Criminal Law Power
Federal:
s. 91(27): basic authority for criminal law, includes criminal procedure.
s. 91 (28): establishment, maintenance and management of penitentiaries
Provincial:
s. 92(14): administration of justice, maintenance and organization of courts, control over civil procedure
s. 92(15): ability to impose punishments (fine, penalty, imprisonment) for infringing any valid Provincial
law. Ability to create regulatory offences
s. 92(6): establishment, maintenance and management of prisons
FEDERAL POWER
PATA Case
-Fed regulation tried to stomp out monopoly practices under the criminal law power
-Criminal law only needs form (not substance): Prohibition + Penalty ***Not good law now***
Margarine Reference
-Fed used criminal law to regulate color of margarine so dairy industry could retain the butter market
Court:
-Only having formal requirement could result in fed making anything criminal (ex. Fed favoring one
private industry over another)
-Criminal law carries a stigma, so wrongs underneath it should be of proportion to deserve that stigma
-Criminal law needs a public purpose: public peace, order, security, health, morality
RJR-MacDonald
-Fed makes restrictions on tobacco advertising, BUT no restrictions on sale or foreign advertising (65%)
Dissent: Cannot claim purpose is to stamp out a public wrong, when the wrong itself is unrestricted
Majority:
-Restrictions are valid under criminal law power when:
a. Form = clear prohibition + penalty
b. Public purpose = directed at serious health issue and not colourable
-Lots of tolerance for partial measures (i.e. restriction on advertising, not prohibition of sale) b/c:
a. Allow feds discretion about best way to deal with issue (i.e. prohibition would force it under)
b. Can deal with problem indirectly or partially
-Tradeoff between form and purpose is acceptable: weak form, but heart of criminal law?
-NB: can also have prohibition coupled with complex exceptions (ex. gambling and lotteries)
Firearms Prohibition Case
-Highly regulatory structure departs from basic form, but upheld under criminal law power because gun
control lies at the heart of criminal law
-Tradeoff: weak form but strong purpose = upheld under criminal law power
Hydro Quebec Case
-Fed makes highly regulatory scheme for prohibiting toxic substances
Dissent: this is regulatory and not part of fed power under POGG
Majority:
-Do not need to consider POGG because it falls under valid criminal law power
-The simple prohibition of toxic substances can require a complex regulatory scheme behind it
-Form less important because toxic substances are traditionally criminal law purpose
-JW: this case is at the limit of federal use of criminal law power
SUMMARY
2-Part Test for Federal Criminal Law Power under s. 91 (27)
1. Form requirement (prohibition + penalty): PATA
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YES: can be compromised if legislation is at heart of crim law: Firearms Prohibition
YES: complicated regulation to identify what is prohibited is okay: Hydro-Qeubec
2. Criminal Purpose: public, peace, order, security, health, morality, etc: Dairy Industry Act
NB: the “public wrong” should by proportional to the “moral stigma” of crim law: Margarine
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NO: preference of one private trade group over another: Margarine
YES: strong criminal purpose allows for weak form (i.e. partial prohibition): RJR Macdonald
YES: strong criminal purpose allows for weak form (i.e. highly regulatory): Hydro-Quebec
NB: The test is not rigid; it is a guideline to a complex weighing process. Court will relax form
requirement if when there is a strong purpose, and vice versa.
PROVINCIAL POWER
McNeil (1978): Provincial law upheld
-NS has created censorship board that allows it to ban films it disapproves of
Dissent (Laskin):
-Pith and Substance is about morality, which is exclusively criminal law and federal jurisdiction
-Using a difference in form (regulation) to get same substantive result (prohibition) is not okay
Majority:
-Provincial legislation is okay if:
a. Purpose is regulation of a business: s. 92(13)
b. Purpose is regulation of property or nuisance: s. 92(13)
c. Purpose is prevention of crime: s. 92(14)
d. Purpose is regulation of local morality
NB: c. and d. are much weaker because less tightly tied to existing provincial powers
Westendorp (1983): Provincial law struck down
-Calgary makes a by-law prohibiting people from using streets for purposes of prostitution
Majority (Laskin):
-No private property regulation here because streets are public
-Floodgates: regulate use of streets for drugs crimes?
-Public morality is criminal law and federal jurisdiction
-Form looks like simple prohibition (crim), not highly regulatory (prov): would have been valid if streets
were being regulated for other purposes than just prohibition of prostitution
JW: The hostility Laskin shows towards overlap of fed and prov powers, and his broad reading of IJI
would unlikely be upheld today. Singling out not always bad. Real question should be about purpose!
Rio Hotel: Provincial law upheld
-Prohibits exotic dancing as a marketing tool for selling alcohol: regulation of liquor sales is purpose
-Majority (Estey): Provinces can make moral restriction so long as it is part of a valid provincial
regulation (cannot have totally amoral level of government)
-Majority (Dickson): Agrees with Estey, but doesn’t want to say provinces are allowed to regulate
morality, so he says only a marketing tool is being regulated (sounds disingenuous)
-JW: Frankly, this is a regulation of morality, but provinces are allowed to regulate morality if it falls
under a valid head of power and is part of a large regulatory scheme (no stand alone crim prohibition)
Chatterjee: Provincial law upheld
-Province is allowed to seize property that is the result of crime: further penalization of crim law?
Majority:
-Purpose: primarily about property (compensation to victims, community, government is private law)
-Form: is very general to catch all crimes (does not target specific crimes, and does not need conviction)
NB: Province knew they were cutting it close (made purpose statement declaring this about s. 92(13))
NB: BOP is lower in civil cases, so could punish people who are not yet criminally convicted
NB: There are procedural guarantees to prevent double forfeiture
SUMMARY
Provincial law is intra vires if consists of the McNeil criteria
1. Purpose is regulation of a business: McNeil, Rio Hotel
2. Purpose is regulation of property or nuisance: Chatterjee, Westerndorp
-These are very solid criteria
3. Purpose is prevention of crime:
4. Purpose is regulation of local morality: Rio Hotel
-These are weak criteria, and you do not want them to be the main purpose of the legislation
*The main purpose must be about regulating a business or property (s. 92(13)), not about morality
*It is acceptable for provinces to deal with morality, so long as it is
a. not the main purpose (Westerndorp)
b. falls within larger, valid regulatory scheme (Rio Hotel, Chatterjee, McNeil)
*Ask yourself: How closely does provincial legislation track an existing crime?
Is the provincial legislation enforcing morality?
