intrusion.

The case established that the protection of section 8 of the Charter extends to
the protection of the right to privacy.
Canada (Attorney General) v. Bedford – recognition of sex worker rights
Was a 2013 Supreme Court of Canada case that struck down several prostitution-related
laws. The court ruled that these laws violated the rights of sex workers and were
unconstitutional.
The case recognized sex workers' rights and the inability of criminal prostitution laws to
protect them from violence. The case advanced the principles of fundamental justice,
which are the basic values of the Canadian Constitution.
What was the case about?

The case challenged three provisions of the Criminal Code that criminalized
activities related to prostitution. These provisions included:
o
Operating a bawdy house
o
Living off the avails of prostitution
o
Communicating for the purpose of prostitution
Why was the case important?

The case established that the Canadian government cannot pass laws that are
arbitrary, overbroad, or grossly disproportionate.

It also clarified the relationship between these principles and how they apply to
legislative decisions.
Vriend v Alberta, 1998 – gender equality – omissions can violate Charter
The case involved the dismissal of a teacher because of his sexual orientation.
The 1998 Supreme Court of Canada case Vriend v. Alberta was a landmark case that
established LGBTQ rights in Canada. The case ruled that excluding sexual orientation
from the Alberta Individual Rights Protection Act (IRPA) violated the Canadian Charter
of Rights and Freedoms.
Significance

The case established that the Charter applies to both actions and omissions by
the government.

It helped to establish that legislative omissions can be the subject of a Charter
violation.

It helped to establish that private (non-governmental) activity can be the subject
of a Charter application.

It helped to establish that courts must consider specific issues when determining
whether to "read in" an omitted portion of an Act.

It helped to put Canada at the forefront of global advancement in LGBTQ rights.

It helped to pave the way for other changes to Canadian laws, including adoption
rights and same-sex marriage
Topic 8 – Freedom of Expression
Constitution Act, 1982 s. 2(b):
Fundamental Freedoms
2. Everyone has the following fundamental freedoms:
--(b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication.
Reasons for protecting expression
What is the rationale for a guarantee of freedom of expression?
In Irwin Toy v. Quebec (1989) the SCC embraced all of the 3 reasons or protecting
freedom of expression, which they summarized in the following terms: “(1) seeking and
attaining the truth is inherently good activity; (2) participation in social and political
decision-making is to be fostered and encouraged; and (3) the diversity of forms of
individual self-fulfillment and human flourish ought to be cultivated:
1) Instrument of democratic government
Perhaps the most powerful rationale for the constitutional protection of freedom of
expression is its role as an instrument of democratic government (Switzman v. Elbling
(1957)).
It is obvious that political speech is at the core of s. 2(b) of the Charter, and could be
curtailed under s. 1 only in service of the most compelling governmental interests.
2) Instrument of truth: Marketplace of ideas
A second, broader rationale for the constitutional protection of freedom is its role as an
instrument of truth. John Stuart Mill in his essay On Liberty (1859) argued that the
suppression of opinion was wrong because it is only by the collision of adverse opinions
that truth is discovered or confirmed.
This “marketplace of ideas” rationale for freedom of expression would include political
speech, of course, and also philosophy, history, social sciences, natural sciences,
medicine.
3) Instrument of personal fulfillment (R. v Sharpe (2001))
The third, even broader, rationale is the role of freedom of expression as an instrument
for personal fulfillment, to allow personal growth and self-realization. This rationale
includes art, music, dance – even child pornography? See R. v. Sharpe (2001).
In R. v. Sharpe (2001) there was a constitutional challenge to Criminal Code offence of
possession of child pornography. The SCC Accepted that child pornography would
qualify for s. 2(b) protections. However, the Court acknowledged that child pornography
made no contribution to democratic government or search for truth but accepted its role
as an instrument of personal fulfilment.
Structure of analysis
Charter Analysis of freedom of expression
Freedom of expression is not absolute because section 2(b) of the Charter is subject to s.
1 (of course), which means that a law that limits freedom of expression will be valid under
s. 1 if it comes within the s. 1 framework: “such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society”.
Charter analysis has two main stages:
1. Does the law (or action) limit freedom of expression? If yes,
2. Does the law satisfy the standards of justification under s. 1 (i.e., is the law
saved by s. 1)?
Note that most freedom of expression cases are resolved at stage 2 of the analysis (s. 1)
Positive claims vs. Negative Claims
*“The traditional view…is that the freedom of expression contained in s. 2(b) prohibits
gags, but does not compel the distribution of megaphones” (L'Heureux-Dubé, Haig v.
Canada SCC 1993).
Recall Isaiah Berlin: distinction between negative liberty and positive liberty

Negative
Liberty:
freedom
from
restrictions
“I am normally said to be free to the degree to which no man or body of men
interferes with my activity”

Positive Liberty: “freedom as effective power to act or to pursue one’s ends”
(Courtland reading)
Baier v. Alberta (SCC 2007)
It was the case that restricted school employees from running for the position of
school board trustee. And from the decision the SCC said:

Negative claim about freedom of expression: “freedom from government
legislation or action suppressing an expressive activity in which people would
otherwise be free to engage” (para 35)

Positive claim about freedom of expression: “claim the government must
legislate or otherwise act to support or enable an expressive activity” (para 35)
Negative claims (Irwin Toy test)
Irwin Toy Ltd. v. Quebec (Attorney General) (1989)
Case about restrictions on advertising towards children.
Irwin Toy Test
1. Does the activity in question fall within the sphere of activity protected by s. 2(b).
i.
Does the activity have expressive content? I.e., does it convey, or attempt
to convey, meaning?
ii.
If the activity has expressive content, does the method or form of the
expressive
activity
remove
the
protection
of
s.
2(b)?
E.g., violence/threats of violence, private property, infringement of
copyright (maybe?), private space (even if publicly owned?)
 If yes, then no breach of freedom of expression rights. If no, then
move to next question.
2. Does the restriction on the expressive activity infringe s. 2(b) in either purpose
or effect?
i.
Restrictions in purpose target the content or substance of the expressive
activity
ii.
Restrictions in effect can be found if the law restricts expression that
promotes the rationales for protecting free expression: democratic
discourse, truth-seeking, or self-fulfillment
Positive Claims (Baier Test)
Baier Test (as refined in Toronto (City) v. Ontario (Attorney General) (SCC 2021))
Baier Test is engaged “where a government defending a Charter challenge alleges, or a
Charter claimant concedes, that a positive rights claim is being made under s. 2(b)” Baier
para 30).
1. Does the activity for which the claimant seeks s. 2(b) protection involve a form
of expression?
2. If yes to 1, is the claimant making a negative claim or a positive claim?
 If negative claim is being made, then proceed under the Irwin Toy Test.
 If positive claim is being made, then proceed to step 3 of the Baier Test.
3. If a positive claim is involved, has the government either substantially interfered
in effect with freedom of expression, or had the purpose of interfering with
freedom of expression?
Hogg (as of 2024): “No positive claim under s. 2(b) has succeeded in the Court to date”.
-to understand the Irwin Toy Test
Meaning of expression
Definition: convey meaning
The SCC has defined “expression” in these terms: “Activity is expressive if it attempts
to convey meaning.” The Court gave a generous interpretation to the term “expression”,
which includes a wide array of things (art, choice of language (including in commercial
speech), even parking a car if done with expressive purpose such as protesting parking
regulations.
Criminal expression – Prostitution Reference (1990)
“Expression” that is also a crime is protected under freedom of expression.
For example, communicating for the purposes of prostitution which is a crime under the
Criminal Code. Should this kind of expression be protected expression under s. 2(b)?
Yes, Prostitution Reference (1990). Lamer J concurring judgment – an activity should
not be denied s. 2(b) protections merely because it has been criminalized. To conclude
otherwise would be to pre-empt Charter analysis.
Violence
Expressive activity that takes the form of violence is not protected by s. 2(b), “a
murderer or a rapist cannot invoke freedom of expression in justification of the form of
expression he has chosen.”
This also includes threats of violence because it makes little sense to exclude acts of
violence from the ambit of s. 2(b), but to confer protection on threats of violence. Neither
are worthy of protection (R. v. Khawaja (2012)).
Depictions of violence – certainly protected by s. 2(b) but could be limited under s. 1
Content neutrality
The definition of “expression” is governed by the principle of content neutrality. The
content of a statement cannot deprive it of the protection accorded by s. 2(b), no matter
how offensive it may be.
The principle of content neutrality means that s. 2(b) extends to much activity that
is not worthy of constitutional protection. The evaluation of worthiness of the
expression is however relevant only to the s. 1 inquiry.
If the content of the expression matters in terms of whether it will be protected, it defeats
the purpose of protecting expression.
The meaning of expression cannot even be narrowed by other provisions of the Charter,
such as s. 15 (equality) or s. 27 (multiculturalism).
Hate speech is protected speech (see R. v. Keegstra (1990)).
S. 2(b) protection extends to deliberate falsehoods. Truth or falsity of a statement can be
determined only by reference to its content, which violates the principle of content
neutrality:

