State & Citizen Winter Summary
Division of Powers Summary
1. ORIGINS AND FEATURES OF CANADIAN FEDERALISM
1867 Act: federal features
 two levels of independent, autonomous government
 each with exclusive powers [ss.91 & 92, but others are in s. 93-95]
 jurisdiction entrenched [Colonial Laws Validity Act, 1865], s. 52 of Constitution Act, 1982
 Federal and provincial governments cannot unilaterally expand their power, entrenched by Constitution;
changing the division of legislative power requires going through amendment procedures, general section is
s. 38 – the 7/50 amending formula
 Assumption in 1867 Act was that Privy Council was the final court of appeal and would have responsibility
for interpreting statutes
 limits to be policed by neutral arbiter (judiciary)
1867 Act: centralizing features
 greater importance of federal legislative powers (Stevenson 81-3)
 greater federal taxing powers [s.91(3)]
 federal powers of disallowance and reservation [ss.55-6, 90] (but not really anymore)
 federal appointment of LGs [s.58]
 federal appointment of provincial superior court [s.96] and federal court (including SCC) judges [s.101]
 but federalism would require a neutral arbiter/equal involvement in selection of arbiters
 federal power to restore denominational school rights [s.93(4)]
 federal declaratory power [s.92(10)(c)]
 fathers of confederation thought provinces would not have large, significant power but only power over
local issues, that has not turned out to be true
 phrase “property and civil rights” has turned out to be enormous, it includes virtually all private law
including family law, employment and labour law, regulation of business activity and professions; number
of matters that have been allocated to provinces has been vast
 legislative jurisdiction over natural resources also given to provinces, as Stevenson describes fathers of
confederation thought development of natural resources would not be significant
 taxing powers – provinces given jurisdiction nof direct taxation only, no income tax at time, taxing powers
of provinces have been expanded greatly
Evolution of federalism
 most quasi-federal elements of constitution have been rendered unimportant or illegitimate by
constitutional convention
 Canadian constitutional law is quasi-federal; Canadian constitutional practice is federal
 example of hierarchical relation b/w federal government and provinces is the power of disallowance;
writers didn’t envision severance of ties with imperial government but a continuing hierarchical relation
b/w London and Ottawa; replicated colonial vision in way they imagined relation b/w Ottawa and
provinces – expected them to be subordinate not coordinate in certain important respects
 by law, provinces not autonomous when it comes to law making powers, but are subject to federal
disallowance; now constitutional convention that disallowance power will no longer be used but it could
be; no legal objection to its use
 power and autonomy of provinces has expanded greatly and become much more secure
 great historical irony as drafters of constitution sought to create a much stronger central government than in
US
 but in practice we adhere to federal system
Municipal Governments
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Constitution allocates municipalities to provincial legislatures, all municipalities exercise delegated
authority; very much a hierarchical relationship
Federal Government and Territories
 creatures of federal statute
 federal govt possesses exclusive jurisdiction over territories, they have no guaranteed constitutionally
protected power
 could argue there is a de facto relationship and although legally the territories are in a very different
position to provinces, practically they are in the same position as delegated authority looks the same as
provincial powers
Aboriginal relation to Government
 Aboriginals not a consideration during Confederation, 1867 Act created capitalist monarchy, product of
privileged white men, not creating a democracy in any meaningful sense, right to vote only possessed by
powerful white men, hierarchical relation not intended to be altered in any way
 still a paternal relationship, but inroads in terms of own policing etc through treaties and policy changes, for
example s. 35 of Constitution Act, 1982
 transitional moment from thinking of Canadian federalism as embodying two levels of government to three
levels
See LEDERMAN PAPER CB 274-275 FOR WHATS GOING ON!
2. PRINCIPLES OF INTERPRETATION
Quasi-federal aspects of CA 1867:
1. Power of Disallowance: feds can veto of provincial laws within one year of it coming into force.
2. Power of reservation and power to appoint LGs of the provinces: Lieutenant Governors have the power
of reservation, to withhold royal assent. Power has not been exercised for 35 years.
3. Power to appoint Superior Court judges and SCC: Problematic if one party to federalism disputes is
choosing the referee.
4. Power to restore denominational, education rights: federal government has the power to restore rights if
removed by the provinces. (Allows interference with provincial matters.)
5. Declaratory Power: enables the feds to unilaterally declare local words and undertaking to be for the
general advantage of Canada. (clear violation of federalism). Legally unconstrained, but politically
illegitimate.
Characterization of Laws:
3 Steps:
1) Identification of the “matter” of the statute (look to purpose + effects)
2) Delineation of the scope of competing classes
3) Determination of the class into which the challenged statute falls.
Colourability Doctrine: legislation is “colourable” when the courts determine that on its fact the legislation
addresses a matter within its jurisdiction, but in p/s it is directed at matters outside its jurisdiction
 SCC ruling in Morgentaler follows the spirit of the colourability doctrine (even though Sopinka J.
disclaimed reliance on the doctrine), b/c the Court held that the statute’s health care trappings were a
disguise of its true p/s which was the punishment of abortion on moral grounds
Concurrency: situations where both the federal govt and the provinces have power to enact laws in relation to a
particular subject matter
 only a few power are expressly concurrent: export of natural resources (s.91(2) and 92A(2)); old age
pensions (s. 94A); agriculture (s.95); and immigration (s.95)
 double aspect doctrine operates to create areas of de facto concurrency (as do, to a lesser degree, p/s
doctrine and necessarily incidental doctrine)
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Double Aspect Doctrine: “subjects which in one aspect and for one purpose fall within s. 92, may in another aspect
and for another purpose fall within s. 91” (Hodge 1883 PC)
 the doctrine is applied when “the multiplicity of aspect is real and not merely nominal” (Bell Canada #2)
AND
 “when the federal and provincial features of the challenged rule are of roughly equivalent importance”
(Lederman quoted in Multiple Access)
 results in areas of de facto concurrent legislative jurisdiction (ex. highway traffic offences; insider trading
in securities of federally incorporated companies: Multiple Access; regulation of toxic substances: Hydro
Quebec)
 Modern interpretive practice has both extended the application of the double aspect doctrine in some areas,
and curtailed its application in others.
o OPSEU (1987, SCC): Dickson takes a generous approach to DA
o Bell Canada #2: Beetz stated that DA doctrine “ought to be applied only w/ great caution”
Dynamic interpretation: CA, 1867 is “a living tree capable of growth and expansion within its natural limits”
(Edwards v. AG Canada – “persons case”)
 constitution should not be frozen in time by using the intentions or attitudes of the framers as a guide to
interpretation
 theory of “originalism” officially rejected for a long time (Same-Sex Marriage Reference)
 DI does not mean that Parliament or the provincial legislatures are free to expand their legislative powers as
they see fit. The principle of federalism requires legal limits on the jurisdiction of each level of
government. The powers in the constitutional text have “natural limits” and it is the responsibility of the
courts to identify them. To determine the outer limits of a constitutional power, courts examine the text and
history of a power to determine its “essential elements”, and then ask whether its expansion to embrace
new matters is consistent with both these essential elements and with evolving social realities. (Same Sex
Marriage Reference; Employment Insurance Reference)
Exhaustiveness: holds that the totality of legislative power is distributed by the Constitution Act, 1867 between
the federal Parliament and the provincial legislatures; it follows that a subject matter that is not within the
jurisdiction of one level of government must be within the jurisdiction of the other level of government
 after the entrenchment of Aboriginal and treaty rights by the Constitution Act, 1982, the exhaustive
distribution of legislative power in the 1867 Act between federal and provincial governments is now
supplemented by Aboriginal legislative powers:
 specifically, if Aboriginal self-government is given recognition in the form of a treaty (as in the case of
the Nisga'a treaty), or was integral to a distinctive Aboriginal culture at the time of contact with
European settlers, and it has not since been fully extinguished by the Crown, then it is now a right
protected from federal or provincial incursion by s.35(1) of the Constitution Act, 1982 -- see the test for
Aboriginal rights set out in Van der Peet, SCC 1996, cb545
 most Aboriginals nations have not completed self-govt treaties w/ the Crown;
Exclusivity of powers: Each level of government has exclusive power to pass laws that are in pith and
substance in relation to the classes of subject listed in its heads of power in sections 91 through 95 (with the
exception of the concurrent powers mentioned above under concurrency).
Interjurisdictional Immunity: matters at the core of federal heads of power are immune from (cannot be
touched by) the operation of provincial statutes, even though those statutes are otherwise valid (i.e., in pith and
substance in relation to a subject matter within provincial jurisdiction): see Bell Canada 1988 SCC
 Beetz J. in Bell Canada, "works, such as federal railways, things, such as land reserved for the Indians,
and persons, such as Indians, who are within the special and exclusive jurisdiction of Parliament" are
immune from the application of provincial laws that touch upon federal subjects "in what makes them
specifically of federal jurisdiction." (cb247)
 result is that the general terms of the provincial statute are "read down" so as not to apply to matters at
the core of federal jurisdiction
 in the case of federally-regulated undertakings, provincial laws that apply directly to those undertakings
will be read down so as not to touch upon vital or essential parts of their management (Bell Canada)
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provincial laws that have an indirect impact on federal undertakings, on the other hand, will only be
read down if they have the much more serious effect of impairing, paralyzing or sterilizing the viability
of the undertaking ( Irwin Toy, SCC 1989, cb253, note 5)
an exception to the usual operation of the pith and substance doctrine
curiously IJI doctrine has been applied only to federal heads of power, and even then only to tangible
federal subject matters such as federally regulated persons, places and undertakings; the doctrine has
never been invoked to protect the exclusivity of the federal criminal power
recently the Supreme Court of Canada has applied the doctrine to federal jurisdiction over maritime
negligence law, holding that provincial negligence statutes have to be read down to protect maritime
negligence law as a core element of federal jurisdiction over navigation and shipping: see Ordon Estate
v. Grail 1998 cb35)
Large and liberal interpretation: The courts have said that a large and liberal, or generous, interpretation
should be given to both provincial and federal heads of power (Same-Sex Marriage Reference; Employment
Insurance Reference).
• Coupled with the presumption of constitutionality (see below), the result of this generous approach to the
interpretation of the scope of legislative powers is a pronounced pattern of judicial restraint when adjudicating
challenges to the validity of statutes on federalism grounds.
•For example, SCC last found a provincial statute ultra vires in Morgentaler 1993; one must go back another
decade, to the early 1980s, to find an example of a federal statute declared ultra vires by the Supreme Court.
Necessarily incidental a corollary of the pith and substance doctrine is that a provision of a law that intrudes on
the other level of government's areas of exclusive jurisdiction may nevertheless be valid if it is sufficiently
integrated into a larger scheme of regulation that is constitutionally valid; in that case, the provision is said to be
"necessarily incidental" to the valid scheme: see GM v CNL 1989 SCC cb225
Paramountcy doctrine: when a valid federal law and a valid provincial law apply to the same facts, and the
requirements of the two laws are conflicting in the sense that it is impossible to comply with both, the federal
law is paramount: see Multiple Access 1982 SCC
 the effect of the paramountcy doctrine is that the federal law prevails; the provincial law is rendered
inoperative (not invalid; not inapplicable) to the extent of the inconsistency; provincial law will come
back into force if conflicting federal law is amended or repealed
 the impossibility of dual compliance test is the most narrow definition of conflict for the purposes of the
paramountcy rule, and it is the most frequently applied approach
 however, in B. of M. v. Hall, SCC, while paying lip service to Multiple Access, adopted a broader
definition of conflict, one that focuses on the compatibility of the provincial law with the purposes of
the federal law (see cb267-8)
 is now settled that conflict for the purposes of the paramountcy doctrine may arise from either (i) an
impossibility of dual compliance; or (ii) frustration of a federal legislative purpose by the provincial law
(Law Society of BC v. Mangat; Rothmans, Benson & Hedges Inc. v. Saskatchewan).
Pith and substance doctrine: the dominant characteristic of a law is its "matter" for the purposes of
classification within one of the heads of power ("classes of subjects", i.e types of laws) in the constitution
 the courts determine the pith and substance of a law by examining both its purpose and its effects;
 examination involves a consideration of the text of the law, the previous state of the law, the legislative
history of the law, the operation of the law, and any extrinsic evidence (e.g. background papers,
empirical studies on the impact of the law) that sheds light on the real purpose and actual effects of the
law
 a law is "in relation to" its "matter" or "pith and substance"; the other non-dominant characteristics of a
law are "merely incidental", irrelevant for the purposes of constitutional classification
Presumption of constitutionality: In division of powers cases, the enacting body is presumed to have intended
to enact provisions which do not transgress the limits on its powers imposed by ss.91-95 of the Constitution Act,
1867.
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The principle is most often cited alongside the proposition that the courts, when faced with competing
interpretations of a statute, should choose the interpretation that renders the statute intra vires (Husky
Oil)
The principle is sometimes cited alongside the notion that a party challenging legislation on division of
powers grounds is required to show that the legislation does not fall within the jurisdiction of the
enacting legislature (Firearms Refernce).When cited in this way, it is not always clear what additional
burden, if any, the presumption adds to the burden of proving his or her case on the balance of
probabilities that every civil claimant confronts. Yet claimants challenging the validity of statutes in
division of powers cases are rarely successful. The presumption of constitutionality does seem to add
measurably, if imprecisely, to their burden.
The presumption of constitutionality does not apply in Charter cases. In the words of Beetz J., “the
innovative and evolutive character of the Canadian Charter of Rights and Freedoms conflicts with the idea
that a legislative provision can be presumed to be consistent with the Charter.” (Manitoba v. Metropolitan
Stores)
Three types of challenges to a statute:
1. Validity (ultra vires) (Pith and Substance; Necessarily Incidental; Double Aspect)
Morgentaler (validity of the legislation must be tested according to the particular characteristics of the
head of power that is said to support it)
2. Applicability (Interjurisdictional Immunity)
McKay v The Queen; Bell Canada #2
3. Operability (Paramountcy doctrine)
Multiple Access; Bank of Montreal v. Hall
- You cannot apply subsequent challenges unless the statute can withstand the previous argument. (i.e. a
valid statute may be inapplicable, but not vv)
- Federal statutes can only be challenged on the grounds of invalidity
1. VALIDITY
Is the statute in relation to a matter falling within the classes of subjects allocated to the enacting level of
government’s jurisdiction? Follow 3 step process:
1. Identify the Matter (p/s) of a Statute (dominant characteristic)
a. Courts consider the purpose and effect of the statute
b. Consider text, legislative history, previous state of law and extrinsic evidence
2. Define the scope of the competing heads of power (or “classes of subjects”) within which the matter might
conceivably fall.
a. Consider scope of ss. 91 and 92 and judicial precedents that have given meaning to the words used in
the ss.
3. Then the court can allocate the “matter” to the proper head of power (thus determining whether the statute
is ultra vires or intra vires the enacting legislative body).
a. Consider Necessarily Incidental and Double Aspect (DA has been applied to: highway traffic; insider
trading in securities of federally incorporated companies (Bell #2); toxic substances (Hydro Quebec)
b. Remedy: declaration of invalidity pursuant to s.52 CA, 1982, in whole or in part (severance)
c. A statute is struck down (severed) as being ultra vires, to the extent that it is inconsistent, either in
whole or in part (ct may invalidate severable and offending part of statute and declare that part to be
of no force or effect; remaining part must be coherent for it to remain valid).
Note:
 value-laden process
 inquiry into purpose turns in part on judicial attitudes of deference to legislatures and concerns about
balance of power in federal system
 because (2) has usually been settled by past precedents and (3) is a mechanical step, the constitutionality of
a law in practice almost always turns on (1)
o Morgentaler: federal power over criminal law includes power to prohibit activities on moral,
religious, or health grounds; s.92(13) "property and civil rights" and s.92(16) "all matters of a
local or private nature" have been interpreted as giving the provinces jurisdiction over the
regulation of heath care and health professions
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R. v. Morgentaler (1993 SCC) (cb 277)
Facts: Challenge to validity of Nova Scotia’s Medical Services Act which made it an offence to give 9 medical
services outside of province’s hospitals, including abortions.
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province: intra vires; relied on power to make laws in relation to hospitals [s.92(7)], the medical profession
[s.92(13)], and health [ss.92(13) and (16)]
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Morgentaler: ultra vires; punitive regulation of abortion, thus ultra vires as an invasion of exclusive federal
jurisdiction to pass criminal laws [s.91(27)]
Issue: Whether the purpose of the legislation is to control the quality and nature of the province’s health care system
or to suppress/punish what it perceives to be the socially undesirable conduct of abortion.
Decision: The p/s of the Act is the punishment of abortion as a social wrong; the Act is invalid (ultra vires) as an
invasion of the federal criminal law power.
 Even though Act has a significant impact on the performance of medical services, regulation of hospitals
and medical profession, the dominant characteristic of the Act is the punishment of abortion so it is ultra
vires as an invasion of the federal government’s jurisdiction over criminal law;
 Sources relied on by Sopinka J:
o timeline (abortion law struck down, M announces clinic, NS in effect re-enacts prohibition)
o legislative debate; no coherent intra vires rationale for statute (why those 9?); look at Hansard
record for evidence of what the law was about
o penalties (not determinative, but factor showing this is attempt to seriously punish conduct)
o statute overlaps with subject matter that had long been part of criminal law (determinative factor)
 Colourability doctrine invoked (defined in Firearms Reference) but rejected by Sopinka J. as not relevant
to his analysis – ignore comment, maybe dislikes label b/c requires openly saying legislature is trying to
trick us; arguable classic ex.
Ratio: In determining the p/s of a law, form does not control substance, though formal packaging is often helpful, it
sometimes conflicts w/ other evidence of what p/s is, so form should not be treated as comprising substance. Where
the impugned statute is in p/s in relation to a matter that does not fall within that level of government’s jurisdiction it
will be declared invalid, despite the fact that the legislation may have significant impact on matters within that level
of government’s jurisdiction.