Trade and Commerce
Federal:
s. 91(2) trade and commerce
-Specifically listed industries: public debt and property, unemployment insurance, tax, postal service,
census, military, salaries of civil servants, lighthouses, shipping, quarantine, fisheries, ferries, currency,
banking and money, measurement, promissory notes, interest, money, bankruptcy, patents, copyrights,
Indians, immigration, marriage and divorce, criminal law, penitentiaries
Provincial:
s. 92 (13): property and civil rights
s. 92(16): matters of a local or private nature
s. 92(11): power to incorporate provincial corporations
-Also others listed
Parsons (1882)
-Provincial legislation regulating fire insurance
Problem: a broad reading of trade and commerce would obliterate almost all provincial jurisdictions
Correct interpretation: “trade and commerce” has narrow meaning, and provincial law has broad
meaning
Federal “trade and commerce” is limited to three branches:
1. Political arrangementsIgnore
2. Interprovincial and international trade concerns
3. Potentially the general regulation of trade that affects the whole country
FIRST BRANCH: INTERNATIONAL/INTERPROVINCIAL TRADE
-Federal and provincial powers are basically mutually exclusive:
Federal = only sales across provincial borders
Provincial = only sales within provincial borders
NB: this has caused many problems for agricultural industry because of market stabilization
Carnation (1968): Provincial law upheld
-Quebec set in place collective bargaining regime about price milk producers get if sell to Carnation
Court:
-Consider where the actual transaction occurs, not whether the product later crosses a border
-Incidental effects are acceptable, so long as purpose of legislation is to regulate sales within province
Manitoba Egg (1971): Provincial law struck down
-Quebec and Ontario were creating marketing boards to protect their domestic egg/chicken farmers
from more efficient producers
-Manitoba was getting upset because they were efficient producers of eggs and chickens, and now they
were facing protectionist practices so their market was evaporating
-Manitoba set up legislation based on Quebec’s purely to have it struck down
Court:
-Provincial regulation of trade and commerce ultra vires if:
1. Regulates sales crossing provincial boundaries
2. Or if it can be specifically designed to impair cross-boundary sales (quotas, tariffs, etc)
NB: After confederation, a national market was guaranteed and provinces are not allowed to restrict
trade with quotas or tariffs
NB: The invalid provisions were too tightly integrated to be severable, so entire regime struck down
DEVELOPMENT OF “INCIDENTAL EFFECTS”
Murphy (1958)
-Fed wants to regulate sales within province (farmers and grain elevators) because they affect the
quality of grain being sold interprovincially
-Court: So long as the purpose is to regulate interprovincial trade, fed can regulate prior sales occurring
within the province
Caloil (1971)
-Fed allowed to regulate sales within province (oil) after product has been imported because it is about
international trade
Klassen (1960) MCA
-Same as Murphy; court allows fed to regulate grain that is mostly being exported, even if regulations
affect the grain that is not being exported. “De minimis” incidental effect
SUMMARY OF FIRST BRANCH: INTERNATIONAL/INTERPROVINCIAL TRADE
Provincial power:
1. Regulation of sales occurring within provincial borders: Carnation
2. Incidental effects on other provinces is acceptable if purpose is provincial regulation: Carnation
3. Incidental effects on other provinces are unacceptable if designed to impair cross-border sales: Egg
Federal power:
1. Regulation of sales occurring across provincial borders: Manitoba Egg
2. Incidental effects on sales occurring within province is acceptable so long as purpose is about crossborder trade of recently imported or soon-to-be exported good: Caloil, Murphy
3. Incidental effects on sales occurring within province is acceptable even if the good will never be
exported, so long as the regulation is aimed at cross-border trade and the incidental effect is “de
minimis”: Klassen
SECOND BRANCH: GENERAL REGULATION OF TRADE THAT AFFECTS THE ENTIRE DOMINION
MacDonald (1976)
-Federal legislation fails because it is seen as simply an extension of private law remedies, so it infringes
on property and civil rights.
-What is important is Laskin’s musings on what would make a Federal act valid under the general power:
1. general regulatory scheme
2. oversight of regulatory agency
3. regulation of trade as a whole, rather than a particular industry.
Labatt (1979)
-Federal legislation about ‘products standards’ for beer is struck down
- Even though act covers many industries, it individually regulates each particular industry, therefore it is
not about trade as a whole
GM v City National Leasing (1989)
-Are the civil remedies provided for in Combines Investigation Act intrusions into provincial jurisdiction
of “property and civil rights”?
A. Validity of the act under s. 91(2): general scope of “trade and commerce”
1. General regulatory scheme
2. Oversight of regulatory agency
3. Trade as a whole rather than a particular industry
4. Provinces would, jointly or severally, be incapable of enacting this regime
5. Failure to include one would jeopardize entire scheme
-“Complex weighing” where none of these are determinative, but are strong guidelines
-1, 2, and 3 are strong because adopted from MacDonald
-1 and 2 make this about public objective, so different from private law
-3 makes this broader than province’s power over particular trades
-4 and 5 emphasize the need for federal role (like national dimensions test)
NB: This does not mean provinces are precluded from legislating wrt competition
NB: There are not many things that the general power could apply to: preventing monopolies,
also possibly trade in securities, imposition of international trade agreements, IP law
B. Validity of specific intrusions
*This test is not unique to “trade and commerce”
1. Is there an intrusion, and what is its extent?
2. Is the main legislation valid?
3. Is the provision sufficiently connected to the rest of the act?
NB: the legal effect is considered more than practical effects (only consider practical effects to
decided if the legislation is colourable, not to decide if it is good or bad legislation)
SUMMARY OF SECOND BRANCH: GENERAL REGULATION OF TRADE AND COMMERCE
A. Validity of the act under s. 91(2): general scope of “trade and commerce”
1. General regulatory scheme
2. Oversight of regulatory agency
3. Trade as a whole rather than a particular industry
4. Provinces would, jointly or severally, be incapable of enacting this regime
5. Failure to include one would jeopardize entire scheme
B. Validity of specific intrusions
*This test is not unique to “trade and commerce”