Holocaust denials (see R. v. Zundel (1992)), false news law struck down

False, misleading and deceptive tobacco advertising (Canada v. JTI-Macdonald
Corp. (2007)) protected by s. 2(b) but law upheld under s. 1
But, according to the SCC, “not all expression is equally worthy of protection”. This
becomes relevant only at the s. 1 stage of the analysis
R. v. Keegstra (1990) - hate
The SCC held that the promotion of hatred against Jews and another racial group, which
is a Criminal Code offence, is protected by s. 2(b).
The fact that the Criminal Code provision was attempting to vindicate values reflected in
ss. 15 (equality) and 27 (multiculturalism) was relevant only to the s. 1 inquiry.
R. v. Zundel (1992) – fake news
The SCC struck down the false-news provision of the Criminal Code. Zundel had
published a pamphlet denying that the Holocaust occurred. The SCC reversed the
conviction on the ground that the law was unconstitutional and the principle of contentneutrality dictated the decision.
Content neutrality and Section 1
High / low value of expression

Strict s. 1 analysis where expression at the core of s. 2(b)

Relaxed s. 1 analysis where expression is not closely linked to rationales
underlying s. 2(b)

See hate speech cases
Role of the State: “singular antagonist” or protector

Strict s. 1 analysis where state is the singular antagonist (e.g., restrictions on legal
rights, ss. 7-14)