Note:
 Result is not that province cannot regulate abortion but that province cannot pass laws that are in pith and
substance about matters that fall w/in federal jurisdiction
 Recall: presumption of constitutionality in division of powers cases; challenger must displace presumption
 last time provincial legislation was nullified on division of powers grounds
 Contrast with Walter v AG Alberta where court upheld Alberta legislation that strictly regulated communal
ownership; enacted in response to public hostitility to Hutterites who held land communally in accordance
w/ religious beliefs; challenged on basis that dominant characteristic was punishement of religious
minority; court upheld law as in p/s in relation to regulation of property by focusing on legislative text and
not at all on history, social facts
NECESSARY INCIDENTAL (cb 288)
A provision of a law that intrudes on the other level of government's areas of exclusive jurisdiction may nevertheless
be valid if it is sufficiently integrated into a larger scheme of regulation that is constitutionally valid; in that case, the
provision is said to be "necessarily incidental" to the valid scheme. Corollary to pith and substance doctrine.
G.M. v. City National Leasing (1989 SCC) (cb 289)
Facts: CNL alleges GM had discriminatory pricing policy and initiates civil suit under s.31.1 of the Combines
Investigation Act; GM challenges validity of the civil remedy provision (s.31.1) of the Act ; creates statutory tort
which falls w/in prov. jurisdiction
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tort law is a matter of property and civil rights in the province [s.92(13)] (now understood as dealing with
anything formerly in civil code)
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Act as a whole is in relation to the general regulation of trade [s.91(2)]
Issue: is the impugned provision ultra vires or is it sufficiently well-integrated into, or necessarily incidental to, the
scheme as a whole?
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Decision: s. 31.1 upheld unanimously as necessarily incidental to purpose of the Act (plays important role
supporting scheme of public, national regulation set out in Act as a whole) and thus intra vires federal jurisdiction
per 91(2).
Three part test:
1. Does the impugned provision intrude into the powers of the other level of government, and if so to what
extent? (if not, only question is validity of the act).
 Yes, but provision is a remedial one and federal encroachment in this manner not
unprecedented and in this case encroachment is limited by restrictions of the act
2. Is the act (or a severable part of it) valid? If not, end of inquiry.
 Act is valid.
3. Is there a sufficiently close relationship between the provision in question and the valid legislative scheme
that it can be upheld by virtue of that relationship?
a. The closeness of the connection required between the provision and the act increases as the
infringement into the other government’s jurisdiction increases (see cb 290)
i. May need a strict test: is the impugned provision “truly necessary” or “integral” to
achieving the Act’s objectives (highly intrusive); or
ii. less strict “functionally related” test: does it have a rational/reasonable connection to
legislative scheme as a whole?
(Not enough that section is merely tacked on to valid legislation )
 Correct approach is functionally related test; the necessary link b/w s.31.1 and Act exists
(Dickson says even if stricter test applied, it would pass)
(Also meets five indicia set out by Dickson for GRT power)
Ratio: When the issue is not whether the whole Act is ultra vires, but merely a portion of the Act, the question
becomes whether a particular provision is sufficiently integrated into the Act to sustain it constitutionality.
Note: If you don’t pass necessarily incidental, but it was intrusive, you could sever the provision from the scheme.
If however, the scheme can’t stand on its own without the provision  the whole scheme fails
Global Securities Corp. v. British Columbia (Securities Commission) (2000) (cb 294)
Facts: Challenge to s. 141(1)(b) of BC Securities Act which allows the Commission to make orders requiring
brokers registered in the province to produce records in their control to assist in administration of securities laws of
another jurisdiction. BCSC ordered Global Securities to produce records in its possession, company refused and
sought declaration that section was in p/s in relation to enforcement of foreign laws and thus ultra vires.
Decision: impugned provision is in p/s part of a reciprocal arrangement in relation to the uncovering of violations of
local securities laws, and thus w/in provincial jurisdiction over “property and civil rights”
*** Iacobucci J. stated that even if provision was found to lie outside provincial jurisdiction due to pith/substance, it
would be saved by necessarily incidental doctrine articulated in GM v. CNL.
R. v. Morgentaler (1975, SCC)
Facts: challenge to therapeutic abortion provision of Criminal Code (s. 251).
Decision: s. 251 upheld as valid exercise of federal criminal law power even though it had a substantial impact on
hospitals, health care professionals, and local health matters (all matters within exclusive provincial jurisdiction
pursuant to ss.92(7), (13) and (16) respectively), because the dominant characteristic of s.251 was the restriction of
access to abortion on moral grounds; the impact of the law on provincial subject matters was "merely incidental", or
constitutionally irrelevant.
DOUBLE ASPECT DOCTRINE
Established DA subject matters: trading in securities, regulation of legal rep. in immigration matters, highway
traffic, moral regulation of films, nude dancing, gaming, temperance, support and custody in divorce, interest rates,
insolvency (cb 300).
Multiple Access (1982 SCC) (296)
Facts: challenge to the ability of Ontario legislation (Securities Act) to regulate alleged insider trading on the TSE of
shares in federally incorporated companies. Insider trading also regulated by federal Corporations Act. Both have
almost identical provisions applicable to federally-incorporated companies; insider challenge b/c limitation period.
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Decision (Dickson): Both statutes are valid; both can apply and operate; insider trading in the shares of federally
incorporated companies has a “double aspect” – federal companies law and provincial securities law.
 Insider trading in the shares of federally incorporated companies within a province is a double aspect
matter that can be regulated by the provinces under 92(13) and by the federal government under pogg
power in s.91 (gap branch).
 If the federal feature is deemed unimportant relative to the provincial feature, then only the provincial
government has power to enact the challenged law
 If the provincial feature is deemed unimportant relative to the federal feature, then only the federal
Parliament has power to enact the challenged law
 If both laws are of roughly equal importance, so that neither should be ignored, the decision is made that
the challenged law could be enacted by either the federal or the provincial legislature (SCC using
Lederman – reprinted cb 295-296)
o If the two rules call for different courses of conduct:
o If courses do not conflict, both laws may operate
o If courses conflict, then paramountcy doctrine is applied, so the provincial law is
inoperative to extent of conflict and federal rule prevails
Dissent: federal provisions invalid b/c the dominant feature is the regulation of securities transactions, which falls
within provincial jurisdiction over property and civil rights, and not the regulation of the functional aspects of a
federally incorporated company
Notes
 Policy: avoid divisions that would destroy autonomy of Parliament or provinces
 Court has applied DA doctrine in a wide range of subject matters, but in other contexts have shown no
inclination to invoke it, for example, courts have insisted that jurisdiction to pass laws in relation to
regulation of trade, or in relation to labour relations, is exclusive rather than concurrent
 Multiple Access Dickson allows for concurrency where in Bell #2 Beetz suggests DA doctrine be used with
great caution, only “where the multiplicity of aspects is real and not merely nominal”
 DA, NI doctrines etc resulted from social reality that laws do not stay neatly within jurisdictions and in a
sense embrace that messiness; other side: overlap is confusing/not efficient
 Federally-incorporated companies are subject to provincial regulations with respect to trading in securities
with one exception: provincial legislation will be invalid it means that a federal company is “sterilized in all
its functions and activities” or “its status and essential capacities are impaired in a substantial degree”
(sterilization test). (see IJI)
Law Society of BC v. Mangat (2001) (SCC) – DA doctrine applied to uphold fed. legis. allowing non-lawyers to
appear before immigration board in hearings. “Parliament must be allowed to determine who can appear before
tribunals it has created, and the provinces must be allowed to regulated the practice of law as they have always
done.” (cb 300)
Bell Canada v. C.S.S.T (Bell #2) (1988 SCC) (246)
Facts: One in trilogy that dealt with application of provincial health and safety laws to federal undertakings.
Employee wants to take advantage of Quebec legislation that gives more rights (protective reassignment to pregnant
workers).
*** Beetz applies the Interjurisdictional immunity but Beetz also discusses Double Aspect Doctrine*** (see p
15 for full case)
Decision (Beetz): Provincial law must be read down so as not to apply to federally-regulated undertakings such as
Bell Canada.
 Caution in use of DA: should only be invoked when it gives effect to the rule of exclusive jurisdiction and
should only be applied in clear cases where the multiplicity of aspects is real and not merely nominal.
 since the legislators have legislated for the same purpose and in the same aspect the DA doctrine does
not apply and to allow provincial law to apply concurrently would strip the exclusivity of federal
power of any distinct or meaningful content
Reconciling Multiple Access and Bell #2
 The reasoning in MA and Bell conflict and there is an inconsistency in judgments, which evidences the fact
that there are some areas in which the Ct prefers the IJI and exclusive jurisdiction and will not allow for
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any concurrency (Bell: labour relations in federally regulated companies), and there are other areas where
they are more comfortable w/ overlapping concurrency and calling aspects double aspect matters (MA:
insider trading in federally incorporated companies), there are also areas in which the Ct allows for almost
complete overlap (criminal law – highway traffic, morality, regulating disturbances, censorship of films,
panhandling in Safe Streets Act) as long as there is a real local concern grounded in s. 92 powers
 Hence, the label of double aspect is more of a conclusion than a premise
 Policy/value driven decisions based on context
 Also, attitude depends on whether two regimes will be more or less efficient – in Multiple Access no real
cost in giving ppl access to two courts vs. Bell #2 occupational safety is an elaborate scheme w/ detailed
regulations and requiring employee right under two regimes, so inefficient/complicated
 for exam, look at whether inefficiency is a real concern and if there is room for both levels of
government to act legitimately
 Note on labour: Parliament forms labour laws as if applies to its spheres (about 20% of labour force) so acts
always passed as employer means bank etc
 Provincial labour legislation usually says that everyone has a right, but we know that it does not
 In answering a question, look at the extent to which inefficiency is a real concern, and if room is there for
both levels of government to act legitimately
 see paramountcy for when they prefer DA and when they prefer IJI
 ALL DEPENDS ON YOUR ROLE!!! If judge/clerk say whatever, but if writing Factum for trial judge, not
going to ask them to overrule SCC jurisprudence
2. APPLICABILITY (Interjurisdictional Immunity) (303)
 where IJI doctrine applies, provincial laws are not allowed to have even an incidental effect on
matters falling w/in federal jurisdiction and no double aspect to the matter regulated, so ignore
whether or not there is a federal statute
 comes into play where a provincial law is clearly valid in most of its applications, but in some of its
applications it arguably overreaches, affecting a matter falling w/in federal jurisdiction – result in these
cases is that the entire provincial law is not found invalid, it is only found inapplicable to the federal
undertaking or other federal matter – the law must be read down in its application
 IJI has only been applied to protect federal heads of power; never been invoked to read down a fed
statute to prevent it from applying to an exclusive provincial power
 Exam: if acting for claimant, say that it is ripe for re-consideration, but chances of
success are not high (Friends of Oldman River)
Test (at this point already established valid fed law and valid prov law):
Does the provincial law trench on activity that is at its core federal ?
 IJI doctrine has been applied to:
1. federally incorporated companies (status and essential powers)
2. federally regulated activities *** [exam: he’ll tell us]
o broadcasting, telecommunications, aeronautics
3. Aboriginal peoples and lands (“core of Indianness” immunity, which includes Aboriginal rights and
treaty rights) (GO TO ABORIGINAL TEST)
4. Navigation and shipping (maritime law immunity: Ordon Estates: provincial negligence statutes have
to be read down to protect maritime negligence law as a core element of federal jurisdiction over navigation
and shipping).
5. federal lands, RCMP, armed forces personnel, postal workers
o not to railways (R. v. Canadian Pacific Ltd) has not been invoked yet in context of criminal law power
nor trade and commerce
***If the law affects a federally regulated activity:
Does the law directly affect federally regulated undertaking?
a. Direct: Vital Part Test:
Does the provincial law directly apply to an “essential or “vital part of the management and operation” of a
federally regulated activity? (Bell #2)
b. Indirect: Sterilization Test:
Does the provincial law have the effect of “sterilizing” (making unable to operate) a federal undertaking? (Irwin
Toy)
9
If yes, IJI applies and the law must be ‘read down’ to restrict its application
 IJI is an exception to usual operation of pith and substance doctrine (which usually allows ancillary effects
on matters outside jurisdiction)
Two problems with use of IJI doctrine:
1. Contradiction: treats federal heads of power as more exclusive than provincial heads of power; should be
reciprocal but it’s not
2. has only been applied to some federal heads of power, but not all; mostly applied to more tangible heads of
power (things, works, or people, banks), but w/ respect to conceptual subject matters (trade, crime) we do
not see the doctrine operate
Interjurisdictional Immunity
Bell #1 (1966) (SCC) – at issue was whether QB minimum wage act could apply to Bell. II was applied by
Martland, but the test was changed from “sterilization” to “affects a vital part.” Minimum wage law inapplicable.
(cb 304)
OPSEU v. AG Ontario (1987)(SCC) – Dickson CJC criticizes II on the grounds that it may lead to gaps in the
legislation and may be unnecessary given paramountcy. (cb 305)
Bell Canada v. C.S.S.T (Bell #2) (1988 SCC) (246)
Facts: One in trilogy that dealt with application of provincial health and safety laws to federal undertakings.
Employee wants to take advantage of Quebec legislation that gives more rights (protective reassignment to pregnant
workers).
Issue: whether the provincial statute can apply to federally-regulated companies?
Decision (Beetz): Provincial law must be read down so as not to apply to federally-regulated undertakings such as
Bell Canada.
Directly Affects: Does the provincial law directly apply to an “essential or “vital part of the management and
operation” of a federally regulated activity?
 General legislative jurisdiction over health belongs to the provinces per s. 92(16)
 In principle, labour relations and working conditions fall within the exclusive jurisdiction of the provincial
legislatures under s.92(13)
 IJI: Parliament is vested with exclusive jurisdiction over labour relations and working conditions when that
jurisdiction is an integral part of its primary and exclusive jurisdiction over another class of subjects, as is
the case with labour relations and working conditions in the federal undertakings covered by ss. 91(29) and
92(10)abc.
 Caution in use of DA: should only be invoked when it gives effect to the rule of exclusive jurisdiction and
should only be applied in clear cases where the multiplicity of aspects is real and not merely nominal.
Ratio: Broadens the previous sterilization/impairment test for IJI applicable to federal undertakings: A valid
provincial law cannot apply to a federal undertaking if it affects a vital part of their operation or
management (vital part test).
Since working conditions and management of an undertaking are vital or essential parts of an undertaking, it follows
that provincial laws cannot apply to federally regulated undertakings.
Notes:
 Beetz holds that the decision in Bell #1 was correct and that this case is distinguishable; rejects Hogg’s
argument that IJI (at heart of Bell #1) not only confers a power on Parliament but operates defensively to
deny power of legislature - if Parliament’s power is exclusive it’s b/c Constitution specifies that
 One issue that remained unresolved after Bell #2 was whether prov environmental regulations would be
applicable to federal undertakings; ruling in R v Canadian Pacific Ltd held prov legislation applied to the
railway, a federal undertaking.
 since the legislators have legislated for the same purpose and in the same aspect the DA doctrine does not
apply and to allow provincial law to apply concurrently would strip the exclusivity of federal power of any
distinct or meaningful content
10
R. v. Canadian Pacific Ltd. (1995) (SCC) – Railways does controlled burn of grass, charged under Ontario EPA.
Brief reasons given, CPA found applicable – no II. Seems inconsistent with Bell 1 and 2. (cb 317)
Irwin Toy Ltd v Quebec (1989, SCC)
Facts: Quebec law prohibits advertisers from directing advertisements at persons under 13. TV advertisers
challenged it as inapplicable to broadcasting b/c that is a federal undertaking.
Decision: 3-2 majority upheld the application of the provincial law to television advertisers. Applied impairment
test b/c provincial law applies indirectly to federal undertaking.
 majority pulled back on the scope of the immunity the Bell #2 ruling had conferred on federal undertakings
and other federally regulated enterprises.
 avoiding the result apparently dictated by Bell #2 by ruling that the “vital part” test properly determines the
scope of the II doctrine when a provincial law applies directly to a federal undertaking and that narrower
impairment test should be followed when a provincial law applies indirectly to the undertaking.
 applied the impairment test and concluded the law did not impair or sterilize the operation of broadcast
undertakings, therefore it could validly apply to them. Majority did not explain why the test should be
different depending on whether the legislation directly or indirectly achieves its effects.
Canadian Western Bank v. Alberta (2007) (SCC) – In 1991 the Bank Act changed to allow banks to promote
insurance. In 2000 Alberta changes Insurance Act to make federal chartered banks subject to their licensing scheme.
Bank argues new legis. either inapplicable or inoperable, but fails to win on either count. (supp. 39)
 II doctrine goes against the dominant tide of the jurisprudence, which favours concurrent jurisdiction. It
risks creating a centralizing trend in federalism and seems superfluous given paramountcy. (para. 43-47)
 Unhappy with test coming out of Bell #2, going back to standard of “impairs” the “core” or “vital or
essential part” of an undertaking. (para. 48-53)
 General displeasure with II, says courts justified in skipping consideration if no jurisprudence existing.
(para. 78)
 CWB fails to prove insurance part of “core” of banking power, and fails to prove frustration of purpose for
paramountcy. (supp. 52)
CB AG v. Lafarge (2007) (SCC) companion case to CWB – Another attempt to rely on II rejected. Lafarge wanted
to build a facility on land owned by the Vancouver Port Authority, a federal undertaking. Project was not compliant
with Vancouver by-laws.
 Construction of Lafarge cement mixing facility was an activity only incidental to “navigation and
shipping”, and did not fall within the core or vital shipping functions. (supp. 54)
 However, preconditions for federal paramountcy “easily” met. Applying city by-laws would frustrate the
purpose of the VPA as the city would have to approve its projects (city had 30-ft height restriction on
buildings, could grant exemption up to 100). (supp. 55)
3. OPERABILITY: The Paramoutcy Doctrine
 Only when dealing with overlapping, valid and applicable laws, do we apply paramountcy doctrine: does
the provincial law conflict with federal one?