1. Is there an intrusion, and what is its extent?
2. Is the main legislation valid?
3. Is the provision sufficiently connected to the rest of the act?
Spending Power
Federal:
s. 91A: the public debt and property
s. 91(3): the raising of money by any mode or system of taxation
s. 91(4): the borrowing of money on public credit
Provincial:
s. 92(2): direct taxation within the province in order to raise revenue for provincial purposes
s. 92(3): the borrowing of money on the sole credit of the province
HISTORY
*Fed has power over purse strings, which does not align with constitutional division of powers
 Through spending power, Fed govt can influence areas of exclusive prov control:
healthcare, education, childcare
1. Historical reason: Post-WWII, Fed Govt did not retreat in role of exclusive taxation
Fed Govt offers Prov “grants” for funding healthcare, education and highway systems
difficult for prov to refuse $$ + double-tax residents
2. Currently, fed using extensive resources for policy making:
Conditional grants, shared-cost programs, direct grants, equalization grants, “tax expenditures”
CONSTITUTIONAL VALIDITY
Petter
-Spending power should be aligned with division of powers, otherwise ultra vires
-Federalism, responsible government, and accountability
-Revenue is raised through legislation, so spending should be approved by legislation (NOT Exec)
-Provinces won’t attack the issue because they don’t want to be cut-off (money with strings is better
than no money at all)
Winterhaven
-Spending power is not legislative decision-making, so not subject to the same legislative controls
Webber
-Ultra vires doctrine makes sense when fed uses spending power to control beyond its jurisdiction
-BUT striking it down by saying spending power is invalid is not practical (ex. Buying paperclips)
CONSTITUTIONAL ACCEPTABILITY
Tension: people care more about having the social programs (and don’t care where money comes from)
than about ensuring constitutional structure is strictly adhered to
Meech Lake and Charlottetown: both failed attempts at controlling spending power in subtle ways
(provide provinces with conditional “opt-out” options + system of consultation)
SPENDING POWER TODAY
-Courts treat spending power differently to legislation: legislation in this capacity performs a different
role (managing funds of people, not managing actions of people)
-Courts recognize it makes no sense to just deem it ultra/intra vires
-Need to try to find methods of limiting control internally, not using external rules of conduct
-Now: SUFA (all provinces except Quebec) = informal harmonization + cooperation
-does not constrain provinces by force of law.
-scepticism: has it achieved its objectives?
Application of CCRF
s. 32(1): Charter applies to “Parliament and government of Canada” and to “the legislature and
government of each province”
PURPOSE OF CHARTER
1. Form a public voice
2. Limit government
JW: People conceive CCRF as a method of restriction on government, but some of our best programs are
a result of positive government action: are our rights really best protected when state is limited?
-Charter is only a small subset of human rights protections:
-Bill of Rights (ordinary statute, protects HR within fed jurisdiction)
-Quebec CRF (only statute)
-Division of powers
-Implied limitations (parliamentary privilege, independence of judiciary, etc)
-International treaties that have been domesticated
-Aboriginal rights
-Criminal law
-HR codes in every province (protects against private citizen conduct)
-Charter is different because:
a. Entrenchment of rights guarantees them
b. Concerned with restricting state action (not private)
-Charter guarantees:
* 1st gen rights = civil and political rights based on possessive individual of classical liberalism
* A little bit of 3rd gen rights = communal aspirations (i.e. French language rights)
-Charter DOES NOT guarantee:
* 2nd gen rights = welfare and social protections based on need for positive support (substantive
rather than formal equality)
* 4th gen rights = rights to animals, plants, ecosystems, environment
APPLICATION OF THE CHARTER
Vertical application: CCRF only applies to government, not private actions
1. Government represents people and takes everyone’s money, so it should be held to a higher
standard of conduct (ex. Individual can be racist, but welfare officer cannot)
2. It is impractical to “strike down” private actions
Horizontal application: CCRF applies to all branches of government
Dolphin Delivery (1986) *Not good law, but basis for McKinney*
-Union wants to picket DD because they are allied with Purolator
-Secondary picketing is governed by BC statute, but doesn’t apply because Purolator is fed incorporation
-Union must challenge injunction under the common law: infringement of freedom of expression
-Does CCRF apply to common law?
*Yes, but only when CL forms the basis for exec or leg action
*No, not when CL forms basis for private litigation (i.e. not when courts exercise government
policy as neutral arbitrators)
-Problems:
1. Declares that leg action is subject to Charter scrutiny, but identical actions by judiciary
through common law are not subject to Charter scrutiny
-Hogg: if the litigation surrounds the actual common law or statute itself (not private actions),
then Charter should apply
-Dolphin: only apply Charter scrutiny if there is state legislation or state actors in litigation
-Even if we accept that judiciary is a neutral arbitrator, still problems:
1. Makes no sense to treat private litigation based on statutes subject to Charter, but private
litigation based on common law not subject to Charter
NB: Judges are under Charter scrutiny when acting as a party in their institutional capacity, or
performing criminal law
2. Makes no sense that Charter does apply to common law when state is a party, but not if only
between private actors
3. If common law made into statutes, then Charter would apply inconsistently across provinces
(i.e. private law in Quebec subject to Charter because civil system makes everything statutes)
Dolphin Summary
Charter applies to:
1. Legislation (with weird exception of private law in Quebec)
2. Executive action
3. Courts and judges when they act as parties in their institutional capacity (judge crossing picket line to
issue an injunction in BCGEU) or perform criminal law
Charter does not apply to:
1. Common law in purely private litigation
NB: Charter should form the basis for the evolution of the common law, but does not directly apply
McKinney (1990)
-Charter does not apply to universities because universities simply because they are created by
legislation and receive funding
Test for whether Charter applies to institution:
1. If legal control vested in the government (leg or exec), then Charter applies to everything it does
2. If not “part of the government”, but it exercises a specific governmental function, then Charter
applies to that function only. Not applicable to ‘general government objectives’, just ‘specific objectives’
Eldridge (1997)
-“Benefits” of medical services does not include providing interpreters for deaf people at hospitals
Court: Leg is not under-inclusive because it can be interpreted in accordance with the Charter
Court: Specific decision does fall under Charter because delegated by leg, but entity as a whole does not
Use McKinney Test:
1. “Part of government”: court does not need to answer this about hospital because Medical Services
Board falls under next part
2. “Specific government function”: MSB has been delegated specific task of determining “benefits”, so
this specific decision attracts Charter scrutiny, but hospital as a whole does not
Godbout (1997)
-Municipality required employees to reside in municipal limits
-McKinney test does not work!
-Contradicts McKinney’s “no general government objectives” requirement and says municipalities are
“quintessentially government function” (tax, voting, legislation, enforcement) so Charter is applicable to
them as it would be to Leg or Exec
Vriend (1998)
-Fired from university for being gay, but cannot get remedy because Alberta HR code does not have
homosexuality as an enunciated ground. Charter protection?
-Can Charter apply to government inaction (HR code under-inclusive)?