Relaxed s. 1 analysis where state acts as protector, which is the case where the
state:
-
(i) makes decisions about competing interests
-
(ii) decides how to allocate scarce resources
-
(iii) intervenes to protect vulnerable parties
Ways of limiting expression
Prior restraint
The restriction that is usually regarded as the most severe is a “prior restraint” on
publication because the expression that is never published cannot contribute in any way
to the democratic process, to the marketplace of ideas or to personal fulfillment.
Border control
The importation of certain materials; type of prior restraint with border officials serving
as censors).
Little Sisters Book and Art Emporium v. Canada (2000) (LGBT erotica was seized and
delayed at border as obscene material; law upheld but implementation of law had to be
changed.
Penal prohibition
The most common restriction on speech is a prohibition coupled with a penal sanction,
for example making perjury or counselling suicide a criminal offence.
Prior restraint to the extent that it deters speech but punishment when speech not deterred
Prohibition against discrimination under a human rights statute
Can lead to an order from a court, the violation of which could lead to a penalty, e.g.,
Canada v Taylor (1990), case about antisemitic messages over telephone.
Civil prohibition
Examples: tort of defamation, breach of confidentiality agreements)
Does not create penal sanction; allows for other civil remedies such as damages or
injunction.
Not possible to challenge common law civil obligation using Charter because Charter
does not apply to common law regulating disputes between private parties; though note
that courts do attempt to develop the common law in a way that aligns with the Charter.
Possible to challenge civil obligation using Charter if obligation is created by statute.
Forced expression
Examples:
i.
in advertising: packaging requirements (cigarettes): RJR-Macdonald v. Canada
(1995): the SCC held that a federal statute obligating warnings on cigarettes
packages was a breach of s. 2(b).
ii.
an adjudicator forcing an employer to write a letter of reference for an unjustly
dismissed employee (Slaight Communications v Davidson); oath-taking etc.);
iii.
Payment of union dues do not violate s. 2(b), even though union may support
political causes (Lavigne v OPSEU (1991);
iv.
Oath to the monarch as part of citizenship ceremony not violation of s. 2(b)
(McAteer v Canada). ONCA and Hogg provide account of oath that reframes
meaning of oath’s content. Is this a legitimate way of assessing s. 2(b) violation?
Language requirement – Ford v. Quebec (1988)
Language requirements (i.e., sign laws in Quebec)
Requirement of French only violation of s. 2(b) and could not be upheld under s. 1.
Quebec invoked notwithstanding clause.
Requirement of French (without prohibiting use of other languages) was also violation of
s. 2(b) but could be upheld under s. 1.
Time, manner and place of expression
The last severe form of restriction on expression is the regulation of time, manner and
place of expression, because they do not regulate the content of expression. So, a court
would be likely to upheld the laws under s. 1.
Examples: restrictions on right to protest, time or route of a parade.
Restrictions can amount to significant limitation of expression (e.g., municipal by-law
prohibiting posters anywhere on municipal property (Ramsden v Peterborough (1993),
by-law struck down; narrower restrictions on postering may have been permitted).
Postering likely to be used for political speech by poorly funded groups.
--
Applying the analysis
I) Commercial expression
Protection of commercial expression
“Commercial expression”, of which the most important example is advertising, is
expression that is designed to promote the sale of goods and services.
There are three reasons why commercial expression ought to be protected under a
guarantee of freedom of expression:
i.
literally fall within the meaning of the word “expression”;
ii.
contributes to the “marketplace of ideas”;
iii.
it is very difficult to distinguish commercial speech from other speech, such as
political, economical speech.
However, it is subject to much regulation because of the public need to forbid false or
misleading claims, to require warnings of danger, for the purposes of disclosure (i.e., food
ingredients).
Language requirements – Ford v. Quebec (1988)
The first case to reach the Court regarding commercial expression and the SCC held that
a Quebec law requiring commercial signs to be in French only was unconstitutional. The
SCC held that the language-of-signs law violated s. 2(b) by prohibiting signs in the
English language and held that the law could not be justified under s. 1, because,
although it pursued an important purpose (the protection of the French language), it
impaired the rights of English-speakers more than was necessary to accomplish the
purpose. A requirement that French was predominant would have been “reasonable
limit” under s. 1.
Advertising restrictions
Irwin Toy v. Quebec (1989)
In Irwin Toy the Court upheld a Quebec law that prohibited all commercial advertising
directed at children under 13 years of age. The protection of a particularly vulnerable
group (young children) was sufficiently important purpose. Morevoer, the ban was not
absolute because the products such toys and breakfast cereals could still be advertised,
provided the advertising did not use cartoons and other techniques directed at children.
RJR-MacDonald v. Canada (1995)
The SCC held that the federal prohibition on advertising cigarettes (a legal product)
violated s. 2(b) and could not be upheld under s. 1 because complete ban was not least
restrictive means (Oakes test).
Federal government created more narrow and precisely defined law which was later
upheld in Canada v JTI-Macdonald Corp (2007) because the new act was more restrained
and nuance than its predecessor.
Signs - R. v. Guignard (2002)
Quebec by-law prohibited advertising signs and billboards except in industrial zones and
the case involved a protest sign against an insurance company on a person’s lawn –
infringed s. 2(b) and not saved by s. 1.
Prostitution - Prostitution Reference (1990)
Prostitution is lawful in Canada but the Criminal Code made it an offence to communicate
in public for the purposes of engaging in prostitution – infringed s. 2(b) but saved by s. 1
(note that the law was struck down later in Canada v. Bedford (2013), but on the basis of
s. 7, not s. 2(b)).
II) Picketing
Picketing is the activity of members of a trade union on strike, who will assemble outside
a workplace, often carrying signs. There is a communicative element to a picketing, and
therefore it constitutes “expression” within s. 2(b) of the Charter.
Picketing probably best described as a kind of commercial speech but also has political
elements
Dolphin Delivery (1986)
Court injunction prohibiting members of a union from picketing a workplace of a firm
that was not their employer (“secondary picketing”). The court in B.C. found it to be a
tort (an inducement to breach of contract) and the injunction was issued to stop the tort –
was this a breach of s. 2(b)?
The SCC held that the Charter had no place between private parties but, in obiter, the
expression element of picketing was affirmed (though the prohibition against secondary
picketing would be saved by s. 1 to prevent the spread of industrial conflict).
III) Hate propaganda
Hate propaganda is material that promotes hatred against minority groups.
Hate propaganda is prohibited by the Criminal Code, which makes it an offence to
wilfully promote hatred against “any section of the public distinguished by colour, race,
religion or ethnic origin.”. The purpose of the ban is to promote the value of equality
because the effect of hate propaganda is to reinforce the malign attitudes towards
minorities that are important barriers to the achievement of equality.
R. v. Keegstra (1990) – hate propaganda
Schoolteacher who made anti-Semitic statements to his students and charged under the
Criminal Code. The Court found a breach of s. 2(b) and rejected the claim that there was
a content-based restriction because law applied to all hateful messages, whether popular
or unpopular with mainstream. Court rejected claim that s. 2(b) could be narrowed by
reference to s. 15 equality rights
However, the SCC held the Criminal Code provision that was saved by s. 1 (4-3
majority). Law was specifically directed at the promotion of hate against identifiable
groups.
R. v. Zundel (1992) – false news
There is a crime in the Criminal Code of “spreading false news”.
In this case, Zundel published a pamphlet published denying the Holocaust. The Court
found violation of s. 2(b). Doctrine of content-neutrality protects falsehoods and truths
Criminal Code provision could not be saved by s. 1. Law did not specify particular
type of statement prohibited or injury to the public interest that was contemplated. Law
was so broad that it was difficult to identify objective that would justify limitation of
expression.
Saskatchewan v. Whatcott (2013) – hate propaganda - severance
Claimant distributed four flyers containing messages that condemned homosexuality.
A tribunal issued an order preventing the claimant from distributing the flyers based on
the Human Rights Code which prohibited publication 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 based on a prohibited ground”
The SCC found that the provision was a limit on freedom of expression. Was it saved by
section 1? Partially!
SCC severed the words “ridicules, belittles, or otherwise affronts the dignity” and left
in reference to “hatred”. If the provision was restricted to hate speech, then it was saved
by s. 1.
Otherwise, it would not have been rationally connected to the objective of prohibiting
discrimination and would have failed on minimal impairment due to overbreadth.
Not necessary for the government to prove actual harm. Court can take judicial notice
that there was reasonable apprehension of harm from hate speech
IV) Defamation
Hill v. Church of Scientology (1995)
Crown attorney brought an action for defamation against the Church of Scientology and
its lawyer who, in a press conference, had falsely claimed that the plaintiff misled a judge
and breached a court order sealing documents belonging to the Church of Scientology.
The SCC held that false and injurious statements were outside the core values
protected by s. 2(b) and were not deserving of much protection,\.
Law of defamation was not unduly restrictive and did not require modification to conform
with Charter values.
Grant v. Torstar Corp. (2009) – test for responsible communication
Case about a landowner who wanted to expand a golf course on his lakefront property.
Newspaper reported on concerns, including on the plaintiff’s political influence on the
government.
Action against Toronto Star newspaper for the article was successful at trial but
overturned by SCC.
Defence of “responsible communication on matters of public interest” which
modified law on defamation (which had previously only recognized truth as a defence);
overturned Hill on the issue of whether defamatory statements were outside the core
values protected by s. 2(b).
Defence of responsible communication
From Grant v. Torstar Corp. (2009), SCC held that there are two elements to the defence
of “responsible communication” (a defence that can be used by journalists and nonjournalists):
i.
public interest: the publication must be on a matter of “public interest”, which is
for the judge to decide; not confined to political matters or to public figures; and
ii.
responsible: the publication must be “responsible” (i.e., where the publisher
exercised due diligence in trying to verify the defamatory allegation), which is for
the jury to decide.
Due diligence depends on the circumstances, such as: seriousness of the
allegation, the public importance of the matter, its urgency, the status and
reliability of the source of information, whether the plaintiff’s side was
accurately reported. No factor is dispositive but the last factor is particularly
important.
V) Pornography
Shift in approach to regulating pornography from focus on protecting public morality to
preventing depictions that reinforce discrimination against women (feminist
perspective—liberal feminism? radical feminism?)
Pornography is protected by s. 2(b), can only be identified by its content
R. v. Butler (1992) – definition of obscenity
Accused operated a sex shop and was found guilty of various charges of selling obscene
material and possessing obscene material for sale which was prohibited under the
Criminal Code.
The SCC held that the prohibition of obscenity offended s. 2(b) of the Charter because
there should be no content-based restrictions on expression. However, the Criminal Code
provision was saved by s. 1 because the obscenity rules dealt with material that was
“perceived by public opinion to be harmful to society, particularly to women”.
R. v. Sharpe (2001) – child pornography
Accused challenged the constitutionality of the Criminal Code offence of possession of
child pornography (and raised the issue of fictional stories written by the accused); the
SCC held that the offence was a limit on s. 2(b) but was upheld under s. 1.
Court held that possession of child pornography constituted harm to children by
creating a market for the production of child pornography, facilitating seduction and
grooming of children, and breaking down inhibitions against committing offences
related to children.
VI) Access to public property
S. 2(b) confers no general right to use private property as a forum of expression
because the Charter does not apply to private action.
Issue: does s. 2(b) confer a right to use public property as a forum of expression?
Montreal v. 2952-1366 Quebec (2005) – test for public property
A strip club in Montreal set up a loudspeaker at its street entrance to broadcast what was
happening in the club; the club was charged with noise violations under a city by-law that
prohibited noise produced by sound equipment that could be heard outside a building
Issue: was the by-law contrary to s. 2(b) of the Charter? (the noise originated on private
property, but was transmitted onto a public street which was prohibited by the by-law);
in other words, did s. 2(b) protect expression that was transmitted into a public street?
Streets are an area in which expression of many kinds has long been accepted. Broadcast
of sound into street was protected by s. 2(b), but by-law was justified as a reasonable limit
under s. 1.
The SCC created a test for the application of s. 2(b) on public property:
Is it a public place where one would expect constitutional protection for expression on
the basis that expression in the place does not conflict with the purposes of s. 2(b), namely,
democratic discourse, truth finding, and self-fulfillment?
To answer this question, the following factors should be considered:
i.
function: the historical or actual function of the place; and
ii.
other aspects: whether other aspects of the place suggest that expression within it
would undermine the values underlying free expression
Greater Vancouver Transportation Authority v. Canadian Federation of Students (2009)
Case about advertising on sides of buses, prohibition of political messages in these
advertisements. Buses were not historically used for expression, but now were. Political
advertising was compatible with function of bus as a vehicle for public transportation.
Restriction on political messaging was therefore a violation of s. 2(b) and also could
not be justified under s. 1.
VII) Access to courts
A) General principles
Open court principle: principle that judicial proceedings should be administered in public,
because publicity provides securities against abuse by the courts. The open court
principle also has important connections with freedom of expression and freedom of the
press.
Open court principle can come into tension (or even conflict with) other important
concerns such as:

Privacy – especially in family law cases, or sexual offences (in which the
complainant may request that the name of the accused not be published)

Safety and Security – of witnesses, victims, and even the accused. All may be
subject to danger or retaliation.

Impact on Fair Trials – publication can make it difficult to impanel an impartial
jury.

Commercial and Trade Secrets – in civil trials, especially those involving
intellectual property, rules must be carefully designed to prevent the revelation of
such information.