 Constitution is silent on the issue with three exceptions:
 1. s. 95 recognizes agriculture and immigration as areas of concurrent jurisdiction and provides that
provincial laws shall have effect only to the extent that they are not “repugnant” to acts of Parliament
 2. s. 92A (added in 1982) confers on provincial legislatures a concurrent power to enact laws in relation to
the export of natural resources to other provinces, subject to paramountcy of federal legislation in cases of
conflict
 3. s. 94A (added 1951 and 1964) provides for concurrency in relation to old-age pensions and
supplementary benefits, but provides a form of provincial paramountcy by stating that no federal law shall
affect the operation of any law of a provincial legislature
 In all other cases of conflict, the judicially created paramountcy doctrine filled the gap: provides that
in cases of conflict, the federal law is paramount and the provincial law is inoperative to the extent of
the conflict
1. Express Conflict or Impossibility of Dual Compliance Test (Multiple Access)
11

A narrow reading of conflict which allows both laws to operate unless it is impossible for those subject to
the two legislative schemes to comply with both
 Focus is the individuals, corporations, or legal decision makers who must tailor their behaviour to the
legislative dictates
2. Incompatibility (frustration) of legislative purposes (Bank Mtl v. Hall)
 focus is the intention of the federal Parliament
Remedy:
 Provincial law is not declared invalid but inoperative or suspended to the extent of the inconsistency
with federal legislation;
o if federal legislation is repealed the provincial law may be applied again/or if federal law
changes such that conflict disappears, provincial law will become operative
Notes
 “Covering the field” test (a valid provincial law is inoperative whenever it has an impact on matter already
regulated by a valid federal law) can be found in some older cases, but SCC has tended to favour a narrow
approach to paramountcy, that leaves a great deal of room for the concurrent operation of federal and
provincial statutes; ‘covering field test’ explicitly rejected in favour of impossibility of dual compliance test
in Multiple Access
 In a series of cases dealing with highway traffic offences, SCC has upheld provincial statutes that impose
different standards and consequences for driving offences than those set out in the Criminal Code
Paramountcy Doctrine
Multiple Access Ltd. v. McCutcheon (1982, SCC) (324)
Facts: Insider trading provision in federal and provincial statutes.
Issue: Is duplication a conflict that gives rise to federal paramountcy?
Decision (Dickson): No, both can be complied with.
 Invokes narrow definition of federal paramountcy: in principle, paramountcy will not apply except
when there is actual conflict in operation and same person told to do inconsistent things/legal
compliance with both is impossible
 Argument that duplication must give rise to paramountcy is rejected on the ground that duplication is
not a test of conflict as it merely signals harmony
 Value cited in support of narrow reading of the paramountcy doctrine is provincial autonomy; this test
leaves more room for provinces to express local particularities/promotes provincial flexibility, which is
one of the purposes of a federal division of powers and in his opinion it is more important than
efficiency or messiness (price we pay for federal state where value of provincial autonomy outweighs
those concerns)
Ratio: Duplication is not a form of conflict for purposes of paramountcy doctrine. The test is impossibility of
dual compliance. (cb 327)
M & D Farm (SCC) (1999) – Example of impossibility of dual compliance. A conflict existed between a stay of
proceedings issued pursuant to federal law and an order authorizing the commencement of foreclosure
proceedings pursuant to provincial legislation. Paramountcy used. (cb 327)
Bank of Montreal v. Hall (1990, SCC)(cb 328) broadens paramountcy
Facts: Farmer Hall trying to rely on provisions of Sask statute to prevent his machinery from being seized by
bank. Sask Limitation of Civil Rights Act, a valid exercise of prov legislative power pursuant to s.92(13),
required creditors to give notice to a defaulting debtor, giving the debtor a last opportunity to repay the loan
before the bank could bring proceedings for foreclosure, otherwise creditors’ right to enforce loan agreement
was cancelled. In contrast, the federal Bank Act, valid pursuant to banking power in s.91(15) provided a
procedure for foreclosure by a bank that did not include the giving of this last-opportunity notice to the debtor.
(Both found to be valid and applicable to the facts).
Issue: Whether competing policy concerns are a form of conflict for the purposes of the paramountcy doctrine,
even where it is possible to comply with both laws. (yes)
Decision: Provincial legislation is inoperative b/c incompatible w/ fed. leg. purpose.
12

Purpose of federal legislation is to streamline process of enforcing security interests from a bank’s point
of view, i.e. have a single, national scheme for banks
 The extra procedural layer put in place by the provincial legislation not only has the effect of causing a
delay in the bank getting its security interest, but is not compatible with the federal objective
Ratio: There are two branches of paramountcy test: 1) is there an impossibility of dual compliance and 2)
would the operation of the provincial statute be incompatible with the federal legislative purpose? If so,
inoperative to extent of conflict. (test at cb 331)
Notes: Applicability argument would have been that provincial statute must be read down b/c banks are federal
undertakings and scheme of enforcing security interests is a vital part of management of undertaking. Ct jumped
over applicability question here, likely b/c at this point in time IJI had only been applied to federally
incorporated companies, federally regulated activities and aboriginals. PAUL
Spraytech (SCC) (2001) – Municipal by-law restricting use of pesticides to specified locations and purposes not
in conflict with federal Pest Control Products Act.
Husky Oil Operations Ltd. v. MNR (1995) (SCC) – Case involved operation of provincial legislation in
bankruptcy situations. Gonthier J creates confusing by saying he is using applicability not operability when he
says the Sask. Workers Comp. Act cannot apply to bankruptcies if it would have the effect of subverting the
order of priorities for creditor’s claims set out in the federal Bankruptcy Act. (cb 334) This case could explain
confusing which led to CWB and Lafarge. (335)
Rothmans, Benson & Hedges Inc. v. Saskatchewan (2005, SCC) (supp)
Facts: Tobacco companies challenged the operability of s.6 of Sask. Tobacco Product Control Act which
prohibits retail display of tobacco products in places where persons under the age of 18 are admitted. Federal
Tobacco Act prohibits promotion of tobacco products, but expressly permits the retail display of tobacco
products. Both parties agree tobacco is a dual aspect matter (for provinces: in p/s in relation to health (92(16))
and local, retail transactions (92(13)); for feds: in p/s in relation to crim law)
Issue: Whether paramountcy is invoked when a provincial law restricts the operability of a federal law?
Decision: The provincial law applies; Meets dual compliance test and compatibility of purpose test.
Reasons (Major):
 No precedent that a federal statute which is in p/s in relation to criminal law cannot be restricted in its
operability by a provincial law
 Meets two-pronged paramoutcy test: it is possible to comply with both either by not allowing in ppl
under 18 or not displaying advertising; purposes of acts are compatible.
Notes:
 incompatibility test is broader and difficult to predict in its application
 nuanced determination of incompatibility; where there is room for debate the answer is often going to
be value-driven
 did not see problem with Saskatchewan further protecting youth from tobacco products; something to
be said for allowing provincial autonomy to be expressed alongside a uniform national regime
P.O.G.G. SUMMARY
The federal "POGG" power is set out in the opening language of s.91: "It shall be lawful for [Parliament] to make
laws for the Peace, Order and Good Government of Canada, in relation to all Matters not coming within the Classes
of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not
so as to restrict the Generality of the foregoing Terms of this Section..." (a list of 29 enumerated federal powers
follows). Apart from the notable exception of the Privy Council's first discussion of POGG in the Russell decision of
1882, the judiciary has not approached the POGG power as a "general power" that embraces and goes beyond the
totality of federal powers enumerated in s.91 (as the text quoted above would suggest). Instead, when faced with a
challenge to a federal statute, the courts will first consider the enumerated heads of federal and provincial power. If
the legislation cannot be sustained by an enumerated power, POGG will then be considered. There are now three
well-established branches of the POGG power, each with a distinctive role and definition. They are: 1) a gap (or
residual) branch; 2) an emergency branch; and 3) a national concern or national dimensions branch.
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1) The Gap Branch:






Fills in any gaps in the distribution of powers, but does not embrace matters simply because they are
“new”; “new” matters are normally allocated to one of the enumerated heads of power is ss. 91 and 92;
rarely invoked.
source of federal jurisdiction in relation to matters that cannot be embraced conceptually by any of the
enumerated subject matters in sections 91 and 92
Where constitution deals specifically but incompletely w/ a subject matter, gap branch will “complete
the incomplete assignment of power” (Hogg)
Includes: use of language in federal government; incorporation of companies with federal or extraprovincial objects (this is the source of the federal "company law power", used to affirm the validity of
the federal Canada Corporations Act challenged in Multiple Access); in the early 1930s at least, the
implementation of Canada's treaty obligations (such a power was recognized in the Radio Reference
1932 PC, and later denied in the Labour Conventions case, 1937 PC); offshore resources beyond the
territorial boundaries of the provinces (Re Offshore Mineral Rights of B.C., (1967); Re Newfoundland
Continental Shelf, (1984); and the regulation of federal departments and agencies (Jones v. A.G. N.B.,
1975); Friends of Oldman River Society v. Canada (1992)
Labour Conventions case says that jurisdiction to implement treaties is divided depending on whether
subject matter of treaty falls w/in their power (still the law); when negotiating, feds then must consult
provinces to ensure ratified treaties will be implemented by provincial governments
Only branch of pogg until post WW2 era
One of the roles of the POGG power is to fill any gaps in the distribution of powers. This purely residual aspect of
POGG will thus be the source of federal jurisdiction in relation to matters that cannot be embraced conceptually by
any of the enumerated subject matters in sections 91 and 92. For example, the use of language in federal government
departments, and offshore resources, are matters that cannot be brought within an enumerated head of power and
thus have been allocated to POGG in its residual or default role. In addition, where the constitution deals specifically
but incompletely with a subject matter, the gap branch of POGG will "complete the incomplete assignment of
power." (Hogg, c.17.2 at p.437 of 2007 student ed.)
Examples of subject matters that the courts have assigned to the gap branch of POGG are: the incorporation of
companies with federal or extra-provincial objects (this is the source of the federal "company law power", used to
affirm the validity of the federal Canada Corporations Act challenged in Multiple Access 1982 SCC at 450, 478); in
the early 1930s at least, the implementation of Canada's treaty obligations (such a power was recognized in the
Radio Reference 1932 PC, and later denied in the Labour Conventions case, 1937 PC); offshore resources beyond
the territorial boundaries of the provinces (Re Offshore Mineral Rights of B.C., [1967] S.C.R. 792; Re Newfoundland
Continental Shelf, [1984] S.C.R. 86); and the regulation of federal departments and agencies (Jones v. A.G. N.B.,
[1975] 2 S.C.R. 182; Friends of Oldman River Society v. Canada, [1992] 1 S.C.R. 3).
Judges’ use of the “living tree” doctrine is the main reason why the list of subject-matters allocated to POGG in its
residual role is so small. The vast majority of subject-matters that did not exist or were not foreseen in 1867 have
been allocated to enumerated heads of power in sections 91 and 92 (e.g., new modes of transportation and
communication have been allocated to provincial or federal jurisdiction according to the division between local and
inter-provincial set out in s.92(10)). The heads of power in the Constitution Act, 1867 are each given a dynamic
interpretation capable of embracing new subject-matters that share core features with the original concepts. For
example, same-sex marriage falls within the federal marriage power in s.91(26) even though the concept was foreign
to the drafters of the 1867 Act: see the Same-Sex Marriage Reference 2004 SCC. Similarly, Parliament has the
power to provide maternity and parental benefits to employees, even though such matters did not fall within
s.91(2A) (“unemployment insurance”) as understood when added to the constitution in 1940: Employment Insurance
Reference 2005 SCC.
2) The Emergency Branch:
14





In times of "a sufficiently great emergency such as that arising out of war", the pogg power authorizes
the federal government to make any and all laws of a temporary nature necessary to address the
emergency, even on subject matters that ordinarily fall within exclusive provincial jurisdiction
o Law must be temporary (must have sunset clause) and arguments that it’s based on
emergency
Parliament determines when an emergency exists and all areas become concurrent to extent Parliament
deems necessary; provincial laws/powers remain in force but are suspended to extent of conflict
A court will only overrule feds determination of emergency if “very clear evidence” to contrary, or govt
lacks “rational basis” i.e. never
Examples: a range of federal laws were upheld as emergency legislation during the two world wars
(notorious Japanese Canadians Reference, 1947 upholding forced deportation orders following world
war II); the declaration of the War Measures Act on the basis of "an apprehended insurrection" in
October 1970 was upheld by lower courts; and the Anti-Inflation Act was upheld as a valid exercise of
the pogg emergency power in 1976
the War Measures Act was repealed by Parliament with the passage of the Emergencies Act in 1988; the
latter statute sets up a new framework for the exercise of the federal emergency power; if exercised, it is
less draconian than its predecessor, requiring Parliamentary review of a declaration of an emergency by
the Cabinet, and making clear that the Charter of Rights and Freedoms will apply to the exercise of
emergency powers in the same way as it does to other government action
Three part test for emergency branch of POGG:
1. The federal government must have a rational basis to claim that there is an emergency. (e.g. apprehension
of insurrection, apprehension of war and inflation). Challenger has the burden of showing that this is not
the case.
2. The legislation must address the emergency.
3. The legislation must be temporary in nature.
In times of "a sufficiently great emergency such as that arising out of war", the POGG power authorizes Parliament
to make any and all laws of a temporary nature necessary to address the emergency, even on subject matters that
ordinarily fall within exclusive provincial jurisdiction: see Board of Commerce 1922 PC; Fort Frances 1923 PC;
and Anti-Inflation Reference 1976 SCC (499). In short, when an emergency exists, the usual constraints placed on
Parliament by the constitutional division of powers are temporarily abandoned. Parliament’s legislative authority is
temporarily plenary (although still subject to the limitations imposed by the Charter of Rights and Freedoms).
Provincial legislative jurisdiction remains in place during an emergency declared by Parliament but is completely
subordinate to overlapping and overriding Parliamentary jurisdiction. A court will overrule Parliament’s
determination that emergency conditions exist only when presented with "very clear evidence" to the contrary (per
Ritchie J., noted at 516), or when Parliament’s decision lacks a "rational basis" (per Laskin C.J. at 505-6).
Examples of Parliament’s exercise of the emergency branch of POGG upheld by the courts include: a range of
federal laws upheld as emergency legislation during the two world wars (see, e.g., Fort Frances, op cit, and the
notorious Japanese Canadians Reference, [1947] A.C. 87, upholding forced deportation orders following World
War II); the declaration of the War Measures Act on the basis of "an apprehended insurrection" in October 1970;
and the upholding of the Anti-Inflation Act in 1976. The courts have rejected attempts by Parliament to rely on the
emergency branch of POGG to uphold permanent legislation. For example, in 1937 the Privy Council declared
invalid a package of permanent federal statutes designed to respond to the dire economic conditions that arose
during the Great Depression (Unemployment Insurance Reference 1937; Labour Conventions 1937).
The War Measures Act was repealed by Parliament with the passage of the Emergencies Act in 1988 (see note at
519). The Emergencies Act puts in place a new legal framework to guide the exercise of law-making powers by the
federal executive in emergencies. If exercised, it is less draconian than its predecessor, requiring Parliamentary
review of a declaration of an emergency by the Cabinet, and making clear that the Charter of Rights and Freedoms
will apply to the exercise of emergency powers in the same way as it does to other government action. The
Emergencies Act, of course, is ordinary legislation, validly enacted pursuant to the gap and/or national concern
branches of POGG. It does not purport to exhaust or constrain the legal powers Parliament possesses pursuant to the
15
emergency branch of POGG. In other words, the Act does not prevent Parliament from passing temporary
legislation in response to perceived emergency conditions.
Reference re Anti-Inflation Act (1976) (SCC)
Facts: Federal wage and price control legislation introduced to bring inflation under control; applies to federal
public sector, provincial public sector (but only w/ provincial agreement) and all private companies w/ over 500
employees. In p/s goes beyond power in s. 91, only pogg power has potential to uphold law’s application to
provincially regulated private enterprises and provincial public service (most of labour law is provincially
regulated pursuant to property and civil rights).
Decision: Legislation upheld under emergency branch of pogg (7-2), not on national concern branch (5- nb: this
is the law)
Emergency: yes (7-2 Laskin for 4 and Ritchie concurring for 3)
Three Step Test in determining whether legislation can be upheld under Emergency Branch of Pogg:
1. Legislation must be temporary – need sunset clause.
2. Legislation must address the emergency. Preamble sufficient to address.
o Here, preamble refers only to national concern
o Laskin: validity doesn’t depend on wording of preamble; preamble sufficiently indicative of
Parliament’s intention to invoke its emergency powers
o Beetz: To override provincial powers due to emergency, Parliament should be clear there is one
3. The federal government must have a rational basis to claim that there is an emergency (challenger
has burden of showing this is not the case)
a) Does the form of the act either support or contradict the fed’s contention that it is emergency
legislation?
o Laskin: reasonable compromise
o Beetz: didn’t apply to provincial public service, so couldn’t be much of a crisis; if feds can
regulate wages in public service, than there’s nothing they cannot regulate
b) Does external evidence show that there is a rational basis for identifying the act as a crisis measure?
NB: don’t look at external evidence to determine effectiveness of law
o Only when there is very clear evidence to contrary will court overruled fed government’s
determination of emergency.
o Laskin says yes, Beetz says no
o Expert eco evidence says early 70s “stagflation” not an economic crisis
Note: constitutes a clear precedent for the admission of social-science briefs in constitutional cases where
legislative facts are in issue.