-Cannot apply Charter to private activity per se, but can apply it to legislation that affects private activity
Problem: Alberta could appeal entire HR code; the ‘right’ only exists because the legislation exists
SUMMARY OF APPLICATION OF THE CHARTER
Charter applies to:
1. All laws enacted by legislatures (including legislation that affects private activity): Vriend
2. Executive/administrative branches of government
3. Judiciary when acting as party in their institutional capacity (judge crossing picket line to issue
an injunction in BCGEU) or when case expressly addressed by Charter (criminal law): Dolphin
4. Private actions based on statutes: Dolphin
5. Municipalities: Godbout
6. Common law definitions if statutes have been based on them: Halpern
Charter does not apply to:
1. Private actions based on the common law: Dolphin Delivery
Charter will apply to institutions where:
1. The internal decision making apparatus is controlled by government: McKinney
2. Particular tasks that are delegated by the government even if institution as a whole is not
covered: McKinney, Eldridge
3. If the institution is covering a quintessentially government function, the whole entity will be
covered: Godbout
The Charter does not apply simply because an institution:
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



Carries out a government function
Receives government funding
Is created or empowered by the government
Provides a government service
Has general objectives determined by the government (somewhat contradicted in Godbout)
The Notwithstanding Clause
s. 33 (1): Parliament or legislature may make act that infringes on s. 2 or s.7 – s.15, but must expressly
say the act exists ‘notwithstanding’ the infringed rights
s. 33 (3): Notwithstanding acts automatically cease to exist after 5 years unless re-enacted by leg
NOTE: s. 6 (mobility rights) and s. 23 (minority language education) cannot be overridden because “less
fundamental rights” are the ones that are likely to be overridden! They are less supported by the
majority than the “fundamental rights” so need more protection
Ford
Background: Quebec was mad about the CCRF because they did not like how it was able to be adopted
without their support, and because they were worried it would highlight English values
-Quebec adopts ‘notwithstanding clause’ for all present and future legislation so nothing would be
under Charter scrutiny: can you invoke NWS clause in blanket fashion?
Arguments:
1. Need to name a specific provision that will be violated, because blanket application won’t trigger
democratic debate
2. Leg also needs to specify the link between the Charter provision being infringed and the new
legislation, also to promote democratic debate
SUMMARY OF NOTWITHSTANDING CLAUSE
1. NWS clause cannot be applied retroactively
2. NWS clause only requires form (must be invoked expressly), and courts will not scrutinize substance:
a. Do not need to anticipate which rights will be infringed, or link between Charter provision and
new legislation
b. NWS clause can be applied as blanket clause
NB: Democratic debate was still triggered in this case, without requiring court to read in special
requirements
Webber: Dialogue Theory
-Dialogue theory says courts and legislature communicate to balance their strengths and weaknesses
Courts = particular rights infringed
Legislature = complex social interest balancing
How it works:
Leg makes statute  Court strikes it down as unconstitutional  Leg invokes NWS clause to check court
-It makes better sense to leave final decision in hands of elected legislature than appointed judiciary
-In cases where there are complex social interests, courts can defer to legislature as best suited to
decide: Khadr
-Problem is that if court does not declare it unconstitutional and just defers to legislature, they might
not act at all and then plaintiff is left without remedy: Khadr
Section 1
s. 1: The CCRF guarantees these rights and freedoms subject only to reasonable limits prescribed by law
as can be demonsratably justified in a free and democratic society
-Rights are generally guaranteed, and justified infringement should be the exception, not the rule
-If rights are going to be infringed, the reasons must be clear (“prescribed by law”)
a. Can limit with common law
b. Only need “intelligible standard” rather than “crystal clear” limits
Oakes Test
1. Purpose must be “pressing and substantial”
2. Infringement must be proportional
a. Rational connection
b. Impair as little as possible (minimal impairment)
c. General proportionality (balance benefit of legislation against individual interests)
*Inquiry almost always fails at “minimal impairment” stage
Framework for Oakes Test:
1. Burden of proof: first on P to determine there is a breach, then shifts to Crown to justify under s. 1
2. Standard of proof: civil standard on balance of probabilities
Freedom of Religion (FOR)
s. 2 (a): freedom of conscience and religion
s. 24(1): anyone whose rights have been infringed may apply to a court of competent jurisdiction to
obtain and appropriate remedy
s. 27: Interpret Charter in a manner consistent with the multiculturalism
s. 52(1): Constitution is the supreme law of Canada, and inconsistent laws are of no force or effect
Big M Drug *Early Charter case which looks at how to deal with constitutional questions*
Standing: although corporation cannot hold a religious belief, they are being prosecuted under a
statute, so they are allowed to challenge the constitutionality of the statute regardless of their “beliefs”
Jurisdiction
* Any court/tribunal that has the ability to interpret law (not just fact) is allowed to rule on
constitutional questions if they arise in the case
* Courts/tribunals inferior to SC cannot hear actions for constitutional challenge that do not
arise in the case
Deference to other law
*US Bill of Rights: explicitly says there is no privileged religion in US, but no such clause in
Canadian constitution (ex. special protection for denominational schools)
*Canadian Bill of Rights: decisions under here are quite weak because statute-status, so use the
CCRF to decide FOR cases because it is entrenched
Structure of Charter claim
Dissent (Wilson): ignore purpose, and focus on effect of the law (this is what really matters)
Majority:
1) Does purpose constitute infringement?
2) If purpose is okay, does the effect constitute infringement?
Rationale: it is easier to prove ‘purpose’, so if the purpose is in breach, it is unnecessary to also make
person prove ‘effect’
Application of Purpose
-Shifting purpose rejected: the purpose of “Lord’s Day Act” was historically religious, and it is now being
enforced under criminal law which suggests enforcing morality
-Purpose is in breach so don’t need to consider effects
FOR in Canada
Three conceptual ways to frame freedom of religion:
1. Freedom from coercion; state cannot enforce any religion
2. Equality of treatment; state cannot treat different religions better or worse
3. Complete neutrality of the state with respect to religious or non-religious practices
Edward’s Books
-Charter issue about ‘universal day of rest’
1. Does purpose constitute infringement? NO
-Universal day of rest has a secular purpose: common day of rest to spend time with loved ones
-Not colourable attempt to observe Christian Sabbath: it is alright that it occurs on a Sunday
because this is the least ‘upsetting’ day because it is most observed already
-Canada cannot divorce itself from its history
2. Since the purpose is okay, does effect constitute infringement? YES
-Observers of days of the week (not weekend): not enough evidence to make decision, and
court refuses to take judicial notice of weekday observances
-Saturday observers: Breach because of competitive disadvantage to Saturday observers, not
because choosing Sunday is religious
Oakes: is infringement justified under s.1?