National Security and Classified Information – Crown privilege.
B) Restrictions on reporting
Issue: when does freedom of the press come into conflict with the right of accused persons
to receive a fair trial?
The press has a right to report on court proceedings, but concerns about: pre-trial publicity
biasing a jury, publicity damaging the reputation of someone who is exonerated,
discouraging someone from commencing legal proceedings (especially due to privacy or
embarrassment concerns), drawing courts into political disputes, and damaging public
perceptions of the courts
Canadian Newspapers Co. v. Canada (1988):
The SCC upheld Criminal Code provision mandating a ban on the publication of
complainant’s name in sexual offence cases where requested by the complainant or the
prosecutor.
Edmonton Journal v. Alberta (1989)
The SCC struck down Alberta statute prohibiting (with limited exceptions) press reports
of matrimonial litigation.
Toronto Star Newspapers (2010)
The SCC upheld accused’s entitlement to automatic publication ban of bail hearing
Concern that evidence introduced in a bail hearing is focused on the character of the
accused, may include evidence that would be prejudicial or inadmissible at trial (such as
previous convictions and post-offence conduct).
Publication ban was discretionary if requested by prosecution and mandatory if requested
by accused. Both rules were upheld.
Dagenais v. CBC (1994) – catholic priests
Injunction prohibiting the CBC from broadcasting a TV program called “the Boys of St
Vincent” (fictional program about abuse by Catholic priests) while Catholic priests were
on trial; SCC struck down injunction (infringement of s. 2(b) not saved by s. 1).
Less restrictive means were available for the protection of a fair trial: adjourning trials,
changing venues, sequestering jurors, allowing challenges to the empanelment of jurors,
providing strong judicial direction to jurors.
Dissent argued that the only effect of the injunction was a delay in publication, which was
not a great of a limit on the value of a fictional program
R. v. Mentuck (2001) – undercover police
“Mr. Big” operation by undercover police officers; police wanted the trial to be under a
publication ban to protect ongoing undercover operations.
Publication ban not upheld by SCC with respect to undercover operations (but yes
for undercover officer identities). SCC held that the Crown had to establish a “serious
risk to the proper administration of justice” and that “reasonable alternative measures will
not prevent risk” (minimal impairment); the Crown failed to establish this for the
undercover operations / police methods.
Dagenais/Mentuck Test – publication ban
This test is used by the court to decide whether to implement restriction on court openness
(e.g., a publication ban). Assess whether:
i.
“the particular restriction on court openness is necessary to prevent a serious risk
to an important interest because reasonably alternative measures will not prevent
the risk”; and
ii.
“the salutary effects of the restriction outweigh its deleterious effects, including
the effects on the right to free expression”.
Note: the test can be modified to fit the context and particular order restricting publication.
The Dagenais/Mentuck Test was restated/reformulated in Sherman Estate v Donovan
(SCC 2021); case about probate files of Bernard and Honey Sherman.
A court may order discretionary limits on openness only if:
i.
“court openness poses a serious risk to an important public interest;
ii.
the order sought is necessary to prevent this serious risk to the identified interest
because reasonably alternative measures will not prevent this risk; and,
iii.
as a matter of proportionality, the benefits of the order outweigh its negative
effects” (para 38).
-
C) Restrictions on access to Courts
Issue: freedom of the press also includes the right of the press and the public to be present
in the court
Re Southam and the Queen (No. 1) (1983)
Ontario Court of Appeal considered the Juvenile Delinquents Act, which provided that
trials of children would be closed to the press and the general public.
The court found that the absolute ban was a restriction of s. 2(b) and could not be saved
by s. 1.
The law was eventually changed (replaced by the Young Offenders Act, which has itself
been replaced by the Youth Criminal Justice Act) to allow hearings to be open subject to
judicial discretion to close the hearing (and the discretionary provision was upheld under
s. 1 in a subsequent case, Re Southam and the Queen (No. 2) (1986))
VIII) Access to Legislative Assembly
Issue: television cameras in a legislative chamber
New Brunswick Broadcasting Co. v. Nova Scotia (1993)
SCC upheld the ban on television cameras in a legislative chamber based on
parliamentary privilege.
Note that this was not a Charter case, even though one dissenting judge would have held
that the Charter applied and that s. 2(b) conferred a right of access to a legislative
assembly on the press and other media; the majority denied that the Charter applied at all
IX) Public Service
Issue: restrictions on public servants engaging in partisan political activities – is this a
breach of s. 2(b)?
The underlying principle is the pursuit of political neutrality
Osborne v. Canada (1991)
The SCC held that the Public Service Employment Act which prohibited federal public
servants from engaging in work for or against a candidate for election to Parliament etc.
was a limit to the freedom of expression under s. 2(b) and was not saved by s. 1 (overinclusive so failed the least-drastic part of the Oakes test).
X) Access to government – positive rights
Issue: Positive rights
Native Women’s Assn. of Canada v. Canada (1994)
Funding for some aboriginal organizations but not to the NWAC. Other aboriginal
organizations, but not NWAC, invited to participate in discussions that eventually led to
proposal in the Charlottetown Accord.
Was this a limit on freedom of expression? The SCC held that s. 2(b) does not impose
a positive duty on government to fund or ensure everyone has the same “platform
of expression”. Government not allowed to provide funding or access in a way that
violated s. 15 but this did not require the government to seek advice and input from every
organization or every point of view.
Baier v. Alberta (2007)
The SCC held that access to a “statutory platform” not protected under s. 2(b)
Case was about teachers being prevented from being school trustees. Some teachers who
had been elected to these roles would have been disqualified from being trustees under
new law.
Court distinguished between right to express opinion about management of the school
board and actually serving in a management role on the school board.
XI) Access to government documents
Issue: exemptions in freedom of information legislation
Ontario v. Criminal Lawyers’ Association (2010)
Section 2(b) “guarantees freedom of expression, but it does not guarantee access to all
documents in government hands. Access to documents in government hands is
constitutionally protected only where it is shown to be a necessary precondition of
meaningful expression, does not encroach on protected privileges, and is compatible with
the function of the institution concerned.”.
Access to information may thus be a derivative right of s. 2(b) and governments may not
be completely free to repeal access to information laws.
Topic 16 – Freedom of Conscience and Religion
Constitution Act, 1982, s. 2(a)
2. Everyone has the following fundamental freedoms:
--(a) freedom of conscience and religion.
Distribution of powers
Does the power to enact laws in relation to religion reside with the federal Parliament or
the provincial Legislatures?

criminal matter (i.e., Sunday observance laws): federal Parliament (Big M Drug
Mart (SCC 1985))
However, we should recall that provincial Legislatures could enact Sunday
closing laws for the secular purpose of a retail pause for workers, as an element
of “property and civil rights” (R. v. Edward Books (1986));

solemnization of marriages: power over the solemnization of marriages (which
can have a religious dimension): provincial Legislatures (s. 92(12));

education: including the establishment of denominational schools under s. 93(3):
provincial Legislatures
Freedom of conscience
Definition
What is freedom of “conscience”?
Protects systems of belief which are not theocentric and which might not be characterized
as religion (including non-belief, atheism and agnosticism). Often focused on strongly
held moral views.
R. v. Morgentaler (1988) - abortion
SCC held that the regulation of abortion was a denial of freedom of conscience, defined
as “personal morality which is not founded in religion” and as “conscientious beliefs
which are not religiously motivated”.
Mouvement laïque québécois v. Saguenay (2015)
The SCC struck down the municipal practice (in a by-law) of Mayor saying a prayer to
God at the beginning of council proceedings. The claimant was an atheist that invoked
freedom of conscience and religion to object to a municipal council’s practice later
formalized by by-law, of the Mayor saying a prayer to Go at the beginning of council’s
proceedings.
This decision does not limit prayer in Parliament or provincial legislatures. - Ontario
(Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission), 2001 (ON
CA), case in which plaintiff challenged the reading of the Lord’s Prayer at the beginning
of each legislative session. The challenge to the prayer was brought under provincial
human rights code. The speaker of the legislature asserted parliamentary privilege,
arguing that the legislature’s decision about the prayer was immune from examination by
the courts or quasi-judicial bodies like the Human Rights Commission. ON CA agreed.
Freedom of Religion
Definition - Syndicat Northcrest v. Amselem (2004)
“Defined broadly, religion typically involves a particular and comprehensive system
of faith and worship. Religion also tends to involve the belief in a divine,
superhuman or controlling power. In essence, religion is about freely and deeply held
personal convictions or beliefs connected to an individual’s spiritual faith and
integrally linked to one’s self-definition and spiritual fulfillment, the practices of
which allow individuals to foster a connection with the divine or with the subject or object
of that spiritual faith.”
Structure of Analysis
Two stages of Charter analysis:
i.
Does the law (or action) limit freedom of conscience or religion (AMSELEM)? If
yes,
ii.
Does the law satisfy the standards of justification under s. 1 (i.e., is the law saved
by s. 1)?
Syndicat Northcrest v. Amselem, 2004 – definition of protected beliefs
Condominium owners who were orthodox Jews claimed the right to build temporary
dwellings (succahs) on the balconies of their condo apartments where they would live for
a nine-day period each year for the festival of Succot. The condo by-laws prohibited
constructions of any kind on the balconies
This case (between private parties) was brought under the Quebec Charter of Human
Rights and Freedoms. This case is still relevant to the Canadian Charter of Rights and
Freedoms because the court said in this case that freedom of religion has the same
meaning in the Quebec Charter and in the Canadian Charter.
SCC held the claimants had the right to erect the buildings on their balconies and defined
protected religious practices in very broad terms (subjective test):
i.
The practice need not be part of an established belief system
ii.
The practice need not even be a belief system shared by others (it can be unique
to the claimant)
iii.
All that was required was that the claimant “sincerely believe” that the practice
was of “religious significance”. Inquiry into sincerity of belief was to be “as
limited as possible”. Did not matter that claimants had not attempted to build
succahs in the past.
The test was wholly subjective. Dissent emphasized collective and public elements of
religion (which they argued makes precepts susceptible to objective proof), as well as fact
that claimants had chosen to purchase condominium with this restriction on balconies.
Amselem Test
An infringement of s.2(a) will be established where:
1) Claimant has a sincere practice or belief, having a nexus with religion
This calls for a particular line of conduct, either by being objectively or subjectively
obligatory or customary, or by, in general, subjectively engendering a personal
connection with the divine or with the subject or object of an individual’s spiritual faith,
irrespective of whether a particular practice or belief is required by official religious
dogma or is in conformity with the position of religious officials”
i.
Practice or belief in issue must have a nexus with religion
o Broad definition
o Wholly subjective (enough if personally felt connection with religion)
ii.
Belief must be sincere
o Limited inquiry: it is not necessary expert evidence
o Past practice is not always relevant (can change your mind / beliefs – see
Syndicat Northcrest v. Amselem)
2) More than trivial/insubstantial interference
A) Measure/provision at issue interferes with the claimant’s ability to act in accordance
with his or her religious beliefs in a manner that is more than trivial or insubstantial.
The interference is trivial or insubstantial when it “does not threaten actual religious belief
or conduct” (Hutterian Brethren, SCC 2009, para 32):