Dissent (Beetz): (his discussion of national concern branch is the law)
 Need explicit declaration of an emergency
o Not a constitutional requirement, but it is reflected in legislation – 1988 federal Emergencies
Act requires the declaration of an emergency and Parliamentary review before emergency
powers can be exercised under the Act
3) The National Concern (or National Dimensions) Branch:




originated in an obiter of Lord Watson in the Local Prohibition case, 1896 PC; ignored for 50 years
until it was resuscitated by the PC in Canada Temperance Foundation, 1946
branch always hotly contested b/c poses huge threat to provincial autonomy
Examples: temperance legislation (Canada Temperance Act 1946); aeronautics (Johanesson v. St. Paul
1952 SCC); the national capital region (Munro 1966 SCC); marine pollution (Crown Zellerbach); and
atomic energy (Ontario Hydro v. Ontario Labour Relations Board, 1993 SCC).
Rejected: Regulation of toxic substances/pollution (Hydro Quebec below), inflation laws (Reference Re
Anti-Inflation) (both are too diffuse).
Before a subject matter can be allocated to national concern branch it must:
1. Go beyond provincial or local interests and must from its inherent nature be of concern to the nation as whole
2. “have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial
concern”; and
16
3. “a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative
power”
 in determining (2), whether the subject matter meets the requirement of “singleness” or “indivisibility”, it is
relevant to consider the “provincial inability test”: that is, whether a province lacks the ability to effectively
regulate the subject matter?
o The provincial inability test is satisfied when there is a high risk of interprovincial effects created by:
 i. the failure or inability of province(s) to effectively regulate the subject matter at issue; and
 ii. The possibility of non-cooperation by the provinces in achieving uniform regulation.
o In those circumstances, effective regulation of the subject matter is likely to be achieved only if
jurisdiction is allocated to the federal government
o if test is met, this strengthens the case for allocating the matter to the national concern branch of
POGG (306-8) (Hogg says most important factor, in CZ, LeDain says it is just ‘one indicia’, not
presented as necessary requirement)
 in determining (3): the larger or more diffuse the subject matter, the less likely it is to be allocated to pogg; it
must be something that is discrete and focused – b/c once we say a subject matter falls within the national
concern branch of pogg, the matter becomes permanently allocated to federal power (apart from judicial
reconsideration or constitutional amendment)
Note:
o National Concern Test (requirements) were stated by Beetz in Anti Inflation; although it was obiter,
the court has unanimously signed on to his approach regarding national concern branch in Crown
Zellerbach, so it should be treated as the law
This branch of POGG enables Parliament to legislate in relation to some matters that go beyond local or provincial
concern or interests and must from their inherent nature be of concern to the nation as a whole. When a subjectmatter has been allocated to the national concern branch of POGG, it is as if the division of powers has been
amended by adding that subject-matter to the enumerated list of powers in s.91. In other words, Parliament has the
exclusive ability to pass laws that are in pith and substance in relation to that subject-matter.
The idea that became the national concern branch of POGG originated in obiter dicta of Lord Watson in the Local
Prohibition case (1896 PC). Lord Watson’s dicta was then either explicitly rejected or studiously ignored by the
P.C. for a half century. The main reason for the P.C.’s caution appeared to be a concern that acknowledging the
existence of a national concern doctrine would threaten provincial autonomy, a value at the heart of the P.C.’s
jurisprudence. Most public policy debates giving rise to legislative proposals relate to issues of national concern.
The challenge is to recognize a national concern branch of POGG and at the same time articulate limits to provide
adequate protection to provincial autonomy. The P.C. dodged this challenge from 1896 to 1946.
To everybody’s surprise, in 1946 the P.C. resuscitated the national concern doctrine, using it to uphold federal
temperance legislation in the Canada Temperance Foundation case. Thereafter, the SCC embraced the national
concern doctrine, employing it to uphold federal jurisdiction in relation to aeronautics (Johanesson v. St. Paul 1952
SCC, 492) and the national capital region (Munro 1966 SCC, 493). In these early cases, the SCC did not articulate
principles that would constrain the potential breadth of the national concern doctrine. It was not until the AntiInflation Reference (1976 SCC, 499) and Crown Zellerbach (1988 SCC, 521) that the modern shape of the doctrine
emerged. It is now clear that, in addition to being inherently a matter of national concern, to qualify for allocation to
the national concern branch of POGG a subject matter must also meet the test first stated by Beetz J. on behalf of a
majority of five members of the Court in the Anti-Inflation Reference, a test later adopted by both the majority and
dissent in Crown Zellerbach.
According to Beetz J. in the Anti-Inflation Reference, a national concern subject matter must have manageable
proportions; it must be distinct and specific, rather than diffuse. It must have "a degree of unity that makes it
indivisible, an identity which makes it distinct from provincial matters and a sufficient consistence to retain the
bounds of form." (per Beetz J. at 511). In other words, the scale of the impact on provincial powers of allocating the
subject matter to POGG must be measured to ensure that the equilibrium of the federal constitution is not upset
(Crown Zellerbach per Le Dain J. at 524 and per La Forest J. at 530). For this reason, "diffuse" subject-matters, such
as inflation or environmental protection, do not qualify.
17
In considering whether Justice Beetz' test is met, it is relevant to consider the "provincial inability test" (per Le Dain
J. at 524), that is, whether a province lacks the ability to effectively regulate the subject matter (absent the
cooperation of other provinces). The "provincial inability test" is satisfied when there is a high risk of interprovincial
effects created by: (i) the failure or inability of province(s) to effectively regulate the subject matter at issue; and (ii)
the possibility of non-cooperation by the provinces in achieving uniform regulation. In those circumstances,
effective regulation of the subject matter is likely to be achieved only if jurisdiction is allocated to the federal
government. Hogg argues that the provincial inability test is "the most important element of national concern"
(Hogg c.17.3(b), 2007-8 student ed. at p.444-5). However, Le Dain J.'s support of the idea is more tentative; he says
(at 525) that it is "one of the indicia" to consider; it is not presented as a necessary requirement, nor does it figure in
his analysis of the facts of ocean pollution.
In Hydro-Québec, 1997 SCC, 538 & 618, the four members of the Court that addressed the issue found that the
regulation of toxic substances in Part II [now Part V] of the Canadian Environmental Protection Act was too diffuse
a subject matter to meet the POGG national dimensions test. The majority opinion of La Forest J. did not decide
whether the challenged provisions could be upheld pursuant to POGG, as he upheld the statute as a valid exercise of
the federal criminal law power. La Forest J. did say that the national concern branch of POGG “raises profound
issues respecting the federal structure of our Constitution which do not arise with anything like the same intensity in
relation to the criminal law power.” (para.110). He further explained his reluctance to invoke the POGG national
concern power as follows (at paras.115-116):
While the constitutional necessity of characterizing certain activities as beyond the scope of
provincial legislation and falling within the national domain was accepted by all the members of
the Court [in Crown Zellerbach], the danger of too readily adopting this course was not lost on the
minority. Determining that a particular subject matter is a matter of national concern involves the
consequence that the matter falls within the exclusive and paramount power of Parliament and has
obvious impact on the balance of Canadian federalism. In Crown Zellerbach, the minority (at p.
453) expressed the view that the subject of environmental protection was all-pervasive, and if
accepted as falling within the general legislative domain of Parliament under the national concern
doctrine, could radically alter the division of legislative power in Canada.
The minority position on this point (which was not addressed by the majority) was subsequently
accepted by the whole Court in Oldman River, supra, at p. 64. The general thrust of that case is
that the Constitution should be so interpreted as to afford both levels of government ample means
to protect the environment while maintaining the general structure of the Constitution. This is
hardly consistent with an enthusiastic adoption of the “national dimensions” doctrine. That
doctrine can, it is true, be adopted where the criteria set forth in Crown Zellerbach are met so that
the subject can appropriately be separated from areas of provincial competence.
At one point, the SCC took the position that criminal prohibitions on narcotics dealt with a “genuinely new
problem” and thus were valid pursuant to the national concern branch of POGG: see Hauser 1979. The frailty of this
reasoning from a factual, historical perspective is obvious. Moreover, from a doctrinal perspective, “newness” has
never been a sufficient basis for allocating a subject-matter to exclusive federal jurisdiction pursuant to the POGG
power (see Hogg, c.17.3(d), 2007-08 student ed. at 446-9). The SCC has since cast doubt on the Hauser ruling,
holding instead that the most obvious and secure constitutional basis for federal drug crimes is the criminal law
power: see Malmo-Levine 2003 SCC at paras.67-72.
In summary, because of the profound impact that allocating a subject-matter to the national concern branch of
POGG may have on the balance of legislative powers, Parliament and the courts have relied on it cautiously and
infrequently. The courts have allocated only five subject matters to the national concern branch of POGG since its
establishment in the jurisprudence over sixty years ago: temperance legislation (Canada Temperance 1946 PC, 491);
aeronautics (Johanesson v. St. Paul 1952 SCC, 492); the national capital region (Munro 1966 SCC, 493); marine
pollution (Crown Zellerbach, 521); and atomic energy (Ontario Hydro v. Ontario Labour Relations Board, 1993
SCC, 539).
Reference re Anti-Inflation Act (1976) (SCC) – BEETZ
Issue: Can The Anti-Inflation Act be upheld under the national concern branch of POGG?
18
Decision: The legislation cannot be upheld under the national concern branch (5-4), but is upheld under
emergency branch (7-2).
Ratio: The “containment and reduction of inflation” does not pass muster as a new subject-matter of federal
power that should be recognized under the nation concern branch of the POGG power.
Reasons: Beetz J. sets down the criterion recognized in the jurisprudence for the recognition of a new federal
POGG power under the national concern branch: “this was done only in cases where a new matter was not an
aggregate but had a degree of unity that makes it indivisible, an identity which makes it distinct from provincial
matters and a sufficient consistence to retain the bounds of form.” (cb 401) Inflation does not meet this criterion
because “since practically any activity or lack of activity affects the gross national product, the value of the
Canadian dollar and, therefore, inflation, it is difficult to see what would be beyond the reach of Parliament.” (cb
398).
R. v. Crown Zellerbach Canada Ltd. (SCC) (1988) – LE DAIN J.
Facts: CZ charged w/ dumping wood chips in marine waters w/o a permit, contrary to federal Ocean Dumping
Control Act. CZ challenged the Act, claiming dumping was under provincial jurisdiction, as dumping at issue
occurred in provincial marine waters. Ocean pollution is mostly federally regulated but mostly provincially
regulated for provincial waters. Act tried to regulate dumping in provincial waters that would not have caused harm
to extra-provincial waters.
Decision: Fed Act is valid (ODC Act now incorporated in Can. Enviro Protection Act)
Reasons: National concern test applied to ocean pollution (no other criteria est. here):
1. Must go beyond provincial or local interests and be of concern to the nation as a whole
 Can be cut off from matters that fall within exclusive provincial jurisdiction, Focus on difficulty of visually
ascertaining boundary b/w territorial waters
2. Must “have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial
concern”; (deal with provincial inability here) and
 Matter cannot be dealt with properly insofar as people outside the province are concerned, but can be cut
off from (crux of decision here is prov. inability test)
3. “a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative
power” (for these requirements see cb 414)
 Marine water can be distinguished from fresh water, and therefore it is distinguishable from matters of
provincial concern.
Ratio: Ocean pollution is now a part of federal government’s s. 91 powers. Marine, salt water pollution falls within
POGG even though occurring in distinctively provincial area; yet environment will not always fit within POGG
unless attached to a s.91 head of power.
Dissent (LaForest):
 slippery slope argument: if feds can regulate dumping that pollutes intra-provincial waters, then why can’t
it regulate emissions,
 Does not meet singleness test because there is no clear boundary for marine waters; cannot be read down
coherently b/c definition of sea is too far reaching
 Does not meet scale of impact criterion
 Not an unintelligent opinion from environmental point of view: ocean pollution is connected to other kinds
of pollution; slippery slope – if one aspect is allocated to feds, any aspect of pollution could be likewise
allocated
 Value: concern that too easily allocating matters to national branch threatens provincial autonomy
Notes:
 Brun and Tremblay’s criticism of majority ruling – takes away power previously given to provinces w/o
giving clear instructions on criteria – and many of the criteria are shams (cb. 424)
 implications for further growth of federal environment jurisdiction: preamble of Bill C-30, proposed
Canada’s Clean Air Act: “Whereas the Government of Canada recognizes that air pollutants and
greenhouse gases constitute a risk to the environment and its biological diversity and to human health, and
are matters of national and international concern which cannot be contained within geographic
boundaries…”
 there may be an attempt to push forward the scope of federal environmental regulations (right now over
fisheries, aboriginal land and people; but now most federal environmental regulations fall within its
criminal law power)
19
Friends of the Oldman River Society v. Canada (1992) (SCC) – LA FOREST
Facts: Friends Society sought to compel federal government to conduct an assessment of a dam being built by
Alberta government. At time, fed regulation required assessment of projects that could have an impact on matters
that fell w/in federal jurisdiction. Feds didn’t want to bully Alta govt; Alta tried to argue II applied (court said no
precedent for using to protect provincial heads of power; Ryder – unprincipled application of II).
Issue: whether Parliament has an obligation and the constitutional power to require environmental assessments of
provincial projects?
Decision: Fed government compelled to conduct environmental assessment.
Ratio: Usual approach to environment is to ask which aspect of environment is being regulated. Although local
projects will generally fall under the category of provincial responsibility, federal participation will be required if the
project impinges on an area of federal jurisdiction (i.e. anything in s. 91 – fisheries etc.), as is the case here. There is
a concurrent power here.
Result: Environmental assessment is concurrent with impacts on both areas of jurisdiction; best way to do
environmental assessment is to have one that addresses all matters, falling in either jurisdiction.
R. v. Hydro Quebec (1997) (SCC)
Issue: does Parliament have jurisdiction to regulate toxic substances in what is now Part V of CEPA, from “cradle to
grave”?
Decision (only four members consider issue): the regulation of toxic substances in Part II of Canadian
Environmental Protection Act was too diffuse a subject matter to meet the pogg national concern test (does not meet
‘singleness/distinctiveness/indivisibility’).
(majority did not address the issue, as it upheld the statute as a valid exercise of the federal criminal law power).
Ontario Hydro v. Ontario Labour Relations Board (SCC) (1993)
Issue: Proper jurisdiction – federal or provincial – to issue a certificate for collective bargaining for employees at
Ontario Hydro’s nuclear electrical generating stations, i.e. could feds regulate nuclear energy under pogg?
Decision (LaForest): 4-3 Canada Labour Code applied to employees of nuclear facilities.
o Production, use and application of atomic energy constitutes a matter of national concern
o It is predominantly extraprovincial and international in character and implications
o possesses sufficiently distinct characteristics to make it subject to national concern branch of pogg
o “The strategic and security aspects of nuclear power in relation to national defence and the catastrophe and
near catastrophe associated with its peaceful use and development at Chernobyl and Two Mile Island,
bespeak its national character and uniqueness.” (cb. 429)
Dissent (Iacobucci): Parliament has jurisdiction over atomic energy under national concern branch of pogg, but that
jurisdiction does not extend to the labour relations between Ontario Hydro and those of its employees employed in
the nuclear electrical generating stations; labour relations at issue not part of the single, distinctive and indivisible
matter identified as atomic energy (whereas majority though labour relations were an integral part of Parliament’s
jurisdiction over nuclear energy).
ECONOMIC REGULATION
In determining the scope of federal and provincial powers to pass laws in relation to the economy, the judiciary has
had to resolve the conflict between the apparently broad scope of federal jurisdiction in relation to "trade and
commerce" [s.91(2)] and the similarly broad provincial jurisdiction in relation to "property and civil rights"
[s.92(13)]. Canadian history suggested a broad meaning ought to be attributed to the latter phrase, yet the text of s.91
as a whole supports the view that the federal government should have an expansive capacity to regulate the national
economy as a single integrated unit. Conflict between s.91(2) and s.92(13) is thus inevitable.
91(2) “trade and commerce” and 92(13) “property and civil rights”
•
Drafters intended to give feds power to direct national economy (e.g. banking, currency, interest, bankruptcy,
patents, copyrights, interprovincial transportation and communication) but Canadian history suggested that
“property and civil rights” had a broad meaning, so conflict inevitable
Feds have jurisdiction to pass laws in relation to “trade and commerce” [s.91(2)]
20
Section 91(2) has two branches (known as two branches of Parsons):
1. International and Inter-Provincial Trade and Commerce (extra-provincial trade) and
2. General regulation of trade affecting the whole dominion (GRT power)
1. International and Inter-provincial trade and commerce (extra-provincial trade)
 federal laws that are in p/s in relation to ET can be upheld notwithstanding their incidental effects on intraprovincial transactions as long as effect are necessary to the integrity of the regulatory scheme as a whole
o PC interpreted s.91(2) narrowly in pre-WWII era; broadened post WW2 by liberally interpreting
p/s and necessarily incidental doctrines
 examples: regulation of import and export of goods and services; imposition or removal of tariff barriers;
legislation implementing international free trade agreements (such as FTA and NAFTA); could also use
power to eliminate barriers to inter-provincial trade (but feds have preferred to negotiate and form
agreements w/ provinces – cooperative not unilateral federalism)
 political constraints imposed by Canadian federalism are more stringent on use of federal legislative power
than the legal constraints
 difficulties arise in interpretation where Parliament seeks to regulate intraprovincial aspects of a trade
 examples: Klassen (grain trade) and Caloil (provinces importing foreign oil); unclear whether trend will
extend to regulation of trade in products (other than grain and oil) that are not as obviously destined for ET
Provinces have jurisdiction to pass laws in relation to “property and civil rights” [s.92(13)]: the most expansive
provincial power.

Crucial question: whether the transactions that are sought to be regulated are intra- or extra-provincial?
(Insurance Reference 1916: whether business operates in a single province, in many provs or on a nationally
basis is constitutionally irrelevant)
 Hogg notes that the nature of the transactions, not the geographic range of an industry determines whether an
activity is IP and under authority of 92(13) or extra provincial and under authority of 91(2)
 Provincial jurisdiction is always qualified by territorial limitation on prov powers and requirement that prov
legislation be directed predominantly at intra-prov matters.