1. Pressing and substantial: Yes, common day of rest is pressing and substantial
2. Rational connection: Yes, exception protects retail employees and small stores because they
are more vulnerable
3. Minimal impairment: Yes, because it allows for exceptions for small stores that are
vulnerable, and forces big stores to give the day of rest (the larger the business gets, the less
likely it is that all the employees will be Saturday observers, so more important to give them
common day of rest)
Dissent (Wilson): decision must be made on principle, and the exemptions don’t make sense
Majority: give deference to legislature for making complex social decisions, and cannot apply
rigid Oakes test to non-criminal matters of social policy!
JW: argues Wilson is using an overly abstract and unrealistic approach.
SUMMARY OF FREEDOM OF RELIGION
Three conceptual ways to frame freedom of religion: Big M Drugs
1. Freedom from coercion; state cannot enforce any religion
2. Equality of treatment; state cannot treat different religions better or worse
3. Complete neutrality of the state with respect to religious or non-religious practices
Test for FOR breach: Big M Drugs
1. Does purpose constitute infringement?
*Shifting purpose is rejected: what was the purpose when legislation enacted?: Big M Drugs
2. If purpose is okay, does the effect constitute infringement?
*Effect does not need to be religious effect: Does law become a state-imposed cost/compelled
interference with freedom of religion (not trivial or insubstantial)?: Edwards
Oakes test for justification under s.1: Edwards
1. Purpose must be “pressing and substantial”
2. Infringement must be proportional
a. Rational connection
b. Impair as little as possible (minimal impairment)
c. General proportionality (balance benefit of legislation against individual interests)
*Oakes test cannot be applied rigidly in non-criminal contexts because of complex social
policies, so must give a lot of deference to Parliament unless they are being unreasonable
Freedom of Expression (FOE)
s. 2(b): freedom of thought, belief, opinion and expression, including freedom of the press and other
media of communication
RJR MacDonald (1995) *Very criticized, not sure if it will stand up*
Does FOE include negative rights (freedom NOT to speak)?
Why we cannot rely on RJR changing Oakes test approach:
1. Although majority does not show much deference to leg, they still cite the principle, so RJR
might just be blip in application rather than intentional change in law
2. More recent decisions show more deference again
La Forest: can force expression because no one actually believes it is coming from cigarette company
-Don’t strictly apply Oakes because it might not be valid test for complex social issues
-Emphasizes core expression versus periphery (advertising of harmful products)
-Doesn’t give real protection to periphery because he doesn’t like it
-CCRF is not intended to protect the free market
McLachlin: company makes the packet so they have right to decide what goes on it (property right)
-If it is a form of constitutionally protected expression, cannot just give it less protection
because it is ‘periphery’: limit definition, but don’t ignore constitutional rights…
-Should value commercial expression (reads into CCRF to protect economic interests)
-Government must discharge BOP in s.1 justification (gov’t held back studies, very irritated)
-Arbitrarily draws a line of how much to ban, rather than deferring to legislature
Baier (2007)
-Leg says teachers cannot be elected to any school board (not just their own)
Court: Charter is about stopping the state from interfering with your conduct (negative rights), not
granting you access to platform to speak (positive rights)
Dunmore test: in limited circumstances a positive right is protected (unions)
1. Interest must be founded in the negative freedom itself, not in access to positive freedom
2. Exclusion must result from significant interference with the freedom, OR purpose must be to
restrict the freedom
3. The impairment to the freedom must be attributable to the government
-Baier fails at first stage because teachers are trying to gain access to platform (positive freedom)
Irwin Toy (1989)
-Legislation that restricts advertising to children is attacked
Court:
-Notes that ‘advertising’ is not really a core protected expression
-Breach, but justified under Oakes
-Allows lots of discretion to leg to decide complex social issue (apply Oakes very loosely)
-Waiting for bi-frication of Oakes (crim cases v. social policy cases)
Guignard (2002)
-Validates commercial advertising as important FOE when man with little resources is trying to counteradvertise about a bad company
Butler (1992)
-Is pornography protected under FOE?
Breach
-The simple choice or deciding to record the physical acts counts as expression
-In order to be ‘violent expression’ the expression itself must be violent (recording of a violent situation
does not amount to an act of violence)
“Prescribed by law”
-Don’t need “crystal clear” standard, just “intelligible standard” (ex. “undue exploitation of sex” is fine)
Oakes Test
1. Pressing and substantial purpose
-Avoidance of harm is pressing and substantial
-Enforcing morality is not pressing and substantial because of pluralities of this standard
-Shift from morality to harm looks like ‘shifting purpose’ in Big M…be careful
2. Proportionality
a. Rational connection: only requires reasonable inference, not strict scientific proof
b. Minimal impairment: does not need to be the least impairing, just minimally impairing
c. General proportionality: much more discretion given to legislature
*Contrast with RJR MacDonald: court accepts idea of ‘periphery’ FOE and does not apply Oakes strictly
Little Sisters
-Limiting expression of obscene materials is justified under s. 1 just as it was in Butler
-Could not strike down legislation because it could be applied constitutionally, so there was no adequate
remedy for plaintiffs because ‘declaration’ was not changing the way it was enforced
Sharpe (2001)
-Similar standards articulated as in Butler, but standards are applied differently
Majority
-Shows much less deference to court
-Says legislation is only constitutional if there are restrictions on it read in by majority: concerned that
freedom of thought and privacy might be infringed
-Less emphasis on core v. periphery distinction (all expression is constitutionally protected)
-Remedy: don’t strike it down, just read in the 2 restrictions
Dissent
-Show more deference to legislature to balance interests of harm v. personal privacy/expression
SUMMARY OF FREEDOM OF EXPRESSION
A. Adopt a highly inclusive definition of expression (anything with meaning is expression)
Exception: violent expression where the act of expression itself is violent: Keegstra
B. Test for FOE breach: Irwin Toy
1. Purpose
a. Does legislation restrict content of expression?
b. Does legislation restrict the form of expression, or the access to expression?
2. Effects—does legislation impair any of the 3 core values:
a. Political expression essential to democracy?
b. Expression that is essential to the pursuit of truth?
c. Valuable artistic expression?