May include laws that marginally increase cost of religious practice.

Oath to the monarch as part of citizenship ceremony also held to be trivial
interference on religious beliefs of non-Anglicans since the oath was characterized
as being secular
B) Requires objective proof (balance of probabilities) of interference with religious
practice or belief:

S.L. v. Commission scolaire des Chenes (SCC 2012) – Case about parents who
objected to having their child enrolled in a course that taught about various world
religions in a neutral way (without giving preference to Catholicism). Parents
were not able to show objectively that having to take this course constituted more
than a trivial or insubstantial infringement.
Applying the analysis
Sunday Observance: Early cases
R. v. Big M Drug Mart (1985)
SCC struck down the Lord’s Day Act, a federal statute largely prohibiting commercial
activity on Sunday.
The majority of the SCC defined freedom of religion as follows:
“The essence of the concept of freedom of religion is the right to entertain such
religious beliefs as a person chooses, the right to declare religious belief openly and
without fear or hindrance or reprisal, and the right to manifest religious belief by worship
and practice or by teaching and dissemination.”
Protects religious practices as well as religious beliefs.
The SCC found that the purpose of the Lord’s Day Act (prohibiting commercial activity
on Sunday) was “to compel observance of the Christian Sabbath” and this purpose
was not compatible with s. 2(a) of the Charter.
R. v. Edward Books and Art (1986)
Ontario’s Retail Business Holidays Act prohibited commercial activity on Sundays, but
the purpose was secular: providing a common pause day for retail workers - However,
the SCC found it still infringed s. 2(a) because the effect was to impose an economic
burden on those retailers who observed a sabbath day other than Sunday (note that the
law was upheld under s. 1 of the Charter).
Peel v. Great Atlantic and Pacific Co. (1991)
Amended Act expanding the scope of the Sabbatarian exemption to people who closed
stores on other days of the week (beyond just Sunday or Saturday) upheld as not even
infringing s. 2(a) (so no need to look to s. 1)
Religion and Health of a child
B.(R.) v. Children’s Aid Society (1995)
Majority of the SCC found that the decision of parents to prohibit doctors from giving a
blood transfusion to their baby daughter was protected by freedom of religion, because
it was dictated by their beliefs as Jehovah’s Witnesses (but saved by s. 1). Dissent: there
are intrinsic limits on freedom of religion (i.e., where the health, safety and / or life of the
child at stake).
A.C. v. Manitoba (2009)
Case involving 14-year-old girl who had internal bleeding requiring a blood transfusion.
She refused the blood transfusion because of her religious beliefs as a Jehovah’s Witness.
Majority of SCC held that the power to override wishes of child under 16 on a matter
of religious belief does not violate s 2(a) because religious convictions and child’s
wishes are taken into account under the (flexible) best-interests of the child standard.
Increased weight was to be given to the child’s wishes as age, maturity, and independence
increased.
Religion & Hate Speech/Damaging Practices
Freedom of religion to be given a broad interpretation, unlimited by consideration of
the alleged impact of an allegedly religious practice on the rights of other people.
No internal limitation of the right other than violence or threats of violence.
How broad is the right? Recall Syndicat Northcrest v. Amselem case.
Ross v. New Brunswick School District No 15 (1996) – jewish conspiracy
Schoolteacher who publicly disseminated the opinion that Christian civilization was
being destroyed by an international Jewish conspiracy.
SCC found that this activity was protected by s. 2(a) (but his removal as a teacher
justified under s. 1; removal from non-teaching role not justified).
Saskatchewan v. Whatcott (2013) – flyers condemning homosexuality
The issue was distributing flyers condemning homosexuality, which was found to violate
Saskatchewan’s Human Rights Code. Whatcott cited his religious belief in favour of his
practice of condemning homosexuality. From there simple assertion of religious belief,
the court found that his rights under s. 2(a) protected his right to distribute the flyers.
Prohibition specifically on hate speech was justified under s. 1.
Religion & Fair Trial Rights
R. v. N.S. (2012) – sexual assault complainant jihab
Can a sexual assault complainant wear a niqab (veil covering the face except for the eyes)
while testifying during a sexual assault case?
Freedom of religion s. 2(a) vs. the right to make full answer and defence s. 7 and 11(d)
(“right to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunal”)
Majority: just and proportionate balance must be struck between freedom of religion and
trial fairness, following Dagenais/Mentuck approach (recall these cases about freedom of
expression vs. trial fairness) – the trial judge decides.
Four questions to apply the Dagenais/Mentuck framework: (para 9)
i.
Would requiring the witness to remove the niqab while testifying interfere with
her religious freedom?
ii.
Would permitting the witness to wear the niqab while testifying create a serious
risk to trial fairness?
iii.
Is there a way to accommodate both rights and avoid the conflict between them?
iv.
If no accommodation is possible, do the salutary effects of requiring the witness
to remove the niqab outweigh the deleterious effects of doing so?
Relevant considerations include importance of the practice to the complainant; expert
evidence regarding importance of seeing a witness’s face; broader societal harms
(including the reluctance of Muslim women to report sexual assault)
Section 1 cases
Multani v. Commission scolaire Marguerite-Bourgeoys (2006) – ceremonial dagger
Can a 13 year old Sikh boy wear a kirpan (ceremonial dagger) to public school in the face
of a school board regulation that prohibited weapons?
SCC applied Amselem and held that the regulation infringed the student’s freedom of
religion based on the student’s sincere belief that it was required by his religion
Not saved by s. 1; wholesale weapons ban failed on minimal impairment. SCC ordered
school to permit the kirpan in a wooden sheath and sewn into the student’s clothing so
that it could not be easily removed.
Alberta v. Hutterian Brethren of Wilson Colony (2009)
A colony of the Hutterian Brethren sought an exemption from the requirement of a
driver’s licence photo on religious grounds because the Hutterian do not believe in having
their photo taken.
SCC held that the Hutterian Brethren had a sincere religious belief that prohibited photo
taking and the belief was protected by s. 2(a) of the Charter.
However, the photo requirement was justified under s. 1. The SCC held that the photo
requirement served an important purpose and did not impose a severe burden on the
claimants as they could use other means of transport.
Polygamy Reference (2011)
Whether the prohibition of polygamy in the federal Criminal Code was applicable to the
sect of the community of Bountiful in BC. British Columbia Supreme Court held that
polygamy was a constitutionally protected religious practice under s. 2(a). However, the
Criminal Code prohibition was justified under s. 1 due to evidence of harm to women.
Denominational Schools – provincial jurisdiction
Constitution Act, 1867
Section 93:
In and for each Province the Legislature may exclusively make Laws in
relation to Education, subject and according to the following Provisions:
(1) Nothing in any such Law shall prejudicially affect any Right or Privilege
with respect to Denominational Schools which any Class of Persons have by
Law in the Province at the Union
Constitution Act, 1982
Section 29 (Charter of Rights and Freedoms):
Nothing in this Charter abrogates or derogates from any rights or privileges
guaranteed by or under the Constitution of Canada in respect of
denominational, separate or dissentient schools.
Section 2(a) requires a province to permit children to be educated outside the secular
public system, although the province must have the right to regulate alternative schools
(including denominational schools) to ensure a core curriculum and adequate facilities
and teaching standards are offered.
Loyola High School v Quebec (SCC 2015)
Quebec curriculum required an Ethics and Religious Culture course which would cover
the main religions of the world from a neutral perspective. Catholic school sought
exemption from this requirement, saying that they had an equivalent course taught from
a Catholic viewpoint. School was denied exemption.
SCC held that requiring the Catholic school to teach about Catholicism from a neutral
standpoint was a serious interference with freedom of religion but that the school could
be required to teach about other religions from a standpoint that was as neutral as possible.
Adler v. Ontario (SCC 1996) - s.93(1) reflects a historic compromise
A province’s failure to fund religious denomination schools that are not recognized by
s.93 is not a breach of religious freedom under s.2(a) (or equality under s.15 of the
Charter).
“[T]he decision [to give public funding to Catholic schools but not other religious
denomination schools] falls ‘fairly and squarely’ within s. 29 of the Charter which
explicitly exempts from Charter challenge all rights and privileges ‘guaranteed’ under
the Constitution in respect of denominational, separate or dissentient schools.
Religious marriage
Reference re Same-Sex Marriage, 2004
CCLW 6841 – Section 2(b) Charter Exercise – Expression
The Government of Ontario has become increasingly concerned about the possible
negative health effects of mobile phones. The provincial government has enacted a statute
called the Phone Safety Advertising Act, which requires that all television advertising for
mobile phones must disclose how much radiation is emitted by any phone shown in a
television advertisement. Canada’s large telecommunications companies (Bell, Rogers,
and Telus) are challenging the constitutionality of this new statute.
On Charter grounds, does the Phone Safety Advertising Act violate the
telecommunications companies’ s. 2(b) rights to freedom of expression? If not, why? If
s. 2(b) rights are violated, assess whether the law can be saved under s. 1 of the Charter.
Your answer must work through the judicial review steps for Charter analysis.
1) Characterization:
2) Irwin toy test:
3) Prescribed by law: yes, statute;
4) Oakes test:
a) legislative objective:
b) rational connection:
c) minimal impairment:
d) proportionate effects:
Topic 17 – Fundamental Justice
Constitution Act, 1982, s. 7
“Everyone has the right to life, liberty and
security
of
the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice”
Life, Liberty, & Security of the Person
Benefit of s. 7
Section 7 applies to “everyone”
Does this include a corporation? No. S. 7 only applies to natural persons. However, this
does not mean that a corporation can never invoke s. 7 because corporations can defend
itself and challenge laws using s. 7 because they can argue that the law is a nullity for
violating s. 7 (R. v. Wholesale Travel Group).
What about immigrants to Canada? Yes (Singh v. Minister of Employment and
Immigration).
A foetus? No.
Life
What is “life”? Seems obvious, but the state does not actually threaten life directly very
often (i.e., death penalty)
Can have a wider definition. Examples:
i.
excessive wait times for treatment in the public health care system;
ii.
the prohibition on physician-assisted suicide (because some people took their own
lives prematurely).
Liberty
What is “liberty”?
1) Physical liberty
Freedom from physical restraint