 Industries, except for those enumerated in s. 91 (such as banking) are provincial
o some of the principal subject matters it embraces are:
o
o
o
o
o
o
o
o
o
o
law of property, apart from patents, copyright and federal public property
tort law, including statutory creation of civil causes of action (GM v. CNL at 225);
contractual transactions concluded within a province (Parsons; Multiple Access);
family law (adoption, custody, spousal and child support, property division), apart from marriage
and divorce [s.91(26)];
labour law (collective bargaining, employment standards, occupational health and safety), apart
from federal public sector and private sector workplaces where the employer’s activities are
federally regulated (Bell Canada #2 at 246);
professionial regulation;
highway traffic;
intraprovincial marketing and retail transactions (eg Rothmans supp. 4);
consumer protection;
law of succession (wills, estates)
In Citizens Insurance Co. v. Parsons 1881 (handout), the PC sought to limit the degree of overlap and potential
conflict between s.92(13) and s.91(2) by resort to the technique of interpretation referred to as "mutual
modification". As Sir Montague Smith put it, "it could not have been the intention that a conflict [between s.91 and
s.92 heads of power] should exist; and, in order to prevent such a result, the two sections must be read together, and
the language of one interpreted, and, where necessary, modified, by that of the other." (handout p.2-3) Using this
technique, he concluded that s.92(13) conferred on the provinces jurisdiction in relation to intra-provincial trade,
including "the power to regulate by legislation the contracts of a particular business or trade, such as the business of
fire insurance in a single province" (handout p.4). It followed that s.91(2) gave the feds jurisdiction in relation to
21
extra-provincial trade or trade that crosses provincial or international boundaries, i.e., inter-provincial and
international trade; and, the P.C. suggested, "it may be that [the words "regulation of trade and commerce"] would
include the general regulation of trade affecting the whole dominion" (handout p.4).
Citizens Insurance Co. v. Parsons (1881 PC)
Facts: Parsons trying to recover $ by saying insurance agreement violates Ontario legislation; insurance company
argues that Ontario legislation regulating insurance contracts is ultra vires.
Decision: Legislation is intra vires. Court resolves conflict between ss. 91(2) and 92(13) through “mutual
modification” – use language of one to restrict language of other and vv; doing that they find that:
•
•
s.92(13) embraces intra-provincial trade and commerce (“the power to regulate by legislation the contracts of a
particular business or trade, such as the business of fire insurance in a single province”), so it follows that 91(2)
gave feds jurisdiction over extra-provincial trade (branch 1)
•
therefore, Ontario statute regulating fire insurance contracts was intra vires
wrong to interpret s 91(2) as taking over matters that fall within civil code as that would be like including
Quebec in s 91(4) whereas it was left out by fathers of confederation for a reason, so court sets out two branches
of 91(2) see above
Obiter: recognizes GRT power.
Provincial Jurisdiction Under Section 92(13)
After Parsons, the courts made clear that whether a business operates in a single province, in many provinces, or on
a national basis, is constitutionally irrelevant; rather, the crucial question is whether the transactions that are sought
to be regulated are intra- or extra-provincial. See, e.g., the Insurance Reference, [1916] 1 A.C. 588, finding ultra
vires a federal attempt to license insurance companies operating in more than one province. This and subsequent
attempts by Parliament to regulate the insurance industry were rejected by the courts on the grounds that the
majority of insurance contracts are concluded within the boundaries of a province and thus the regulation of the
industry falls within provincial jurisdiction. These cases made clear that it is the nature of the transactions, not the
geographic range of an industry, that determines which level of government has jurisdiction to regulate the industry.
The early insurance cases established that the regulation of business (apart from the specific business activities listed
in s.91, such as banking) was a matter ordinarily within property and civil rights. Later, s.92(13) was recognized as a
source of provincial power in relation to labour relations, including collective bargaining, employment standards and
occupational health & safety (again with the exception of labour relations in federally-regulated sectors): see T.E.C.
v. Snider 1925 PC, Labour Conventions 1937 PC, Bell Canada 1988 1988 SCC (464). Other matters falling within
provincial jurisdiction under s.92(13) are the regulation of intra-provincial marketing (Rothmans, Benson & Hedges
2005 SCC, S73), property rights and usage, civil liability (contract & tort), workers' compensation, succession (wills
& estates), securities (Multiple Access 1982 SCC, 450 & 478), professions, consumer protection, family law (e.g.:
property division, support, custody, adoption; with the exception of marriage & divorce), and child welfare.
Provincial jurisdiction is always qualified by the territorial limitation on provincial powers and the requirement that
provincial legislation be directed predominantly at intra-provincial matters.
Section 91(2): Extra-Provincial Trade -- The First Branch of Parsons
This branch of federal power enables Parliament to regulate the import and export of goods and services, and to
impose or remove tariff barriers. Parliament has passed legislation implementing international free trade agreements,
such as the Canada-U.S. FTA and NAFTA, pursuant to this power. Parliament could also use this power to eliminate
barriers to inter-provincial trade. However, the federal government has preferred to move forward through
negotiations and agreement with the provinces on this matter (see the Internal Trade Agreement of 1994), that is
through "co-operative federalism" rather than unilateral federal intervention. In this area, as in so many others, the
political constraints imposed by the dynamics of contemporary Canadian federalism on the use of federal legislative
power are more stringent than the legal constraints.
Difficulties arise in the interpretation of the scope of s.91(2) when Parliament seeks to regulate not just the flow of
goods or services across provincial or international borders, but also the intra-provincial aspects of a trade. Most
22
trades, after all, have both intra- and extra-provincial aspects. Does this mean they can only be regulated effectively
by the enactment of interlocking federal and provincial legislation?
In the 1920s and 1930s, the PC and SCC seemed to believe that co-operative federal and provincial legislation was
the only way to effectively regulate the whole of a trade. The federal power to pass laws in relation to extraprovincial trade was interpreted narrowly by the courts. Even federal regulation of a trade that was predominantly
inter-provincial and international was struck down if it also had the effect of regulating local works or local
transactions: see The King v. Eastern Terminal Elevator, 1925 SCC. Similarly, in the Natural Products Marketing
Reference (1937), the PC held invalid a federal attempt to regulate the marketing of agricultural products that were
destined primarily for extra-provincial trade. As Chief Justice Duff put it in that case for the SCC (his views were
approved by the PC on appeal), "the scheme of this statute ...would not appear to be practicable... in view of the
distribution of legislative powers enacted by the Constitution Act, without the co-operation of the provinces."
In the post-World War II era, the SCC has broadened the scope of the first branch of s.91(2) by liberally interpreting
the pith and substance and necessarily incidental doctrines, thus leaving behind the Privy Council’s more rigid
“watertight compartments” approach to the interpretation of economic powers. The Supreme Court has upheld
federal statutes even if they have an impact on local trade or works so long as the pith and substance of the federal
law is the regulation of extra-provincial trade, and the incidental or secondary effects on provincial areas of
jurisdiction are necessary to the integrity of the regulatory scheme as a whole. See Murphy v. C.P.R., 1958 SCC
(upholding Canadian Wheat Board Act), The Queen v. Klassen, 1960 Man. C.A., 575 (leave to appeal to SCC
denied) (upholding Canadian Wheat Board Act's application to a local transaction) and Caloil Inc. v. A.G. Canada,
1971 SCC, 579 (federal regulation of trade in imported oil; impact on local transactions incidental to law’s pith and
substance).
The degree to which this change in direction will extend to the regulation of trade in products (other than grain and
oil) that are less predominantly destined for extraprovincial trade is uncertain. As Hogg says, "it is not yet clear to
what extent interprovincial elements of a less obvious kind would provide support for federal regulation." (Hogg
c.20.2(b), 2007 student ed. at 505).
The Queen v. Klassen (1960) (Man. C.A.) – TRITSCHLER JA
Facts: Part II of the Canadian Wheat Board Act required that grain be delivered to a grain elevator by the
producer to ensure no producer exceeded quota set, in order to maintain orderly international trade in grain.
Klassen was charged w/ not reporting deliveries of grain made to him; he argued that he wasn’t engaged in ET
so Act ultra.
Decision: Part II of the Act is necessarily incidental to the other provisions of the Act dealing w/ the
interprovincial and export trade in grain. Impractical if not impossible to draw distinction b/w appellant all other
handlers (or millers) of grain in respect of intra-provincial transactions.
Ratio: An Act that is not legislation “in relation to” property and civil rights but is legislation which in p/s is in
relation to trade and commerce (p&s in this case was “the provision of an export market for surplus grain” (cb
466)) and merely “affects” property and civil right incidentally, will be upheld as intra vires the federal
jurisdiction under first branch of 91(2), as regulation of inter-provincial trade.
Reasons: “If a producer might sell a portion of his crop to a mill for flour, feed or seed and not have it noted on
his permit book he would be able to deliver to the other channels of the marketing system grain up to his quota
and thus achieve an advantage over less fortunate producers who were not able to get their grains into the local
flour, feed and seed outlets. Equality of delivery opportunity is a basic feature of the scheme.” (cb 467)
Note: Bora Laskin hailed this as the first case to overcome the defects of PC jurisprudence around 91(2), which
he felt consistently refused to look at economic and social problems as a whole – Klassen withdraws Canada
from the days when the federal commerce power was an “old forlorn hope.” (cb 468-469)
Caloil Inc. v. AG Canada (1971) (SCC) – PIGEON J
Facts: To enforce its energy policy, feds (National Energy Board) passed regulation that prevented oil importers
from transporting any gas across a line running north-south through Ontario and Quebec (to restrict sale of
imported gas to Eastern Canada), Caloil loses license b/c violates, SCC says regs unconstitutional. Feds pass
new legislation and deny Caloil license. Caloil challenges legislation.
Decision: SCC unanimously upheld the law as intra vires.
23
Earlier case distinguished on grounds that new regulations were implicitly limited in scope to imported oil, while
previous ones applied to “any gasoline”, therefore new law was valid regulation of international trade.
Ratio: Federal regulation over trade matters in the provinces will be considered intra vires federal jurisdiction
under 91(2) if such regulation is “necessary” to the effective regulation of inter-provincial or international trade,
i.e. where the interference is an integral part of furthering an extra-provincial trade policy.
Notes:
 Swinton: Caloil expands the NI doctrine w/ respect to trade and commerce power, but still requires that
goods move across provincial borders before feds can regulate, and sometimes even this wouldn’t be
enough for feds if court felt that regulation of intraprovincial activity was not necessary to the effective
regulation of interprov/international trade. (cb 470)
Dominion Stores Ltd. v. The Queen (1980) (SCC) – ESTEY J
Facts: Dominion charged under Canada Agricultural Products Standards Act w/ selling bruised apples under
name “Canada Extra Fancy” b/c apples didn’t meet standards for use of that grade name as required by federal
law. Problematic b/c mandatory provisions of CAPSA only applied to ET, and wholly intra-provincial sales
only caught if seller voluntarily used trade name (Dominion voluntarily used name). Further problem was that
federal law mirrored requirements of existing Ontario law in setting mandatory grading standards for intraprovincial sales.
Decision: 5-4 strike down federal law as ultra vires. Regs were not NI to CAPSA.
 Key factor for majority was that it was preferable that only provincial law regulate intraprovincial sales,
otherwise the ‘wasteful overlap of administration or enforcement’ would defeat the federalism set out in
the Constitution.
Dissent: (Laskin) Logical that Parliament, having enacted compulsory grading requirements for agricultural
products in ET, should complement those provisions by giving opportunity to dealers to use same grade
prescriptions for locals transactions; convenient for dealers and consumers.
Note:
 At one point there was some debate over some parts of NAFTA that require Canada to commit to
eliminating practices that violate the agreement such as discriminatory pricing policies in provincially
owned liquor stores, favouring home grown wine; consider argument that those parts must be struck
down b/c in relation to provincial head of power (recall Labour Conventions: feds can only pass laws
implementing treaties where subject matter of treaty is w/in fed jurisdiction). Remember the tendency
to uphold legislation as long as in p/s in relation to right jurisdiction, event w/ ancillary effects.
Section 91(2): General Regulation of Trade -- The Second Branch of Parsons



the GRT power recognized in obiter in Parsons remained essentially dormant and unexplored until
SCC ruling in GM v. CNL (1989)
explored briefly by Laskin in MacDonald v. Vapor Canada (1977). Fed leg at issue, s. of 7e of Trademarks Act, created tort action for persons injured by dishonest business practices. Held in p/s in relation
to civil rights in province; GRT inapplicable b/c private enforcement of legislation, lack of regulatory
scheme under public supervision, and close similarity b/w statutory remedy and common law and civil
law remedies coming under provincial jurisdiction militated against a finding that s. dealt w/ “general”
regulation of trade.
even if federal economic regulation is predominantly in relation to intra-provincial trade (or a mix of
IT and ET), it can be upheld if it meets the criteria for validity pursuant to the GRT power set out in
GM:
1. Impugned legislation must be part of a more general regulatory scheme
2. Regulatory scheme must be monitored by the continuing oversight of a regulatory agency
3. Must be concerned with regulation of trade as a whole; must not be concerned with a particular
industry
4. Legislation should be of the nature that provinces, jointly or separately, would be constitutionally
incapable of enacting it.
5. the failure to include one or more provinces or localities would jeopardize the successful operation of
the scheme in other parts of the country.
24




Note: in GM court said these criteria are not necessary/determinative/exhaustive, but they haven’t added
any and in all cases under this test where leg upheld it did meet all criteria, so we don’t know what would
happen if only some were met
GRT power will not authorize the regulation of a single trade or industry, even if the industry is
dominated by a few large firms which advertise their products on a national basis (as in Parsons and Labatt
Breweries v AG Canada)
Swinton: GRT test requires judge to make controversial and difficult decisions about the importance of
the national interest at stake and the impact of federal regulation on provincial autonomy in the
economic sphere; old system unsatisfactory b/c hampered federal initiatives, but had advantage of
recognizing clear zone of provincial autonomy; old test was more objective and fact-based than new
GRT value-laden test b/c ct could focus on whether particular measure under attack dealt with inter or
intra- provincial trade.
Has so far been applied to law on trademarks and competition
The obiter dicta in Parsons recognizing a "general regulation of trade" branch of federal legislative jurisdiction over
trade and commerce, like the obiter dicta recognizing a national concern branch of the POGG power in the 1896
Local Prohibition case, held out the potential of expansive federal power that subsequent incarnations of the PC
were anxious to curtail. Indeed, Lord Haldane went so far as to deny that s.91(2) had any independent content in the
Board of Commerce (1922) and Snider (1925) cases. There were two occasions on which the PC did appear to rely
on the GRT branch of s.91(2) to uphold federal legislation: John Deere Plow Co. v. Wharton, [1915] A.C. 330
(upholding a federal power to incorporate companies) and the Canada Standard Trademark case, [1937] A.C. 405
(upholding the federal regulation of product standards tied to the use of a voluntary trademark). However, neither of
these cases is considered a useful precedent on the scope of the GRT power today. For the most part, the potential of
the GRT power lay dormant until 1989.
The SCC has breathed life into the GRT doctrine, beginning with the 1977 judgment of Laskin C.J. in MacDonald v.
Vapor Canada, [1977] 2 S.C.R. 134, although the federal legislation at issue in that case – s.7(e) of the Trade-marks
Act - did not satisfy the GRT criteria invented by Laskin. Section 7(e) created a tort action for persons injured by
dishonest business practices. Laskin CJ found that the pith and substance of s.7(e) was in relation to civil rights in
the province, and thus ultra vires. It could not be upheld pursuant to the necessarily incidental doctrine because it
was not part of larger scheme of national economic regulation in the public interest that would lift it out of
provincial jurisdiction in relation to private tort rights and into Parliament’s GRT power. In Laskin CJ’s words,
One looks in vain for any regulatory scheme in s. 7, let alone s. 7(e). Its enforcement is left to the chance of private
redress without public monitoring by the continuing oversight of a regulatory agency which would at least lend
some colour to the alleged national or Canada-wide sweep of s. 7(e). … Even on the footing of being concerned
with practices in the conduct of trade, its private enforcement by civil action gives it a local cast because it is as
applicable in its terms to local or intraprovincial competitors as it is to competitors in interprovincial trade. [at SCR
p.165]
For the first time in the post-war era, a majority of the Court upheld a federal statute under the GRT branch of
s.91(2) in GM v. City National Leasing, 1989 SCC (589). At issue was whether the Combines Investigation Act, now
the Competition Act, including its civil remedy provision, could be upheld as a valid exercise of federal power under
s.91(2). The Act seeks to regulate anti-competitive practices, like price discrimination that CNL alleged GM had
practiced, in all areas of the economy. The Act makes no distinction between intra-provincial and extra-provincial
transactions: it regulates trade as a whole. Clearly, it could not be upheld as in pith and substance in relation to the
regulation of extra-provincial trade. The Act would stand or fall on the GRT power.
The Court in GM set out five criteria (see 591-2) to guide determinations of whether federal legislation can be
upheld as a valid exercise of the GRT power: 1) the legislation must be part of a general regulatory scheme; 2) it
must be monitored by the continuing oversight of a regulatory agency; 3) it must be concerned with trade as a whole
rather than with a particular industry; 4) the provinces jointly or severally are constitutionally incapable of enacting
the legislation; and 5) the failure to include one or more provinces or localities would jeopardize the successful
operation of the scheme in other parts of the country. By limiting the federal GRT power to legislative schemes
having some or all of these features, the Court is attempting "to maintain a delicate balance between federal and
25
provincial power", “to ensure that federal legislation does not upset the balance of power between federal and
provincial governments.” (per Dickson C.J., at 591 and 592)
Applying this test to what is now the Competition Act, Dickson C.J. concluded that all five criteria were met:
1) The Act "embodies a complex scheme of economic regulation" (593).
2) It operates under the "watchful gaze" and "vigilant oversight" of a federal agency (594).