*Quickly get beyond the breach stage because of the liberal definition of expression
C. Go to Oakes test for s.1 justification
-“Core v. Periphery” value of FOE: if not a core, apply s. 1 less rigorously: Butler
-The “core v. periphery” application was rejected in RJR and Sharpe
-“Prescribed by law” test only requires “intelligible standard”: Butler
-Shows deference to leg in Butler, but not in RJR or Sharpe
Equality
s. 15(1): Every individual is equal before and under the law and has the right to equal protection and
equal benefit of the law without discrimination and, in particular, without discrimination based on race,
national or ethnic origin, color, religion, sex, age or mental or physical disability
*Uses very specific language because BOR was criticized for being under-inclusive:
i. without “under the law”, it only protected procedure and not substance of law
ii. without “benefit” it only protected rights and not privileges
*Analogous grounds are not exhaustive
s. 15(2): The above section does not preclude laws, programs, or activities that have the objective of
ameliorating disadvantaged individuals or groups, including because of the above analogous grounds
s. 28: Gender equality
s. 35: Aboriginal rights are gender equal as well
THEORIES OF EQUALITY
1. Any distinction violates s.15
2. Distinctions between people “similarly situated” violate s.15: “like persons should be treated alike”
3. Irrational or unreasonable distinctions violate s.15
4. Distinctions on “the enumerated/analogous grounds” violate s.15
5. Distinctions which are purposefully discriminatory violate s.15
Andrews
-White male lawyer cannot work because of immigrant status?
-Equality = substantive equality, NOT formal equality: sometimes you need to treat people differently in
order to treat them equally
-Substantive equality is difficult to define
-Substantive equality looks at comparative rights, and often requires differential treatment (s.15(2))
-Substantive equality is concerned with effects of legislation, not legislative intent
-“Remedying the systemic discrimination suffered by discrete and insular minorities”
Andrews Test:
1. Distinction in treatment?
2. Enumerated grounds in s.15 OR analogous grounds?
-Usually the hardest branch to prove
-If claiming under enumerated grounds, almost guaranteed prima facie breach
-La Forest: analogous ground = immutable personal characteristic
-JW: inadequate definition (ex. Olympic athlete); ground must be irrelevant to ability (ex. race)
3. Distinction is discriminatory?
-Disadvantage imposed OR benefit withheld?
*Court did not want to include “relevance” requirement in test because it would place BOP on P and s.1
would be unnecessary
*Problem: Under this test, almost every claim was a breach and then had to justify everything under s.1
Law
-Widow cannot get benefits because she is too young and expected to find a job
-Recognized that Andrews Test is far too over-inclusive
-Discrimination does not equal disadvantage!
Discrimination requires:
a. human dignity component
OR
b. prejudice, stereotyping, and disadvantage
-Use subjective-objective test: what would reasonable person in P’s shoes feel?
Human dignity considerations:
1. Pre-existing disadvantage: “discrete and insular minority” or “historical disadvantage”
2. Relationship between grounds and treatment (relevance)
3. Ameliorative purposes: if this exists, do not engage s. 15(1) because s. 15(2) allows for it!
4. Nature of interest affected/severity of violation
Canadian Foundation for Children
-CCC provision allows parents and teachers to hit child, so clearly child’s right to equality is breached
-Problem: because everything is imported into s.15 analysis, court doesn’t even find a breach and there
is nothing left for s.1 analysis: BOP is almost entirely on plaintiff!
-Remedy: court takes judicial notice of this and allows reasonable inference to alleviate difficulty
-Stereotyping: treating people according to generalization of a group, rather than individual
characteristics (BUT court did this in Law because of her age and it was deemed okay)
-Unacceptable stereotyping:
a. perpetuating historical disadvantage
b. irrelevant to issue
c. blatantly incorrect
Kapp
-Explains the role of s. 15(2): allows state to correct historical discrimination
-Affirmative action is NOT discrimination: s. 15(1) and s. 15(2) are opposite sides of the same coin
-Once s. 15(2) is engaged: do not consider s. 15(1) and do not do Andrews Test
To satisfy ameliorative purpose:
a. ameliorative purpose only needs to be one of the purposes of the program
b. leg has a broad discretion for how closely ameliorative purpose links to the disadvantage
(only requires a rational connection)
-Abella: affirmative action should be generally accepted because many of people’s best rights come
from state action
-Moves away from Law discrimination test: “human dignity” is too general/abstract
Discrimination requires:
a. “perpetuation of disadvantage”
OR
b. “stereotyping”
-Human dignity is not rejected as an underlying value, and three remaining factors should be treated as
a guide to what discrimination is, rather than as a checklist of requirements
ABORIGINAL RIGHTS AND AFFIRMATIVE ACTION
s. 25: the guarantees in this Charter 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
*Do we avoid interpretations that abrogate Ab rights, but if unavoidable, charter wins?  Charter wins
*Do we bar interpretations that abrogate Ab rights?  Abs win
* Ab rights = collective rights VERSUS Charter = individual rights: Which rights prevail?
Bastrache: s. 25 bars interpretations that abrogate Ab rights
Bastrache: individual and collective rights are not necessarily in opposition
-Affirmative action model is not a good way of understanding unique Aboriginal rights because it implies
the right is not an “inherent, continuing right”, but rather a “remedy to correct a historical
disadvantage”
McLachlin/Abella: Ab right to fish is affirmative action because they did fish with Europeans, then were
excluded, and now we are correcting that historical disadvantage
Bastarche: no, we are re-instating an inherent, continuous right
Halpern
-Recognized same sex marriage
-Charter does apply to common law definition of marriage because legislation has been based on it
-Court presumes human dignity is at stake without even going through the test (JW: should do test)
-Good application of Law test: 1. Distinction; 2. Grounds; 3. Discrimination
-Difficult for court to use strict analysis of such a complex social institution (ex. marriage, citizenship)
because it does not have one purpose; fitting it into one box distorts it
*Real question court should ask is: are some members of society being unjustly excluded?
-Court does not simply admit they disagree with AG that marriage is not intrinsically heterosexual;
instead they emphasize that AG cannot prove it is intrinsically heterosexual
JW: court should just be candid so it can communicate effectively with the public
Remedy:
1. Marriage is too important to ‘strike it down’; rather ‘make it right’ by including SS couples
2. Operation of remedy is effective immediately
-JW doesn’t like the reasons they give for this, but says a good reason that should have been in
judgment is to not tell people their equality is being breached, but they must wait for legislative
action that may never come
Eldridge
-Deaf people not provided interpreters in hospitals
-Classic case where formal equality results in substantive inequality
*Which adverse affects is the government responsible for, and which are not their fault?