Obviously includes imprisonment, as well as any law that imposes the penalty of
imprisonment (even if the sentence is discretionary);

Also includes statutory duties to submit to fingerprinting, to produce documents,
to give oral testimony and not loiter in or near schoolgrounds, a change in terms
of a prison sentence and the transfer from minimum security to medium security
prison – these also qualify as deprivations of liberty attracting fundamental justice
(i.e., these laws must conform to the principles of fundamental justice)

Does not include:
o
a law that imposes only a fine, or suspension of a driver’s licence
o deportation of a non-citizen;
o economic liberty or political liberty.
The SCC has extended the right to “liberty” beyond just physical restraint. It applies
whenever the law prevents a person from making “fundamental personal choices”
Carter v. Canada (2015) - physician-assisted suicide
The 2015 Supreme Court of Canada case Carter v. Canada (Attorney General) established
that the Canadian ban on assisted dying violated the right to liberty. The court ruled that
the ban infringed on the Charter of Rights and Freedoms.

Carter v. Canada was a challenge to the constitutionality of the Criminal Code's
ban on physician-assisted dying. The case was brought by Gloria Taylor, who had
a fatal neurodegenerative disease, and others who had helped their mothers access
assisted dying in Switzerland.

The court ruled that the ban violated the right to life, liberty, and security of the
person. The court found that the ban was not justified and that a system with
safeguards could protect vulnerable people.

The ruling led to the creation of a joint Senate and House of Commons committee
to study assisted dying and consider changing the law. The committee used the
term "medical assistance in dying" (MAID)
2) Security of the person
A) Physical integrity
It is clear that “security of the person” encompasses protecting physical integrity

Spanking children adversely affects children’s security of the person, but the
SCC found no breach of the principles of fundamental justice. So, s. 43 of
Criminal Code allowing spanking did not violate s. 7 of Charter (Canadian
Foundation for Children, Youth and the Law v. Canada (2004)

Restricting access to abortion (R. v. Mortgentaler (No. 2) (1988): the SCC held
that the Criminal code’s restrictions on abortion were unconstitutional.

The SCC held that excessive wait times for surgery in the public health care
system in Quebec caused unnecessary pain and stress, therefore, there was a
breach of the right to security of the person (as well as to life) - (Chaoulli v.
Quebec (2005)).

The SCC held that the Legislative, making certain prostitution-related activities a
criminal offence , has a negative impact on the security of the person of
prostitutes, therefore, section 7 applied, and the Court went on tho strike down the
laws or breach of the principles of fundamental justice (Canada v. Bedford
(2013)).
B) Psychological Integrity

New Brunswick v. G.(J.) (1999): removing children from parents and placing
them with the state affects the security of the person of the parent because the
government action would constitute a “serious interference with the psychological
integrity of the parent”;

Blencoe v. British Columbia (2000): unreasonable delay by the BC Human
Rights Commission in dealing with complaints of sexual harassment against the
accused did not qualify because not a severe enough impact (but could trigger s.
7 in another case if a person is distressed enough) ;

Gosselin v. Quebec (2002): failure to extend the same welfare benefits to those
under age 30 did not trigger s. 7 because s. 7 has not been extended to protect
economic rights and because s. 7 prohibits state deprivations of security of the
person and does not impose a positive obligation on the state to ensure that each
person enjoys life, liberty and security of the person.
3) Property: NOT INCLUDED in Section 7
Section 7 does not include property (this was a deliberate exclusion).
Consider issues like expropriation of land.
US has constitutional protections related to expropriations in takings clause of the 5th
Amendment: “nor shall private property be taken for public use, without just
compensation”.
Though note evolving meaning given to “public use” in cases like Kelo v. City of New
London (2005) under the living constitution.
Canada has no equivalent to takings clause in US Bill of Rights. Challenges relating to
expropriations are based on compliance with relevant statutes, e.g., Municipal Act and
Expropriations Act.
Vincorp Financial Ltd. v. Oxford (County), 2014 ONCA 876 (CanLII). Allowed
expropriation of land from private landowner to the municipality and subsequent transfer
to Toyota to build manufacturing plant. Leave to appeal denied by SCC.
Fundamental Justice
1) Procedure and substance
A deprivation of life, liberty or security of the person is a breach of s. 7 of the Charter
only if the deprivation is not in accordance with “the principles of fundamental
justice”.
When the Charter was adopted in 1982, the phrase “the principles of fundamental justice”
did not have a firmly established meaning in Anglo-Canadian law.
The legislative history of. s. 7 makes clear that the framers thought that fundamental
justice meant natural justice (due process of law).
What does this mean?

Just protection for procedural rights, i.e. right to a hearing, to unbiased
adjudication and a fair procedure (so-called, “natural justice”)?