3) It is concerned with the regulation of trade in general (594); it is "aimed at the economy as a single integrated unit
rather than as a collection of separate local enterprises." (596)
4, 5) "Competition cannot be effectively regulated unless it is regulated nationally." (596)
The Court upheld the civil action in s.31.1 of the Act using the necessarily incidental doctrine. Even though the
creation of tort actions is a matter within exclusive provincial jurisdiction over “property and civil rights”, s.31.1
played an important role supporting the scheme of public, national regulation set out in the Act as a whole.
The GM decision was followed, and federal legislation upheld pursuant to the GRT power for the second time in the
modern era, in Kirkbi v. Ritvik Holdings (“Lego v. Mega Bloks”) 2005 SCC (S77). At issue was the constitutionality
of the statutory tort action for “passing off” in s.7(b) of the Trade-marks Act. Section 7(b) creates a civil action that
can be pursued in the Federal Court for losses resulting from a person directing “public attention to his wares,
services or business in such a way as to cause or be likely to cause confusion in Canada… with the wares, services
or business of another.” The practical significance of s.7(b) is that it permits the holders of unregistered trade-marks
to recover damages from competitors who have marketed their products in a confusing manner that trades on the
good-will or brand loyalty associated with their trade-marks. The Supreme Court had little difficulty upholding the
Trade-marks Act as a whole, finding that the Act met the five criteria set out in GM. The difficult question was
whether s.7(b) could be upheld as necessarily incidental to the Act as a whole. Like s.7(e) of the Trade-marks Act
declared ultra vires in Vapor Canada (see above), s.7(b) appears to be a broad statutory tort right unconnected to the
scheme of trade-mark registration set out in the Act as a whole. Nevertheless, the Court found that s.7(b) was
sufficiently well-integrated into the Act’s larger scheme of regulation. In LeBel J’s words, “Without this provision
there would be a gap in the legislative protection of trade-marks. This would create inconsistencies in the protection
of registered and unregistered trade-marks and lead to uncertainty. Section 7(b) is sufficiently integrated into the
federal scheme and, in this respect, is significantly different from s. 7(e).” (S83, para. 36) As in GM, the Court in
Kirkbi used the GRT power and the necessarily incidental doctrine to expand the scope of federal economic powers.
Both cases suggest that the Court may be open to further expansion of federal jurisdiction over economic regulation
in the future.
As the GM and Kirkbi cases illustrate, the utility of the GRT branch of legislative power from Parliament’s point of
view is that, unlike the first branch of s.91(2) as defined in Parsons, it will enable federal regulation of both the
intra- and extra-provincial aspects of trade if a court is satisfied that the legislation, in pith and substance, enacts a
national scheme of general economic regulation that transcends provincial interests and could not be effectively
accomplished by the provinces.
Apart from laws regulating trade-marks and competition, what other kinds of national regulation of the economy can
Parliament enact pursuant to the GRT power? It has been suggested that the GRT power could form the basis for the
establishment of a national securities commission by the federal government (see, e.g., the three constitutional
opinions received in 2003 by the Wise Persons’ Committeee, aka the Committee to Review the Structure of
Securities Regulation in Canada). Federal securities regulation would involve a regulatory scheme and a regulatory
agency, and also would be concerned with the need of corporate enterprises to raise capital regardless of the trade in
which they are engaged. However, the last two criteria set out in GM raise difficulties, as the provinces currently
have the power to regulate the trade in securities, and it is not apparent that they are not capable of continuing to do
so effectively. The current federal government has expressed strong support for a national securities regulator (as
has the Ontario government: see the Crawford Panel on a Single Canadian Securities Regulator). However, the idea
remains controversial from constitutional and political perspectives, and a bill has yet to emerge in Parliament.
MacDonald v. Vapor Canada (1977) (SCC) - LASKIN
Facts: Challenge to federal Trade Marks Act s.7(e) which created a tort action for persons injured by dishonest
business practices.
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Decision (Laskin): struck down as ultra (but important discussion of GRT doctrine)
 the pith and substance of 7(e) was in relation to property and civil rights and thus ultra vires
 could not be upheld pursuant to NI b/c not part of larger scheme of national economic regulation in the
public interest that would lift it out of provincial jurisdiction over private tort rights and into
Parliament’s GRT power.
Labatt Breweries of Canada Ltd. v. AG Canada (1980) (SCC) - ESTEY
Facts: Federal Food and Drugs Act included regulations prescribing min and max alcohol content for beer
marketed as “light beer”. Labatt marketed “Special Lite Beer” which exceeded max allowable; Labbat
challenged validity of the Act and regs. Feds relied on 91(2), crim law power and pogg powers.
Decision: 6-3 held Act and regs, insofar as applied to malt liquors/lite beer, ultra vires.
 first branch of persons not applicable as impugned reg concerned w/ production and local sale
 cannot be justified as exercise of GRT power
o regulation of a single trade or industry is not of general national concern, impugned provisions
concerned w/ single industry that was ‘substantially local in character’ (cb 475)
o “neither national ownership of a trade or undertaking or even national advertising of its
products will alone suffice to authorize the imposition of federal trade and commerce
legislation” (cb 475)
 cannot be justified under criminal law or pogg power: provisions involved detailed regulations, and not
directed at protection of health or prevention of deception; no matter of national concern
Dissent:
Pigeon: Feds have authority under 91(2) to enact laws relating to trade marks, and legislation here created a
“national mark” w/in the exclusive use of the feds.
Laskin: authorized under GRT power b/c Parliament should be able to fix standards that are common to all
manufacturers of foods, including beer, drugs, cosmetic and therapeutic devices to equalize competitive
advantages in business w/ these products.
Note: under s.5(1) of the Act the feds could still enforce product standards.
AG Canada v. Canadian National Transportation Ltd. (1983) (SCC) – DICKSON J
Facts: Challenge to the feds ability to initiate prosecutions for offences under the federal Combines Investigation
Act, b/c prosecution of criminal offences was a power that belonged to provinces under 92(14) respecting admin
of justice w/in provinces.
Decision: Act upheld.
Majority supported Act under the criminal law power.
Dickson (for 3 members) would have supported Act under GRT power, b/c he believed the provinces had
exclusive authority to prosecute criminal offences.
Reasons (Dickson, not majority): “[General legislation aimed at the economy as a single integrated national unit]
is qualitatively different from anything that could practically or constitutionally be enacted by the individual
provinces either separately or in combination… The line of demarcation is clear between measures validly
directed at general regulation of the national economy and those merely aimed at centralized control over a large
number of economic entities.” (cb 478)
G.M. v. City National Leasing (1989) (SCC) – DICKSON CJC
First time in modern era fed leg upheld pursuant to GRT power/gives factors
Facts: Combines Investigation Act (now the Competition Act) regulates anti-competitive practices in all areas of
the economy (no distinction b/w intra and extra provincial transactions). CNL alleges GM practiced price
discrimination. Clearly couldn’t be upheld as in p/s in relation to regulation of ET.
Decision: majority upholds federal statute under GRT branch of s. 91(2). (s.31.1- civil remedy provision upheld under necessarily incidental doctrine, see earlier).
DICKSON: Five Indicia for Second Branch of Parsons –
Criteria for determining whether federal legislation can be upheld as valid exercise of the GRT power (not
exhaustive):
1. the legislation must be part of a general regulatory scheme;
2. it must be monitored by the continuing oversight of a regulatory agency;
3. it must be concerned with trade as a whole rather than with a particular industry;
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(These first 3 criteria were first set down by Laskin in Vapor, then adopted by Dickson in Canadian
National Transportation).
4. the provinces jointly or severally are constitutionally incapable of enacting the legislation; and
5. the failure to include one or more provinces or localities would jeopardize the successful operation of
the scheme in other parts of the country.
(These last 2 criteria added by Dickson in CNT).
Application (all criteria are met):
1) The Act embodies a well-integrated scheme of regulation
2) It operates under the "watchful gaze" of a federal agency
3) It regulates anti-competitive practices generally in all industries
4, 5) Provinces lack ability to regulate all anti-competitive activity effectively – if one province doesn’t
do it, can’t have serious anti-competitive laws (see cb 485-486 for discussion supporting this
proposition).
Notes: Dickson: finding should not be interpreted as authority for upholding all provisions creating private civil
action that are attached to a valid trade and commerce regulatory scheme or any other particular type of scheme.
Kirkbi v. Ritvik (2005) (SCC)
Second time in modern era – laws regulating trademarks
Facts: Lego arguing that Mega Bloks has “passed off” its goods, brings action under s.7(b) of the federal TradeMarks Act, which creates a civil action that can be pursued by holders of unregistered trade-marks in the Federal
Court for losses resulting from “passing off”. (Act puts in place trademark registry; s. creates national remedy)
(Legos patent for interlocking bricks expired, so couldn’t sue for patent infringement and registrar of trademarks
refused to register brick itself). Mega: creation of statutory torts is a matter under “property and civil rights”; 7(b)
not related to regulatory scheme in any principled degree b/c it is chiefly a registration scheme.
Decision: Trademarks Act easily upheld as a whole (meets 5 criteria set out in GM) and find s.7b is sufficiently well
integrated into Act’s larger scheme of regulation using NI.
Notes: contrast w/ Vapor which struck down a civil remedy provision in federal act; this also appears to be broad
statutory tort right unconnected to scheme of trademark registration set out in Act as a whole
Notes on GM and Kirkbi
 As in GM, ct used GRT power and NI to expand scope of federal eco powers
 Both cases suggest the Court may be open to further expansion of federal jurisdiction over economic
regulation in the future
 Both cases illustrate that the utility of the GRT branch of legislative power from Parliament’s
point of view is that, unlike first branch of s.91(2) defined in Parsons, it will enable federal
regulation of both inter and extra-provincial aspect of trade if a court is satisfied that in p/s the
legislation enacts a national scheme of general economic regulation that transcends provincial
interests and could not be effectively accomplished by the provinces
Note on Arguments for Expanding Federal GRT Power:
Pros: Uniformity of regulation, better way of dealing with increasingly interconnected markets, general feeling
the fed is too weak, blah, blah. John Whyte argues:
 “The national dimension idea of peace, order and good government is the right idea by which we can
understand federal jurisdiction over trade and commerce. When the government management of trading
activity is in response to a generally experienced need, and when it can be demonstrated that the
mechanisms of state involvement in the economy are general mechanisms dependent on national
implementation and national coordination, then the general trade idea of trade and commerce will be
properly available as constitutional support.” (cb 489)
Cons: “While the old intra/interprovincial distinction was not altogether satisfactory because it hampered federal
initiatives, it had the advantages of clearly recognizing a zone for provincial autonomy in economic regulation.
As well, it avoided the problem of judicial balancing of national and provincial interests on a case by case basis
in search for the “national concerns” underlying particular federal measures.” (cb 474)
CRIMINAL LAW (s. 91(27)):
the broadest and most flexible of all federal powers
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Section 91(27) confers on Parliament exclusive jurisdiction in relation to criminal law and procedure
The establishment and administration of courts of criminal jurisdiction is expressly excluded from the
scope of s.91(27), and expressly included in s.92(14) as a matter within provincial jurisdiction over the
"administration of justice"
o Section 92(14) authorizes provincial policing, prosecution of Criminal Code offences
(exception to rule that powers of enforcement rest only w/ level of govt that enacted the law)
and prov inquiries into matters of concern to justice system (can focus on criminal justice
matters, as long as inquiry is not a “substitute police investigation” into a specific offence, in
which case it would be in p/s in relation to criminal procedure - Starr v. Houlden 1990 SCC p
425)
federal government has jurisdiction in relation to penitentiaries (for offences w/ sentences of 2 years of
more) (s.91(28))
provinces have power over provincial prisons which hold inmates sentenced to less than 2 years
In addition to the Criminal Code, a wide range of other statutes have been upheld under the criminal
law power including: prohibitions of anti-competitive practices in combines legislation; consumer
protection provisions of the Food and Drugs Act (R. v. Wetmore, 1983); the Tobacco Products Control
Act (now Tobacco Act) (RJR-MacDonald); the now defunct Lord's Day Act (Sunday closing legislation
struck down on Charter grounds in Big M Drug Mart 1984); the Firearms Act (federal gun control
legislation; Reference re Firearms Act 2000); and the Young Offenders Act (R. v. S.(S.) 1990).
Due to changing nature of criminal law, hard to define it; open-ended definition of a head of power is not
consistent with federalism
Concern that the court has defined fed criminal law power too broadly, and so could threaten division
of powers
a trilogy of recent SCC decisions emphasized the breadth of Parliament’s “plenary” power to enact
criminal laws:
o RJR-MacDonald 1995 SCC (392): 7-2 ruling that the Tobacco Products Control Act is a valid
exercise of s.91(27) (much of the Act was struck down on Charter grounds)
o Hydro-Quebec 1997 SCC (401): 5-4 ruling upholding Part II of CEPA as a valid exercise of
s.91(27) (Part that regulates the creation, use disposal etc of toxic substances); most important of
trilogy b/c the most expansive definition of criminal law power; likely there will be a push at
federal level to enact increasingly significant environmental legislation through the criminal law
power
o Firearms Reference 2000 SCC (412): unanimous ruling upholding the Firearms Act pursuant to
s.91(27)
Eco regulation tends to be restricted to feds b/c don’t want it to get messy, for morality issues more willing to
allow concurrency
Defining Criminal Law
Reference re The Board of Commerce Act (1922, PC): “Domain of Criminal Jurisprudence” (Haldane) (cb
497)
 “criminal laws are those in the traditional domain of criminal jurisprudence”
 unsatisfactory b/c restricted power to historical content of criminal law and thus prevented Parliament
from punishing new social wrongs; frozen conception inconsistent with “living tree” principle
 repudiated by SCC: see especially RJR-MacDonald and Hydro Quebec
PATA (1931): Prohibition and Penalty (Atkin)
 “the only limitation on the plenary power of the Dominion to determine what shall or shall not be
criminal is the condition that Parliament shall not in the guise of enacting criminal legislation in truth
and in substance encroach on any classes of subjects enumerated in s. 92” Atkin in PATA
 “We can properly look for some evil or injurious effect upon the public against which the law is
directed. That effect may be in relation to social, economic, or political interests.” (498)
 unsatisfactory b/c enabled Parliament to pass laws in relation to any subject matter so long as did so in
crim law form (of a prohibition coupled w/ penalty)
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
due to unbounded nature, defn has long been regarded as incomplete/doing violence to federalism (b/c
of implications of paramountcy doctrine), however appears to have been reborn in La Forest’s majority
judgment in Hydro-Qbc
Margarine Reference (1949 SCC) (498) (combines Board of Commerce and PATA)
Leading Case for Federal Criminal Law Power
Issue: validity of prohibitions on manufacture/sale/import of margarine in s.5(a) of the federal Dairy Industry Act.
Decision (Rand): S. 5a does not meet triple P test b/c does not pursue a criminal purpose; preferential economic
regulation (protection of the dairy industry) not grounded in view that activity in question is a serious evil. S. 5a
severed from Dairy Act; none of the Act survives under the crim law power, but prohibition of imported margarine
survives under first branch of 91(2).
“Triple P” Test:
•
•
In addition to a prohibition and a punishment, a valid criminal law must be pursuing a typically criminal public
purpose
A typically criminal public purpose is defined as the punishment or suppression of anything that Parliament
considers to be a threat to “public peace, order, security, health, morality” (not exhaustive – in Hydro SCC
unanimously recognizes that “the protection of a clean environment” is a public purpose sufficient to support a
criminal prohibition and insist any legitimate public purpose will suffice)
•
For federal legislation to be upheld under crim law power, it must be dealing with something considered to be a
social evil, seriously harmful to public as a whole
Notes:
•
•
If sci evidence hadn’t changed/ margarine still considered dangerous to health– upheld
•
if courts continue to define criminal law purposes broadly and show strong deference to Parliament’s definition
of criminal wrongs, Rand’s purpose test will in fact impose no constraint on the federal criminal law power after
all; La Forest's judgment in Hydro-Québec seeks to persuade us that a return to a substantively unbound criminal
law power poses no danger to the federal/provincial balance of powers.
Triple P test that emerges from combined elements offered by PATA and Margarine Reference is still applied
today
Limits on federal power under s.91(27)
Trend of recent cases has been for courts to loosen the constraints they impose on federal jurisdiction.
(i) Formal Limits:
 The requirements of a prohibition and a penalty mean that:
o The ability of the federal government to include ancillary civil remedies in criminal legislation is a
circumscribed one; and
o the more elaborate a regulatory scheme is, the less likely it is s to be upheld as valid criminal law
(GM v City) however, Hydro-Quebec may bring this into question
 SCC has not limited crim power to prohibitions and penalties, for example, upheld as valid exercises of crim
law power leg that creates exemptions to prohibitions, even where exemptions are determined by the exercise
of discretionary administrative authorities, as was the case w/ old therapeutic abortion provisions of the CC
(Morgentaler 1975; also RJR upheld Tobacco Products Control Act despite several exceptions to the reach of
its broad prohibitions on tobacco marketing)
 Hydro-Quebec upheld CEPA which includes an administrative process for assessing the toxicity of
substances as a valid exercise of criminal law, despite the existence of an administrative framework for
determining what substances were criminal
o LaForest: admin features of Act all directed at defining scope of the prohibs that were to be set out in
regs and which were the dominant characteristic of the law
o suggests that existence of regulatory features may not be fatal to the legislation
 Laws that do not take the traditional form of a criminal law, but that are aimed at preventing crime have also
been upheld as valid exercises of the crim law power (AG Can. v. Pattison (ACA): attempt to reduce harm
caused by firearms valid)
 Firearms Act, which puts in place a system of mandatory registration and licensing of firearms, is a valid
exercise of the criminal law power following reasoning in Pattison (suppression of conditions that are likely
30
to lead to crime/constitute a threat to public safety) (Alta tried to challenge it as in relation to property and
civil rights of gun owners, court rejected argument in Reference re Firearms Act 2000)
(ii) Substantive Limits:
 the criminal law power cannot sustain legislation that does not seek to prevent or punish public wrongs
or evils
 attempts that have failed:
o to regulate the insurance industry (Reciprocal Insurers, 1924 PC)
o to prohibit the sale and manufacture of margarine (Margarine Ref)
o to prescribe “legal recipes” for beer and other foods and beverages in the Food and Drugs Act
(Labatt, 1979 SCC; Dominion Stores, 1980 SCC) (no evidence dangerous)
o punishing driving while one’s license was suspended for reasons that included the breach of
provincial regulations (Boggs, 1981 SCC)
 However, the reliability of these precedents may be questioned after the Hydro-Quebec case b/c there, the
Court said that any legitimate public purpose can sustain a criminal law. The only real limit in this area, La
Forest J. wrote, is imposed by the colourability doctrine: that is, Parliament cannot invade provincial
jurisdiction by dressing up a law in a criminal form (para. 121, p 403).