Held: government does not need to provide medical services, but once the government decides to
provide a service, they must provide it in a non-discriminatory way
Ex. Medical services = breach because analogous ground is tightly tied to the discrimination, but parking
fee at provincial park = no breach because income inequality not analogous ground
SUMMARY OF INEQUALITY
Test: Andrews
1. Distinction in treatment?
2. Enumerated grounds in s.15 OR analogous grounds?
3. Distinction is discriminatory: disadvantage imposed or benefit withheld?
Discrimination guidelines:
A. “perpetuation of disadvantage”: Kapp
B. “stereotyping”: Kapp
Unacceptable stereotyping: Canadian Foundation for Children
a. perpetuating historical disadvantage
b. irrelevant to issue
c. blatantly incorrect
C. “human dignity at stake”: Law
1. Pre-existing disadvantage: “discrete and insular minority” / “historical disadvantage”
2. Relationship between grounds and treatment (relevance)
3. Nature of interest affected/severity of violation
* Ameliorative purposes: if this exists, do not engage s. 15(1) because s. 15(2) allows for it: Kapp
To satisfy ameliorative purpose:
a. ameliorative purpose only needs to be one of the purposes of the program
b. leg has a broad discretion for how closely ameliorative purpose links to the disadvantage
(only requires a rational connection)
* If government undertakes social action, must to do in a non-discriminatory fashion: Eldridge
Section 7: Life, Liberty, and Security of the Person
s. 7: Everyone has the right to L, L, and SP and the right not to be deprived thereof except in accordance
with the principles of fundamental justice (PFJ)
Reference re CCC
JSM: individual liberty can only be restrained if it infringes others’ rights
Wilson: you have the right to pursue a profession, but no right to pursue other work
Lamer (dissent): grouped with ‘legal rights’ that exist in adjudicative process, so not limited to criminal
context, but limited to rights that arise within the administration of justice (procedural)
Gosselin
-Legislation reduced welfare benefits payable to young recipients to encourage workfare instead
-Court clearly rejects s. 7 argument for lack of evidence
1. s. 7 is about administration of justice, but leave open availability for other uses (ex. parents’ rights
with respect to medical treatment or custody of their children, state imposed rehab)
2. Court does not rule out or affirm question of whether state owes positive right to supply economic
support
Chaoulli
-Totally outside of administration of justice: substantive design of HC system
*The ‘majority’ result is not conclusive wrt s. 7 because Deschamps did not discuss CCRF!
Deschamps:
-Strikes down leg based on QCRF, not CCRF
-Do not need causal relationship between long waiting times and buying private HC
JW: How can you have breach when don’t need to prove inviolability of the person?
JW: Plaintiffs were not even on waitlists
-3 provinces have private HC, so there are less impairing methods
JW: She does not even evaluate the quality of these schemes
-Government is monopolizing HC, then not providing it in a timely fashiononus is on government to
prove this is minimally impairing, not on plaintiff to prove private HC will be better!
JW: Her reasoning does not reconcile this inadequate analysis
-Only need to show deference when there is not full evidence before the court
JW: She shows little deference to parliament about a complex social scheme
JW: She has far too simplistic reasoning (disagreed with Kirby report and TJ facts)
McLachlin/Major/Bastrache:
-Strike down leg based on QCRF and CCRF
-Agree with Deschamps’ conclusion, but not her reasons (too simplistic)
-Presuppose that private access would improve access to public system, and it would exist in absence of
mandatory public system
JW: They do not adequately consider the effect there would be on public system
-No freestanding right to HC exists
JW: They are really saying “you have a right to use your resources to purchase HC”
JW: They are coloring a private property rights issue
JW: Only public system is subject to Charter scrutiny, so private system gives no protection
-“Security of the person” requires “significant and adverse psychological effects” from waitlist
-Breaches of “Fundamental justice” includes rules that are “arbitrary”
JW: The sources they rely on (Kirby) do not support their conclusion
Binnie/Lebel:
-Uphold legislation
-“Security of the person” requires “more than ordinary anxieties and rectitude of life” (high threshold)
-Thinks Mc/Mj/Bs threshold is too vague because what is an “unreasonable wait time”?
-“Liberty” does not include right to contract/employ your property (underhanded swipe at majority)
-Breaches of “Fundamental justice” would require the “arbitrariness” to actually be inconsistent with
the aim, otherwise leave rules to deference of parliament rather than second-guessing policy issues
-“Principles of fundamental justice” require:
1. Legal principle
2. Consensus: rooted in some kind of grounding in society (legal society)
JW: skeptical that such a thing exists
3. Fundamental to operation of legal system
4. Must result in manageable standard
SUMMARY OF S. 7: LIFE, LIBERTY, AND SECURITY OF PERSON
1. Is claimant’s right to life, liberty, or security of the person violated by govt legislation or action?
a. Baseline definition: “rights that arise within the administration of justice”: Reference re CCC
b. Bin/Lebel definition: “more than ordinary anxieties and rectitude of life”: Chaoulli
c. Mc/Mj/Bs definition: “significant and adverse psychological effects”: Chaoulli
2. Was the right violated in accordance with principles of fundamental justice?
a. Mc/Mj/Bs definition: “arbitrary” rules breach PFJ
b. Bin/Lebel definition: “arbitrary” rules only breach PFJ if they are actually inconsistent with the
aim of the legislation:
“Principles of fundamental justice” require:
1. Legal principle
2. Consensus: rooted in some kind of grounding in society (legal society)
JW: skeptical that such a thing exists
3. Fundamental to operation of legal system
4. Must result in manageable standard
3. Can the breach of L,L, and SP be saved by s.1?
*Hard to justify under s. 1 if the breach did not conform with PFJ!
Aboriginal Rights in Constitution
s. 35: the existing aboriginal and treaty rights are hereby recognized and affirmed
*s. 35 is not part of the Charter, so s. 1 does not apply to it!
JW: s.35 is not about limiting government, rather about how Abs can control and administer their
territories (more like division of powers than Charter protections)
JW: still very unclear what s. 35 applies to (ex. what does “existing” mean?)
HISTORY
-Ab rights were respected in history with many treaties, etc
-19th century Europeans adopted a paternalistic approach which basically eliminated substantive rights
(ex. Indian Act)
-White Paper: Abs did not want to ‘be treated the same’ because they wanted to keep identity
Sparrow
-Abs won right to fish for food, but not commercially
-“Existing”= rights that have been established as a result of history of interaction
i. interpreted in generous fashion
ii. interpreted from Ab perspective
iii. not frozen in time
-“Extinguishment” requires:
i. “clear and plain legislative intent”, not just inconsistency in laws
ex. If legislation might limit Ab right, the legislation should be interpreted narrowly
-“Recognized and affirmed” = constitutional protection, but rights are not absolute
Ab right can be regulated if:
i. Compelling legislative objective?
ii. Link between legislative aim and the measure of infringement:
a. minimal impairment?
b. compensation?
c. consultation?