Or do the principles of fundamental justice include something more substantive?
B.C. Motor Vehicle Reference (1985)
Three reasons for extending fundamental justice beyond procedure (as it appears that the
framers of the Constitution thought it just meant natural justice / issues of procedure) –
per Lamer J.
1. The words “fundamental justice” are broader in scope than “natural
justice” and the framers could have used either phrase
2. The broader interpretation expands the protection of life, liberty and
security of the person
3. Section 7 is a general residuary clause for all legal rights of the Charter
in ss. 7 – 14 (but this was a contentious reason)
2) Definition of Fundamental Justice
B.C. Motor Vehicle Reference
The SCC definition of fundamental justice in B.C. Motor Vehicle Reference: “the
principles of fundamental justice are to be found in the basic tenets of the legal
system”.
What does this mean?
R. v. Malmo-Levine (2003) – harm principle not upheld
Challenge to the criminalization of possession of marijuana, which included the penalty
of imprisonment – was the “harm principle” (i.e., don’t criminalize conduct that does not
cause harm to others) a principle of fundamental justice?
The SCC held that there are 3 requirements for a rule to qualify as a basic tenet of the
legal system and therefore as a principle of fundamental justice:
i.
The rule must be a “legal principle”;
ii.
There must be a “significant societal consensus that it is fundamental to the way
in which the legal system ought fairly to operate”;
iii.
The rule must be capable of being “identified with sufficient precision to yield
a manageable standard”.
**The “harm principle” did not meet any of the three requirements so the criminalization
of possession of recreational marijuana was upheld. Therefore, it was open to Parliament
to impose a sentence of imprisonment for crime that did not involve harm to others
(cannibalism, bestiality, duelling and consensual incest).
Procedural Justice
Right to:

notice

be heard and respond

representation

cross-examine

reasons

an adjudicator who is free from bias or appearance of bias

disclosure

Duty of decision-maker to consider all evidence

interpreter

Legitimate expectations (when promised that a certain process will be followed)

Institutional independence

Person hearing the case must decide the outcome (exceptions exist)

not have unreasonable delay
Substantive Justice
B.C. Motor Vehicle Reference (1985)
Three reasons for extending fundamental justice beyond procedure (as it appears that the
framers of the Constitution thought it just meant natural justice / issues of procedure) –
per Lamer J.
i.
The words “fundamental justice” are broader in scope than “natural justice” and
the framers could have used either phrase;
ii.
The broader interpretation expands the protection of life, liberty and security of
the person;
iii.
Section 7 is a general residuary clause for all legal rights of the Charter in ss. 7
– 14 (but this was a contentious reason).
1) Absolute Liability Offences
In R. v. City of Sault Ste. Marie (1978) the SCC described the offence of absolute liability,
in which the offence consists simply of doing the prohibited act. There is no requirement
of fault, either mens rea or negligence. The defendant could be convicted even if there
was no intention of breaking the law and also exercised reasonable care to avoid doing
so.
B.C. Motor Vehicle Reference (1985)
A reference by the government of B.C. to determine the validity of a provision in the
Motor Vehicle Act which made it an offence to drive a car while prohibited from driving,
or driving with a suspended licence.
It was an “absolute liability” offence, meaning the offence consists of simply doing the
act itself; where no requirement of fault (mens rea or negligence)
However, in subsequent cases, a guilt is established just by driving, whether you knew
about the licence suspension or not and the mandatory penalty was imprisonment
SCC held it was a breach of fundamental justice to impose a term of imprisonment
for an offence that lacked mens rea (a guilty mind) – this was a substantive injustice.
Accordingly, s. 7 prohibits substantive as well as procedural injustice.
A court may strike down an absolute liability offence if it violates section 7.
However, an offence is not always struck down as a violation of s. 7 where the court can
exercise some remedial options such as interpreting the offence as one of strict liability
instead of absolute liability (i.e., allow a defence of due diligence) or where the court can
read in a mens rea element into the offence
R. v. Hess (1990) - severance
statutory rape provisions in Criminal Code, prohibiting sex with female person under the
age of 14. Sex was prohibited whether or not the accused believes the female is 14 or
older. Just the fact of the victim being under 14 was sufficient. The statutory rape law in
Hess would have created an absolute liability offence with imprisonment as a punishment.
Court severed the words about “whether or not [the accused] believes [the victim] is
fourteen years of age or more”.
2) Strict Liability Offences - valid
Offences of strict liability are those in which the offence consists simply of doing the
prohibited act. However, it is a defence if the defendant proves to the civil standard of
balance of probabilities that he exercised reasonable care (due diligence) to avoid
committing the offence. In effect, there is a fault requirement of negligence, because the
accused is liable only if he cannot prove the exercise of reasonable care.
R. v. Wholesale Travel Group (1991)
Corporation charged with misleading advertising under a strict liability offence. The
accused corporation argued that it is a violation of fundamental justice to place an
individual in jeopardy of imprisonment for any lesser fault than mens rea.
The SCC held that the offence was not really a “true crime” (i.e., not inherently wrongful
conduct) but was really a “regulatory offence” or a “public welfare offence” (i.e.,
something that does not imply moral blameworthiness and attracts less social stigma).
Fundamental justice does not require that mens rea be an element of a regulatory offence
(even though the accused could go to prison). Later cases may be abandoning this
reasoning (see Hogg §47:18, especially last paragraph).
The effect of this case is to settle the validity of strict liability offences.
R v Naglik (1993)
The provision under challenge was the Criminal Code offence of failing to provide
necessaries of lige to a child under the age of 16 years. It was a case dealing with severe
neglect and abuse of the accused’s baby. Looks like a “true crime” but negligent failure
to provide necessities of life was held to be culpable.
3) Murder – violation of fundamental justice
The Criminal Code’s definition of murder used to include the so-called felony-murder
rule. If an accused caused a death in the course of committing a certain serious offences,
including robbery, while armed with a weapon, then the accused was guilty of murder.
R. v. Vaillancourt (1987)
Accused charged with murder as the result of a poolroom robbery in which the accused’s
accomplice shot and killed a customer of the poolroom where the accused knew his
accomplice was carrying a gun and he was part of the robbery.
SCC held that the felony-murder rule was a violation of fundamental justice under s.
7 of the Charter because before an accused can be found guilty of murder, he must have
mens rea (a guilty mind) with respect to the death (did not say if subjective or objective
mens rea – SCC later clarified that subjective mens rea is required for murder). Big
reason behind this was the stigma attached to being a murderer.
4) Unforeseen consequences – no violation to fundamental justice
Some Criminal Code offences set out a different penalty depending only on the
consequences of the act, as opposed to the mental state of the accused
Example: dangerous driving vs. dangerous driving causing bodily harm vs. dangerous
driving causing death.
Issue: is it a breach of fundamental justice to make an unintended and unforeseen
consequence the basis of a more serious charge and stricter punishment? No
R. v. DeSousa (1992)
Accused was in a fight and threw a glass bottle that shattered and injured an innocent
bystander. Charged with unlawfully causing bodily harm. Court ruled that accused was
properly convicted. No general constitutional requirement for all offences to have
intention or foresight into the harm that was caused.
Murder and attempted murder are part of a small group of offences that carry such a
stigma and penalty that they require fault based on a subjective standard.
5) Involuntary Acts
In principle, a person should not be convicted of a criminal offence for an act that is not
voluntary
Examples:
i.
Automatism
R. v. Parks (1992) – automatism case about sleepwalking. Accused got up in
middle of night, drove 23KMs to home of in-laws, killed mother-in-law and
wounded father-in-law. Charged with murder and attempted murder; acquitted
ii.
Duress (coacao)
R. v. Ruzic (2001) – duress case about woman acquitted after being forced to
carry drugs through the airport by criminals who threatened harm to her mother
in Belgrade.
iii.
intoxication
R. v. Daviault (1994): extreme intoxication was a successful defence to a charge
of sexual assault; Parliament amended the Criminal Code (adding s. 33.1) after a
public outcry making extreme self-induced intoxication the fault required for the
conviction of offences of violence
R. v. Brown (2022): SCC ruled that s. 33.1 violates s. 7 and 11(d) (presumption
of innocence) and cannot be saved by s. 1. Parliament responded with amendment
to the Criminal Code which made negligence in the consumption of intoxicating
substances a fault requirement of the offence.
R. v. Robinson (1996): murder (specific intent crime) while intoxicated; if
drunkenness raises a reasonable doubt as to whether the accused possessed the
specific intent to murder, the accused was entitled to be acquitted.
Principles of Fundamental Justice (substantive justice)
Laws that impinge on life, liberty or security of the person must not be (violation to
substantive justice):
i.
Overbroad
ii.
Grossly disproportionate
iii.
Arbitrary
iv.
Vague
1) Overbroad Laws
A law that is broader than necessary to accomplish its purpose is an overbroad law.
Overbreadth is a breach of the principles of fundamental justice.
R. v. Heywood (1994)
Involved a Criminal Code provision that made it an offence for a person who had
previously convicted of sexual assault to be found loitering in or near a schoolground,
playground etc.; the SCC found the law was overbroad and so it offended the principles
of fundamental justice.
The doctrine requires the law to be no broader than necessary to accomplish the purpose
of the law. Note that the purpose of the law is found by the Court, which gives the judges
a lot of discretion.
It could not be held under s. 1, because its overbreadth would cause it to fail the
minimum impairment (least drastic means) branch of the s. 1 analysis. The law was
therefore struck down in its entirety.
R. v. Bedford (2013) (prostitution laws)
Living off the avails of prostitution prohibited pimps, but also prohibited people who
could make the lives of prostitutes safer (e.g., bodyguards).
Overbreadth was applied again to strike down the law, but postponed the declaration of
invalidity for 12 months to allow for Parliament to amend the law.
Carter v. Canada (2015) (assisted suicide)
Law against assisted suicide sought to protect vulnerable people from being pressured
into suicide, but also prevented people without such vulnerabilities getting assisted
suicide. Overbreadth was applied.
2) Disproportionate Laws
A law that has a connection to its objective, but the s. 7 deprivation is so severe as to be
out of all proportion to the objective, then the s. 7 deprivation is classified as “grossly
disproportionate”.
R. v. Malmo-Levine (2003): (marijuana possession); the SCC held that the doctrine of
disproportionality requires the court to determine:
i.
Whether a law pursues a legitimate state interest (yes, for possession of
marijuana) and, if yes;
ii.
Whether the law is grossly disproportionate to the state interest (no,
according to the SCC).
Canada v. PHS Community Services Society (Insite) (2011) (safe injection site)
disproportionality between effect of closing clinic and state interest in prohibiting drugs.
In the 2011 Supreme Court case Canada (Attorney General) v. PHS Community Services
Society (Insite), the court ruled that the government's refusal to grant an exemption
to Insite was grossly disproportionate. This meant that the harm caused by the
refusal outweighed the benefits.
The court found that the refusal was arbitrary and undermined the purpose of the
Controlled Drugs and Substances Act (CDSA), which is to promote public health and
safety. The court ordered the Minister of Health to grant Insite an exemption.
The court's decision was based on the following considerations:

Insite had no observable negative impact on public safety and health.

The refusal denied life-saving services to injection drug users.

The refusal could not be justified under section 1 of the Charter.

The refusal was grossly disproportionate in its effects.
Canada v. Bedford (2013) (prostitution): prohibiting communication (to prevent street
nuisance) and prohibiting bawdy-houses (to prevent disorder in neighbourhoods) were
disproportionate because of the increased dangers that they posed to prostitutes.
3) Arbitrary Laws
If a law has no connection to its objective, then the s. 7 deprivation will be arbitrary.
Chaoulli v. Quebec (2005)
Constitutional challenge to Quebec’s prohibition on the purchase of private health
insurance. The purpose and effect of the prohibition was to make the universal health care
plan exclusive (even though there were delays in getting timely treatment in the public
health care system, a breach of the s. 7 right to life and security of the person).
SCC split evenly: 3 judges held that a law is arbitrary if it “lacks a real connection on the
facts to the purpose the law is said to serve”. There was evidence that in other
jurisdictions parallel access to private care did not injure the public health care
system, so the law was indeed arbitrary. 3 other judges relied on expert evidence to
find that the development of a private system would divert resources away from the public
system, so the law was not arbitrary. 1 judge, Deschamps, confined her decision to
provision of the Quebec Charter that is akin to security of the person. Quebec law was
thus struck down but decision only applies to Quebec.
4) Vague laws
A vague law violates the principles of fundamental justice because it offends two
principles that are fundamental to the legal system:
i.
A vague law does not provide fair notice to persons of what is prohibited,
which makes it difficult for them to comply with the law.
ii.
A vague law does not provide clear standards for those entrusted with
enforcement, which may lead to arbitrary enforcement.
What constitutional standard of precision is required? Cannot, even with judicial
interpretation, provide meaningful standards of conduct. Proposed meanings of
vagueness (R v Nova Scotia Pharmaceutical Society, SCC 1992):

not intelligible;

does not delineate area of risk;

is not an adequate basis for legal debate.
Note: the doctrine of vagueness is not confined to s. 7. Vagueness also applies to rights
that carry implicit requirement that laws not be vague. E.g., s. 11(e), right to not be denied
bail without just cause implies that statutory criteria for granting bail must be sufficiently
precise
CCLW 6841 – Section 7 Charter Exercise
Since marijuana has been legalized by the federal government, the government of Ontario
has had to update statutes and create regulations for the sale and consumption of
marijuana within the province’s own sphere of authority. One concern has been that the
use of marijuana close to school properties might encourage children to start smoking
marijuana. The government of Ontario has thus passed a statute which prohibits the use
of marijuana within 1km of an elementary or high school property. The statute applies
whether the marijuana is being consumed on public or private property.
Violating this law carries a minimum penalty of a $2000 fine. The maximum penalty is 2
years less a day in prison.
Does this statute violate s. 7 Charter rights to life, liberty and security of the person?
1) Violation on liberty
2) Natural Justice: not procedural
Substantive justice
 Overbroad: the limitation to 1km is overbroad.
R. v. Heywood (1994): involved a Criminal Code provision that made it
an offence for a person who had previously convicted of sexual assault to
be found loitering in or near a schoolground, playground etc.; the SCC
found the law was overbroad and so it offended the principles of
fundamental justice
 The doctrine requires the law to be no broader than necessary
to accomplish the purpose of the law.
 Note that the purpose of the law is found by the Court, which
gives the judges a lot of discretion.
 Grossly disproportionate
 Arbitrary
 Vague
For there to be a violation of s. 7 Charter rights, there must be a restriction of life, liberty,
or security of the person AND the restriction must not be in accordance with the principles
of fundamental justice.
In this case, the government has created an offence in which the penalty is a minimum of
a fine and a maximum of 2 years less a day in prison. Although a fine would not be
considered a deprivation of liberty, a term in prison, which is a deprivation of physical
liberty, certainly qualifies as a deprivation of liberty under s. 7 of the Charter.
We must now ask whether this law would deprive people of liberty in a way that is
inconsistent with the principles of fundamental justice. If the law deprives people of
liberty in a way that is consistent with the principles of fundamental justice, then
there is no violation of s. 7.
The principles of fundamental justice provide both procedural and substantive
guarantees (B.C. Motor Vehicle Reference (1985)). One of the principles of
fundamental justice is that laws that impinge on life, liberty, or security of the person
must not be overbroad. Laws must not be broader than necessary to accomplish their
purpose. In the case of R v Heywood, the court found that the law was broader than
necessary to accomplish its purpose because the law was (1) too wide in its geographic
scope, (2) too long in its duration, and (3) applied to too many people (including
those who would not pose a danger to children).
In this exercise, the purpose (characterization) of the law is to prevent children from
observing the consumption of marijuana, which might encourage the children to
smoke the drug. This is a perfectly fine purpose for the law to have, but the geographic
scope of this law is too wide. 1km from a school is far too wide. Moreover, the law
applies even when the drug is being consumed on private property, with no consideration
that consumption on private property might even be completely out of view of any
children in the school. One could also argue that that law applies to too many people,
including those who might be using marijuana for medical purposes, which would not be
likely to encourage the recreational consumption of marijuana (recreational consumption
likely being the government’s main concern when it comes to children in schools).
Thus, because the penalty for breaching this law can be a term of imprisonment (which
is a restriction on liberty) AND the law is overbroad (which is not consistent with the
principles of fundamental justice), this law violates s. 7 Charter rights.
Topic 19 – Constitutional Remedies
Constitution Act, 1982, ss. 24, 52
i.
Vriend v. Alberta, [1998] 1 S.C.R. 493
ii.
Vancouver v. Ward, 2010 SCC 27
iii.
Carter v. Canada, 2015 SCC 5
iv.
Conseil scolaire francophone de la Columbie-Britannique v. British
Columbia, 2020 SCC 13