Provincial Power to Enact Penal Laws: Section 92(15)
 provinces have an “ancillary” power to include punitive provisions (“fine, penalty or imprisonment”) in
otherwise valid provincial laws: s.92(15)
 Ancillary: cannot operate on its own to uphold provincial power, but can support other heads of
provincial power, so long as the provincial statute is in p/s related to a subject matter that falls
within some head of power in s. 92
 This power has had the effect of creating concurrent jurisdiction “over much of the field which may loosely
be thought of as criminal law” (Hogg)
 Example: provincial highway traffic acts regulate traffic on the road; court has said these laws are in p/s in
relation to local matter per 92(16) or in relation to property and civil rights, and fact there are penalties
provisions is valid as per 92(15)
 Contrast w/ economic regulation: in Parsons the potential for overlapping jurisdiction was limited through
mutual modification so that feds have jurisdiction over inter and extra provincial trade and provinces for intra
provincial trade; may think court would deal likewise with criminal law power, but has not happened
 Origins of patterns in this area of law go back to temperance cases – cts upheld federal temperance act and
upheld provincial jurisdiction is local prohibition, saying there is a dual aspect when it comes to regulating
consumption of alcohol
 General tendency has been to uphold provincial penal provisions – courts have rejected federalism challenges
to provincial laws that provided for:
o the compulsory treatment of heroin addicts (Schneider, 1982 SCC),
o the apprehension and detention of juvenile prostitutes (Alberta v. K.B. 2000 Alta QB),
o that required businesses to close on Sunday for secular reasons (Lieberman, 1963 SCC; Edwards
Books 1986 SCC),
o that prohibited public assemblies (Dupond, 1978 SCC), that required all films and videos to be
submitted to a regulatory agency prior to distribution in a province (McNeil, 1978 SCC, cb416; It's
Adult Video Plus Ltd. v. McCausland, (BCSC); R. v. Glad Day Bookshops 2004 Ont. Sup. C.J.),
o that regulated highway traffic (e.g., Egan 1941 SCC; Ross 1973 SCC; Horsefield 1999 Ont CA),
o that prohibited soliciting money on roads and other public spaces (R. v. Banks 2007 Ont CA,
upholding the validity of Ontario’s Safe Streets Act),
o that regulated nude dancing in taverns (Rio Hotel 1987 SCC) (see cb 531-532), and
o that prohibited lap dancing (Ont Adult Entertainment Bar Ass'n, 1997 OCA)
 difficult line to draw between:
1. valid provincial penalty provisions [s.92(15)] used to enforce laws that are in pith and substance grounded
in some other s.92 head of power: eg Dupond 1978 SCC (420); McNeil 1978 SCC (416); and
2. provincial laws that are invalid because in pith and substance they are aimed at proscribing and punishing
social evils, and thus are an invasion of exclusive federal jurisdiction to pass criminal laws: eg, Westendorp
1983 SCC (421); Morgentaler 1993 SCC (213)
31

dominant tendency BY FAR is towards concurrency or overlapping jurisdiction in relation to
criminal law broadly defined
RJR MacDonald Inc. v. Canada (AG) (1995, SCC) (500)
Scope of criminal law power is always expanding and regulatory may be criminal.
Facts: Two tobacco companies challenging federal Tobacco Products Control Act which prohibited all advertising
and promotion of tobacco products, with the exception of advs for foreign tobacco products in foreign magazines.
Act also required display of health warnings on all tobacco products. Violation punishable by fines up to $300 000,
or up to 2 years imprisonment.
Issue: Is legislation banning advertising and promoting tobacco products ultra vires as an intrusion into provincial
jurisdiction over advertising grounded in s.92(13) or (16)?;
Is it an infringement of 2b of the Charter?
Decision: Majority found legislation banning tobacco advertising intra vires as a legit exercise of crim law power,
despite the fact it is a largely regulatory scheme (but declared central provisions of no force/effect b/c unjustifiable
infringement of 2b.
 Crim power interpreted broadly to include any prohibited act which has an undesirable evil or injurious
effect; scope of fed power to enact crim legislation w/ respect to health concerns is broad, given tobacco
kills, Act promotes legit concern
 1. Affinity w/ traditional criminal law concern: Substantive aspects of criminal law are flexible
o rejected argument that it was not a valid exercise of criminal b/c doesn’t involve conduct having an
affinity w/ traditional criminal law
 As long as goals are valid criminal law, Parliament can use whatever means they want to restrict actions
o rejects argument that Parliament cannot criminalize an activity ancillary to an evil without
criminalizing the evil itself;
 2. The creation of exemptions under the criminal law power: criminal law can have exceptions w/o losing
its status as criminal law
o rejects argument that Act is fundamentally regulatory in nature and not criminal due to exemptions
(which apply to some; US magazine ads)
Ratio: Broadened scope of criminal law power. Purpose just needs to be to protect the public against an evil.
Dissent (Major): Parliament can require manufacturers to place warnings on tobacco products which are known to
have harmful effects on health, but is not entitled, under its criminal law power, to prohibit all advertising and
promotion of tobacco products and restrict the use of tobacco trademarks; lesser threats to society do not fall w/in
91(27); persuasion to smoke doesn’t constitute criminal conduct (if smoking isn’t evil, how can advertising be?)
R. v. Hydro-Quebec (1997, SCC) (cb 508) loosens formal constraints of fed crim law power
Facts: The federal Can. Enviro Protection Act set up a process regulating the use of toxic substances (toxic
substances and enviro defined very broadly); complex admin scheme. Lots of ministerial discretion is permitted.
There are penalties, but no prohibitions in Part II of CEPA, only the (delegated) power to enact prohibitions given to
cabinet through regulatory process. Hydro-Quebec was charged with a violation of CEPA relating to the emission of
PCBs into the environment.
Issue: Is CEPA a regulatory scheme, in which case it would encroach on provincial jurisdiction, or is it a valid use
of the federal criminal law power?
Decision: Legislation is justified under the criminal law power, meets formal constraints.
Reasons (La Forest): Most current explanation of criminal law: The purpose of the criminal law is to protect
our fundamental values
 protection of a clean enviro is a public purpose w/in Rand’s formulation in Marg. – pollution is an ‘evil’
feds can seek to suppress under crim power
 not controversial that enviro crimes upheld pursuant to crim power, harder part is whether it meets the
formal definitions of criminal law
 p/s of act is the enactment of prohibitions for criminal law purposes, notwithstanding the view that the Act
is an elaborate regulatory scheme, it is a prelude to the purpose of the statute which is putting in place
prohibitions
 When dealing with prohibitions and penal sanctions, it is not of concern if there is an interference with
property and civil rights (i.e. the legislation prohibits sale, import, etc. of certain toxins), rather we are
concerned with whether or not the prohibitions are targeted at an evil
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Ratio: As long as the legislation’s practical focus is on impact on social practices through prohibitions and
penalties, even if there is an elaborate regulatory scheme, it can still be upheld under fed crim law power. Both feds
and provinces can regulate enviro.
Dissent (Lamer and Iacobucci w/ Sopinka and Major concurring):
 Determining when legislation crosses the line from criminal into regulatory involves considering nature and
extent of regulation it creates and context w/in which it purports to apply.
 scheme which is fundamentally regulatory not saved by calling it an “exemption”.
 CEPA is an attempt to regulate pollution, not a prohibition; a prohibition will normally be “self-applied”
but this act requires the intervention of an administrative agency before there is an offence. Does not fit w/
our understanding of formal limits of criminal law power;
 Majority decision significantly loosens formal constraints of criminal law power
 [POGG: The provisions of the act and the overly broad definition of “toxic” mean it applies not just to
chemical pollution and not just to interprovincial pollution; the act may apply to pollution that is only local
and temporary  since provinces are able to deal effectively w/ such pollution it fails POGG’s “prov
inability test”]
Notes:
 Division of powers concern as environment not a head of power in 91/92, so jurisdiction must be
linked to another head of power
 LaForest dissented in Crown; reconciles that: this decision does not pose threat to provincial autonomy;
instinct underlying his reasoning is that we can have national leadership and provincial experimentation,
i.e. best of both worlds
Reference Re. Firearms Act (1996, SCC) (cb 520)
Facts: Feds passed new gun control legislation establishing a comprehensive licensing system for all firearms and
outlawing some, failing to comply was made an offence under CC. Alberta challenged the feds power to enact by
saying that the scheme was regulatory rather than criminal because of the complexity of the legislation and the
discretion it gave to the chief firearms officer. Like a car registry.
Decision: Unanimously upheld laws as exercise of fed jurisdiction over criminal law.
Reasons: Pith and substance is public safety. Comes right from Rand’s original list in Margarine.
 In p/s the law is directed to enhancing public safety by controlling access to firearms through prohibitions
and penalties, bringing it under fed crim power
 No problem in finding valid crim law purpose: while the law has regulatory aspects, they are secondary to
its valid criminal law purpose of regulating guns as dangerous products (distinguished from other
regulatory schemes b/c of inherently dangerous nature of firearms)
 Formal requirements: ct focused on CC prohibition of possession of firearm w/o license and registration
certificate, so didn’t need to rely on NI doctrine
 intrusion of the law into the provincial jurisdiction over property and civil rights is not so excessive to upset
balance of federalism b/c its effect on property rights were incidental. Provinces can continue to address
insurance, permissible locations of use, etc.
Note: This case continued the trend of expansive interpretation of the criminal law power. However, there is
evidence that the SCC may be uncomfortable with the sprawling nature of criminal powers. It is a little
disconcerting that the SCC didn’t get into rights or liberty arguments at all.
PROVINCIAL POWER TO REGULATE MORALITY AND PUBLIC ORDER
1. s. 92(14) gives provinces jurisdiction over admin of justice in the province; this combined w/ fed delegation to
provinces of power to prosecute CC offences, means that much of the federal CC is provincially enforced
2. in some cases feds have, thru mechanism of conditional legislation, drafted its crim laws in ways that allow
them to be shaped by provinces to respond to local conditions
o AG Ont. V. Hamilton Street Railway (1903, PC) Sunday observance laws found to be federal matter under crim
power, feds followed general prohibition w/ exculpatory clause ‘except as provided in any Provincial act or
law’; R. v. Furtney CC prohibition on lotteries followed by exemption for provinces if in accordance w/ terms
of Lt Gov
3. Judicial recognition of concurrency – S. 92(15) allows provinces to enact penal sanctions, but “ancillary”
power
33
Re Nova Scotia Board of Censors v. McNeil (1978, SCC) (524) Pre Charter
Facts: NS Theatres Act regulated showing films, required all films be submitted to censor board having unfettered
power to permit or prohibit showing of film, or show w/ changes. Private citizen McNeil seeks declaration
legislation is ultra after Last Tango in Paris ban.
Decision (Ritchie): Provisions of the Act upheld.
 Act and regulations, read as a whole, are primarily directed to the regulation, supervision and control of
film business w/in province; impugned provisions constitutes exercise of provincial authority over
transactions w/in the province
 Even if accepted that impugned leg concerned w/ criminality (which he doesn’t) it would still have to be
noted it’s preventative not penal, and provinces have the authority to pass legislation directed towards
prevention of crime
Ratio: Legislation enforcing a local standard of morality is not necessarily an invasion into federal criminal law
power if the measure is preventative rather than punative.
Dissent (Laskin): does not think provinces should have the capacity to supplement indecency prohibitions in CC;
does not want to leave as much room as majority for overlap to pursue what are in essence, crim law purposes.
 Several attempts to challenge prov. censor boards (lower cts) have failed, including Charter arguments; one
part of provision invalidated, but not main part.
 Laskin dissented in McNeil and Dupond – concern to protect civil liberties by means of fed criminal law
power
AG Canada v. Dupond (1978, SCC) (528)
Facts: Following period of numerous public demonstrations, many violent, Montreal passes bylaw prohibiting
parades or other gatherings that endanger safety/peace/public order. One section gave city’s exec committee power
to make an ordinance prohibiting public gathering if there were reasonable grounds to believe they would endanger
safety/peace/pub order. Penalties for violation – fines and imprisonment. (D – ratepayer)
Decision: Bylaw and ordinance intra vires as a reg. of municipal public domain, a local matter. In contrasting
challenged enactments with CC provisions dealing w/ breach of peace, Beetz emphasized preventative character of
municipal regulations
Dissent (Laskin; Spence and Dickson concurring): bylaw and ordinance ultra vires attempt to reinforce criminal
law; mini-criminal code, dealing w/ breach of peace; emphasizes Draconian nature of law in barring all gatherings,
even those for innocent purposes.
Westendorp v. The Queen (1983 SCC) (529)
Exceptional case where courts have struck down provincial penal statutes as ultra vires for
overreaching/invading criminal law power (see also Morgentaler at start)
Facts: W charged w/ being on a street for the purpose of prostitution in contravention of by-law of City of Calgary.
(By-law dealt generally w/ regulation of use of city streets, but was amended to add explicit provision dealing w/
prostitution)
Decision: unanimous decision to strike down municipal by-law regulating public order and morality as an intrusion
into the federal criminal law power.
 Formal features of bi-law that made it vulnerable to this challenge and led to its demise:
 1. the argument that it is really about controlling nuisance on the street not plausible b/c singles out one
type of commercial conversations on the street, suggests instead that dominant characteristic is punishing
behaviour considered to be a social evil;
 2. the penalty provision is really heavy and the size of it was much larger than those attached to associated
by-laws that regulate the streets
 3. SCC aware of legislative history: bi-law enacted in particular context: after case that interpreted
solicitation provisions of CC narrowly as requiring pressing and persistent solicitation and in the context of
CC provisions not working to stop prostitution they put in these bi-laws attempting to fill the gap
R. v. Morgentaler (1993 SCC) (532)
Facts: Challenge to validity of Nova Scotia’s Medical Services Act which made it an offence to give 9 medical
services outside of province’s hospitals, including abortions.
•
province: intra vires; relied on power to make laws in relation to hospitals [s.92(7)], the medical profession
[s.92(13)], and health [ss.92(13) and (16)]
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•
Morgentaler: ultra vires; punitive regulation of abortion, thus ultra vires as an invasion of exclusive federal
jurisdiction to pass criminal laws [s.91(27)]
Issue: Whether the purpose of the legislation is to control the quality and nature of the province’s health care system
or to suppress/punish what it perceives to be the socially undesirable conduct of abortion.
Decision: Even though Act has a significant impact on the performance of medial services, regulation of hospitals
and medical profession, the dominant characteristic of the Act is the punishment of abortion so it is ultra vires as an
invasion of the federal government’s jurisdiction over criminal law;
Notes:
 in both, legislation dealt with subject matter that is traditionally dealt with by feds under crim law, and
provinces thought fed leg not sufficient, tried to fill gap
 Appears from these two cases that if legislative history suggests that provincial legislature's dominant
purpose is to punish conduct by bolstering existing CC provisions, or replacing old ones, then the
provincial legislation will be vulnerable to being characterized as criminal law in p/s; especially so
where the province lacks a plausible alternative characterization of the law's purpose that could serve to
ground it in provincial heads of power
Note on Provincial Commission of Inquiry and the Criminal Law Power
 concerns about provincial intrusion on fed crim power may also arise in contexts where provincial laws are
seen as potentially undermiing the procedural protections offered to an accused under criminal law –
 one such context is where a prov commission of inquiry has been established to examine conduct that has
also given rise to a criminal investigation or charges
 General pattern of case law has been to find a DA w/ respect to the subject matter of inquiry, so that any
impact on fed crim power held to be merely ‘incidental’
 BUT in Starr v. Houlden (1990, SCC) (425), SCC departed from pattern and found a provincial
commission of inquiry (investigating allegations of improper financial dealings b/w prov govt officials and
private individuals) to be an ultra vires intrusion on fed crim power – decision emphasizes narrow focus of
commission on two named individuals and by view of fed crim power as a source of protection for
individual rights; characterized it as “in substance ...a substitute police investigation and preliminary
inquiry with compellable accused in respect of a criminal offence under s. 121 of CC’
Starr v. Houlden (1990) (SCC) – In this case the SCC departs from a steady pattern of upholding provincial inquiry
boards and finds one to be an ultra vires intrusion on the criminal power. (cb 533)
4 stages of Charter analysis
1. Does the Charter apply to the facts?
a) S. 33: Notwithstanding Clause
b) Does the Charter right or freedom apply to the claimant?
i) Who can claim the benefit of rights and freedoms
ii) Standing
c) Is there a government decision that is being impugned by the claim?
i)
s. 32
ii)
Defining Government Actors
1. Control Test (Stoffman; Douglas College; McKinney; Lavigne)
2. Exercise of Governmental Functions (Godbout)
iii)
Private Actors
1. Entities Implementing Government Programs (Eldridge; Blencoe)
2. Entities Exercising Statutory Powers of Compulsion (Slaight; Blencoe; possibly
private security guards)
iv)
Charter and the common law (Dolphin; Hill; Salituro; Pepsi-Cola)
v)
Government Inaction and the Charter (Vriend)
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2. Does the challenged government action interfere in purpose or effect with the exercise of a Charter right or
freedom? (ss.2-23) Onus on claimant.
3. if so, is the interference with the exercise of rights and freedoms a “reasonable limit”, “prescribed by law”,
that can be “demonstrably justified in a free and democratic society”? (s.1) – Onus shifts to government here to
show on BOP that interference is reasonable limit etc.