Van Der Peet *Very criticized*
-Argument that commercial fishing rights on the basis that fish were traded heavily
“Integral to culture” Test:
1. Must be a practise, custom or tradition (PCT) integral to distinctive culture of the group
2. The PCT must have existed pre-contact
3. Must be continuity with PCT that existed prior to contact, but this is not absolute
4. Ab right must be specific to each people, can’t be general to all groups
Criticisms:
1. Specific nature of right
-The more narrowly you define a right, the less able you are to apply right to contemporary uses
2. Emphasis on cultural component
-Are there no Ab rights with simple economic components?
-Also freezes Ab rights in the past
3. Date of origin as pre-contact
-Practices that arose as response to European contact do not meet standard (ex. fur trade)
-Do Metis have no Ab rights because they arose post-contact?
Delgamuukw
*Ab rights and Ab title (does not require cultural element) are different and require different tests
*Conclusion: negotiate with government because Ab rights don’t fit well into legal tests
Temporal element:
i. Ab rights = pre-contact (still use Van Der Peet test)
ii. Ab title = pre-assertion of sovereignty (1846)
iii. Metis rights = when effective government control is exerted over particular Metis nation
Nature of Ab title (sui generis):
i. Inalienable: can only be sold back to the Crown, not to private parties
ii. Sources: must account for CL (possession) and Ab (pre-existing systems of land-holding)
perspectives
iii. Communal: this was less so for West Coast Abs
Proving Ab title requires:
i. Occupation pre-sovereignty at 1846 (not just pre-contact)
ii. Continuity between pre-sovereignty occupation and present occupation (substantial
maintenance of connection, but can be temporarily displaced and is actually a fairly loose
requirement)
iii. Exclusive occupation: can be shared exclusion, but no trespassers
Ab title gives you:
i. Exclusive use and occupation for purposes that go beyond the exercise of particular Ab rights
ii. Subject to the inherent limit that the land not be used in ways that sever the traditional bond
between land and people: equitable waste analogy
Ab title can be infringed by Sparrow Test
Ex. Economic development, building infrastructure, pipes/electricity, settlement of foreign
populations, environmental regulation, etc
*Provincial governments cannot infringe right
Haida
-Determines the duty Crown owes to Abs before title has been established
1. Duty to consider it a reasonable claim and take Ab interests into account when Crown has real or
constructive knowledge of the claim
i. must consult and sometimes accommodate, but no veto power
ii. do so in accordance with ‘honour of the Crown’
iii. fiduciary duty is only required in very unique cases, because requires Ab interests to be put
above everyone else’s, which represents a conflict of interest for the government (represent
everyone)
2. Assess the above on a sliding scale:
i. how strong is unproven Ab claim?
ii. how much does interference threaten Ab interest?
3. Obligation to consult is owed by:
i. Federal government
ii. Provincial governments
ii. NOT by private parties
WEBBER’S INSIGHTS ABOUT ABORIGINAL RIGHTS IN CONSITITUTION
1. Duty to consult: Haida
*Negotiation is the best way to deal with Ab claims
2. Sovereignty of the Crown
Sparrow: Crown sovereignty is the accepted baseline
Delgamuukw: considers reconciling Crown sovereignty with prior Ab rights
Haida: considers pre-existing Ab sovereignty that was trumped by asserted Crown sovereignty
*Generally warming to the idea that Crown sovereignty is not something to take for granted,
and must question very fundamental constitutional issues through negotiation
3. Aboriginal title is not primarily a property interest
JW: rather than closed right concerned with internal structure and fitting into CL definition of
property rights, Ab title is about relationships between social orders that run up against each
other and each have their own internal structure (like entire territorial right of a state)
4. Law of the Interface
JW: Abs don’t want CL type property rights
JW: Complex relationship because Abs also fit within Canadian society: independent?
JW: Abs want full ownership of their lands so they can govern them as they please: more like a
claim to an independent form of government
5. Ab rights are no more in conflict with individual rights than CL is
JW: All individual rights must fit within an existing structure of law, and they type of law will
determine what type of rights you have (ex. Civil in Quebec, CL in BC)
JW: Aboriginal rights are best conceived in the same way - as providing contexts in which
Indigenous norms and Indigenous normative languages can serve as the medium for regulating
certain matters
JW: that that does not necessarily put into question the protection of individual rights, any more
than the variation between provinces does in areas of provincial jurisdiction.
JW: Ab rights are better compared to Federalism than Equality: it is better for Abs to be able to
govern their own norms and traditions in an independent system, or to be ‘equal’ under a
system that does not reconcile with their identity? Equality is not everything!
SUMMARY OF ABORIGINAL RIGHTS IN CONSITUTION
1. Aboriginal rights: Van Der Peet
“Integral to culture” Test:
1. Must be a practise, custom or tradition (PCT) integral to distinctive culture of the group
2. The PCT must have existed pre-contact
3. Must be continuity with PCT that existed prior to contact, but this is not absolute
4. Ab right must be specific to each people, can’t be general to all groups
2. Aboriginal title: Delgamuukw
Proving Ab title requires:
i. Occupation pre-sovereignty at 1846 (not just pre-contact)
ii. Continuity between pre-sovereignty occupation and present occupation (substantial
maintenance of connection, but can be temporarily displaced and is actually a fairly
loose requirement)
iii. Exclusive occupation: can be shared exclusion, but no trespassers
Ab title gives you:
i. Exclusive use and occupation for purposes that go beyond the exercise of particular Ab
rights
ii. Subject to the inherent limit that the land not be used in ways that sever the
traditional bond between land and people: equitable waste analogy
3. Regulation of Ab rights and Ab title: Sparrow
i. Compelling legislative objective?
ii. Link between legislative aim and the measure of infringement:
a. minimal impairment?
b. compensation?
c. consultation?
4. Duty to consult before claim is proven: Haida
1. Duty to consider it a reasonable claim and take Ab interests into account when Crown has real
or constructive knowledge of the claim
i. must consult and sometimes accommodate, but no veto power
ii. do so in accordance with ‘honour of the Crown’
iii. fiduciary duty is only required in very unique cases, because requires Ab interests to
be put above everyone else’s, which represents a conflict of interest for the government
(represent everyone)
2. Assess the above on a sliding scale:
i. how strong is unproven Ab claim?
ii. how much does interference threaten Ab interest?
3. Obligation to consult is owed by:
i. Federal government
ii. Provincial governments
ii. NOT by private parties