 If government fails to meet its burden, move to stage 4
4. if not, what is the appropriate remedy? (ss.24 and 52)
 declared invalid/of no force or effect
 if challenge is not to legislation or a regulation or other form of legal rule, s. 52 remedy is of no assistance
 s. 24 provides that anyone whose rights/freedoms have been infringed can go to court and seek an
appropriate and just remedy i.e. gives court broad discretion in determining appropriate remedy when a
person’s charter rights are violated
Interpretive provisions of the Charter
 Preamble: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of
law:”
o Provincial Judges Reference: court gave great weight to preamble to CA 1867
o Manitoba Language Reference: Rule of Law may have normative content that imposes restrictions on
government power
o Supremacy of God: so far SCC has avoided it and has not woven it into our jurisprudence, but can’t
live in situation where parts of preamble given great weight and other parts ignored; in the future,
litigants may rely on this clause to fashion new ideas of relation b/w God and State; current situation is
an opportunity for people who believe that Canada has a distinct tradition of connection b/w religion
and state using preamble of Charter as evidence
 s.25: Aboriginal rights
o Charter should not be interpreted in a manner that interferes w/ rights of Aboriginal peoples of Canada
including rights set out in Royal Proclamation of 1763
o Little jurisprudence in what this means in concrete terms
o Where clash b/w assertion of Charter rights and distinct constitution of Aboriginal peoples
 s.26: other rights not affected
o Example: Canadian Bill of Rights contains right to property; still important to Canadian law
 s.27: multiculturalism
o Charter to be interpreted in manner that recognizes and affirms commitment to multiculturalism
 s. 28: sex equality
o separate provision from s. 15; added following strong women’s lobby when notwithstanding clause put
in to Charter which effects s. 15
o little meaningful jurisprudence
 s.29: denominational school rights not affected
o Example: in Ontario, Catholic schools have rights to same level of public funding as public system
generally; conflicts w/ Charter guarantees of religious equality, but not meant to affect denominational
school rights
o One part of Constitution cannot be used to erase another part
o Mandatory retirement of age 75 of Senators 1867 Act; Court will not use later parts of CA to invalidate
earlier Act
 s.30: NWT and Yukon bound (Nunavut?)
 s.31: does not extend governments’ powers
o compromises autonomy of governments
o one of the main reasons Quebec refused to sign, worried about province’s jurisdiction over education,
as Charter limits scope of power in some ways and compels its exercise in other ways
Interpretive Principles
•
Must be generous, “large and liberal” (Hunter v. Southam 1984; Big M 1985)
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•
•
draw upon “living tree” argument to say Charter must be interpreted in a dynamic and generous fashion
Must be “purposive”: i.e., a Charter right or freedom should be interpreted “in the light of the interests it was
meant to protect” (in Hunter and Big M)
 Purpose of Charter right or freedom to be located in: (R. v. Big M Drug Mart Ltd)
1. character and larger objects of Charter;
2. language used in the text to describe right or freedom ;
3. historical origins of the concepts enshrined;
4. meaning and purpose of associated rights (Big M)
Sources of Interpretation
1. Drafting History
 Relevant, but generally speaking accorded little weight
 Motor Ref: drafters wanted to limit judicial review to procedural protections
2. Canadian Bill of Rights Jurisprudence
 Relevant, but generally accorded little weight b/c it is an ordinary statute that did not give a clear mandate
to judiciary to strike down laws of demo branches of government, (embarrassingly narrow historical
interpretation of equality clauses)
3. Statutory Human Rights Jurisprudence
 Important source, especially pertinent regarding equality rights in s. 15 (large body)
 anti-discrimination laws, but differ in provinces;
4. Foreign law (i.e. comparative constitutional jurisprudence)
 “relevant and persuasive” (Reference re Public Service Employee Relations Act 87), but sporadic and
underdeveloped
 dangerous to rely on American jurisprudence because different historical context and structure to American
Bill of Rights and Charter (US: obscenity not free speech), Brit jurisprudence not a strong source b/c
undeveloped re protecting rts
5. International jurisprudence
 Charter should be interpreted in a manner consistent w/ Canada’s international commitments; may be given
significant weight, but ct picks and chooses
 Example: Keegstra, Ct emphasized international treaties ratified by Canada that commits us to eradicating
hate speech; Conventions against Torture (Suresh)
6. Charter case law –
 most important source of interpretation; addresses most major Charter issues
Aids to Interpretation
1. Interpretative provisions (s. above)
2. Drafting history (parliamentary and committee debates)
3. Canadian pre-Charter jurisprudence
4. International Sources
The Oakes Test
Framework of the Charter
Charter adjudication is two-step: 1) interpretation of rights, 2) justification of limits
- If Charter breach is claimed, burden of proof on party claiming breach. If breach found, onus shifts to Crown to
justify breach under s.1.
Hunter: Charter is to be interpreted purposively, large and liberally.
- It is important that Charter rights be properly delineated with reference to their purpose. An overly broad
definition of a right, insensitive to the purpose of that right, would simply result in the dilution of the Oakes test (and
specious legislation). However, limitations to rights not mandated by their purpose would unjustly narrow the
protections guaranteed by the Charter.
- Generous rather than legalistic. Also however, Charter not enacted in a vacuum, and must therefore be
put in its proper linguistic, philosophic, and historic contexts in order to limit its guarantees.
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Big M: Purpose of Charter rightis to be sought by reference to 1) character and larger objects of the Charter, 2)
language of the specific right, 3) historical origin of concept enshrined, 4) meaning and purpose of other surrounding
rights.
Therens: s.1 conduces to a "broad and purposive" approach to interpretation. Any activity that advances a right's
purpose falls within its scope.
Oakes: s.1 justifies a violation where
1) pressing and substantial objective
- although only time they ever rejected one was Big M. 3 rules: can't be incompatible with the
values of the charter; can't be ultra vires; no shifting purpose.
- Much turns on how, and at what level of generality, the purpose is characterized. A high level of
generality would almost always pass pressing and substantial, low level be less obvious. But if you go low level, it
will be easier to pass rational connection and minimal impairment. It may, however, then be less easy to pass
proportionate effects. However the proper characterization of the objective should not be so strategic as to verge on
sophistic manipulation, and I think that in general the proper way to characterize an objective of an act was
described by Beetz in Anti-Inflation Ref in context of div powers: "One must look at its operation, at its effects and
at the scale of its effects rather than at its ultimate purpose where the purpose is practically all-embracing." If the
purpose was characterized so broadly as "to ensure that Canada has an effective system of laws," then of course it is
important, etc. It is best to try to be as analytically honest as possible and characterize the law at a somewhat low
level of generality which, however, is sensitive to the larger purpose of the act as a component of Canada's general
system of law.
2) Proportionality test:
i) rational connection
- "carefully tailored" not "arbitrary, unfair, or based on irrational considerations"
- Oakes failed. small possession -/ trafficking.
ii) minimal impairment
- must be somewhat relaxed to incorporate federalism values.
- Dickson inserted "as much as is reasonably possible" Edwards
iii) proportionate effects (Dickson in Oakes: "The more severe the deleterious effects of a
measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a
free and democratic society") - Is this arm redundant as Hogg argues? (How can a law have an objective pressing
and substantial enough to override a Charter right, be rationally connected and minimally impairing, and yet have
disproportionate effects?)
- importance of objective vs. negative effects on claimant
- impact of the rights infringement vs. likely benefits of the impugned law
Dagenis: Refines 2.iii, proportionality between actual infringement of rights and actual salutary effects resulting.
- Note on 2.iii, from Thomson Newspapers (1998): "The third stage of the proportionality analysis performs a
fundamentally distinct role. ... The focus of the first and second steps of the proportionality analysis is not the
relationship between the measures and the Charter right in question, but rather the relationship between the ends of
the legislation and the means employed. Although the minimal impairment stage of the proportionality test
necessarily takes into account the extent to which a Charter value is infringed, the ultimate standard is whether the
Charter right is impaired as little as possible given the validity of the legislative purpose. The third stage of the
proportionality analysis provides an opportunity to assess, in light of the practical and contextual details
which are elucidated in the first and second stages, whether the benefits which accrue from the limitation are
proportional to its deleterious effects as measured by the values underlying the Charter."
-Note on minimal impairment, usually where gov't fails.
- What are the justifications that can successfully limit values under s.1? According to the language of s.1, the
values that justify limitations on rights are those of a "free and democratic society." Since the guaranteed rights are
themselves derived from the values of a free and democratic society, there is an "identity of values" underlying
rights and their limits. As examples, Dickson suggested 'respect for the inherent dignity of the human person,
commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and
group identity, and faith in social and political institutions which enhance the participation of individuals and groups
in society." Arguably, however, the reference to a free and democratic society is too vague to generate predictable
38
results as to when limits will be justified. The court has accepted a wide variety of legislative objectives as
justifications under s.1.
- In Oakes, Dickson paid close attention to the language of s.1 and found that not only did it limit rights, it also
expressly guaranteed them. Moreover, the requirement that the limit be "demonstrably" justified signalled to
Dickson the primacy of the guarantee of rights. These considerations led him to stipulate strict rules as to the onus
of proof (on the government) and the standard of proof for justification.
"Prescribed by law." Must be legally authorized. If not, can never be justified under s.1. Reflects two values basic
to constitutionalism and the rule of law. (1) in order to preclude arbitrary and discriminatory action by gov't
officials, all official action in derogation of rights must be authorized by law; (2) citizens must have a reasonable
opportunity to know what is prohibited so they can act accordingly. These are satisfied by 2 requirements (1) law
must be adequately accessible to the public; (2) 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. Statute, regulation, CL qualifies;
directives or guidelines which although issued by gov't dept's or agencies, fall outsid ethe class of officially
published delegated legislation, will probably not qualify (Re Ont Film and Video Appreciation Society). As for
precision, limit on right need not be express, but can result by necessity from the terms of the statute. For ex.,
statutory req. that a roadside test be administered "forthwith" a limitation on the right to counsel "prescribed by law"
even though the right to counsel was not mentioned in the statute.







Freedom of Expression Summary
SECTION 2(b)
protects freedom of thought, belief, opinion and expression, and freedom of the press
expression is any non-violent activity that conveys a meaning
o includes: threats of violence and hate propaganda/psych violence (Keegstra)
o exception: only actual physical violence is left out (Keegstra)
protection afforded by s.2(b) is content-neutral; all communicative activity is protected provided it is not
violent (defining feature)
the “real debate” in most s.2(b) challenges to laws takes place in the s.1 proportionality analysis
corporations can bring challenges on basis of 2b violation
labour picketing, communicating for purposes of prostitution, commercial advertising and language choice
are all forms of expression protected by s. 2(b)
Note: Debate whether media organizations have a distinct set of rights, and beginning to develop idea that
they do, for example search and seizure on media organization is arguably a more serious infringement than
elsewhere; no focus on freedom of the press in this course
Purposes of s.2(b) (Keegstra)
 Democratic discourse (political expression)
 Pursuit of truth (expression about ideas)
 Self-realization/self-fulfilment (artistic expression)
Keegstra: McLachlin gives spectrum of justifications for protecting freedom of expression. (cb 649-652)
1. Political process rationale. Freedom of expression is instrumental in promoting the free flow of ideas
essential to political democracy and the functioning of democratic institutions. This rationale justifies only
a relatively narrow sector of free expression, one much narrower than the wording of s. 2(b) would suggest.
2. It is an essential precondition of the search for truth. Expression is a means of promoting a marketplace of
ideas and hence a more relevant, vibrant, and progressive society. Even though freedom of expression
provides no guarantee that the truth will always prevail, it assists in promoting the truth in ways which
would be impossible without the freedom. The US idea of a marketplace of ideas. Of course, there is no
guarantee that free expression will lead to truth.
3. Free expression is also an end in itself. It is a value essential to society we wish to preserve. Although this
justification is arguably too broad and amorphous to found a constitutional principle, it nevertheless
provides a useful supplement to the more utilitarian rationales.
39
The broad wording of s. 2(b) of the Charter is arguably inconsistent with a justification based on a single facet
of free expression. However, each of the above rationales is capable of providing guidance as to the scope and
content of s. 2(b).
It can also be argued that freedom of expression promotes social stability. Encourages people to fight for their
POV through words not violence. Of course, words have led to revolutions.
Means of Restricting Expression
•
•
•
•
•
•
•
•
criminal offences (e.g. libel, sedition, treason, hate propaganda, obscenity, child pornography)
prior restraint or administrative censorship (e.g. Ontario film review board, Customs’ prohibitions of
imported publications)
regulatory offences (e.g., re professional advertising, election advertising, bilingual labelling etc.)
court and tribunal rulings in civil actions (e.g., damages for defamation, injunctions against picketing)
policies or rules restricting expression on public property or in public media (e.g., restrictions on access to
government property)
licensing of broadcasters
time, place and manner laws (e.g. noise by-laws; licensing of or other restrictions on parades,
demonstrations or pickets)
compelled expression (e.g. consumer labelling requirements, letters of recommendation)
Establishing a violation of s.2(b) (Irwin Toy 1989 SCC):
1. Is there a violation of s. 2b of the Charter? Burden on claimant for 1-3
1. Does the activity at issue convey a meaning in a non-violent form? If so,
2b protects any activity that “conveys or attempts to convey meaning” ex. illegal parking as a protest;
Keegstra – threats of violence do not fall w/in exception
2. Is the purpose of the impugned government action to control expression by reference to its content?
if so, violation established; if not,
3. Does the impugned government action have the effect of restricting expression related to one of the
values underlying the guarantee (truth, democracy or self-realization)? If so, violation made out
2. Can the violation be justified under s. 1? Remember, govt has burden on BOP.
 the Oakes test is applied “flexibly” (unpredictably?) in s.2(b) cases
s.2(b) provides content-neutral protection to all non-violent expression but s.1 “contextual
analysis” is content-specific (tension)
 “not all expression is equally worthy of constitutional protection”
 some restrictions on expression are subject to a “searching degree of scrutiny” (evidence of harm required)
; other restrictions are more easily justified (on the basis of common sense, reason or logic)
 In considering whether to adopt a “searching” or “attenuated” level of scrutiny, the courts consider a
number of factors:
1. whether the expression at issue is closely related to the purposes of s.2(b)
 “peripheral” kind of expression (hate prop, child porn, commercial, sex explicit) more likely to take
deferential approach and find limits easier to justify vs. “core”
2. the socioeconomic position of those negatively and positively affected by the law;
3. whether the group “protected” by a law is truly “vulnerable” to manipulation, discrimination or violence
 children, yes: Irwin Toy; Sharpe
 racial minorities, yes: Keegstra;
 smokers, yes: RJR MacDonald;
 women, yes: Butler;
 voters, no: Thomson Newspapers 1998 SCC (768);
 consumers, no: Kmart 1999 SCC (904); Pepsi-Cola 2002 SCC (905)
4. whether the restricted form or content of expression is particularly important to a vulnerable or disadvantaged
group (e.g. postering: Ramsden; consumer leafleting: KMart; sexual expression: Little Sisters; but see Banks Ont CA
2007)
Minimal impairment:
 Courts should apply stricter minimal impairment where state is singular antagonist and should apply a
40
looser, and more deferential minimal impairment test in cases where legislature is (1) balacing competing
rights, (2) protecting a socially vulnerable group, or (3) to address conflicting social science evidence as to
cause of social problem (as long as govt has a reasonable basis) (Irwin)
 need some evidentiary basis, but not overly strict standard
 alternatives: if there are a number of courses available, “govt may legitimately employ a more restrictive
measure… if that measure is not redundant, furthering the objectives in ways that alternative responses
could not, and is in all other respects proportionate to a valid s. 1 aim…” (Keegstra)
THE SCOPE AND LIMITS AND FREEDOM OF EXPRESSION
Picketing and 2b
•
•
•
is an activity that conveys a meaning: Dolphin Delivery SCC 1986 (901)
Pepsi-Cola: even when picketing is secondary, it should be considered pf valid, unless it can be
demonstrated that there is a harm resulting from the picketing that would be a tort or a crime, in which case it can
be restricted pursuant to s.1
Not as strong as it sounds b/c one tort at play could be inducing breach of contract (according to court in
Pepsi Cola)
(1)
Retail, Wholesale and Department Store Union v. Dolphin Delivery Ltd (1986)
Facts: Union members were striking against their employer. They wanted to secondary-picket Dolphin b/c Dolphin
was related to their employer and carried out business for him. BC legislation permits this.
Issue: Is picketing protected by 2b? If so, is restriction justified in this case under s. 1?
Ratio: Picketing is a form of expression protected by 2b, but it can be restricted in certain cases (incl. here) under s.
1 because it would cause (unnecessary) harm to the picketed business and to the larger community (but note that
there was no evidence of intimidation/obstruction of Dolphin delivery employees).
BCGEU v. BC (AG) (1988)
SCC followed Dolphin and upheld a restriction on labour picketing by court workers under s. 1 b/c access to courts
pressing/substantial concern, sufficient to restrict 2b right.
UFCW, Local 1518 v. Kmart Canada Ltd (1999)
SCC distinguishes b/w consumer leafleting and labour picketing and held that ban on secondary picketing in BC
Labour Relations Code, which encompassed leafleting, violated 2b and not justified under s. 1.
RWDSU, Local 558 v. Pepsi-Cola Canada Beverages Ltd. (2002)
SCC re-interpreted the common law rules concerning secondary picketing in light of Charter values and held
“secondary picketing is generally lawful [under the common law] unless it involves tortious or criminal conduct”.
Dolphin should not be read as saying secondary picketing is “illegal per se” under common law.
Ct indicated it would be very reluctant to strike down a legislative ban on secondary picketing.
Commercial Expression/Advertising and 2b
•
•
protected by s.2(b) because it conveys a meaning, and on the theory that it contributes to consumer
autonomy and to the self-realization of buyers and sellers:
•
•
Ford SCC 1988 (906-7) ct concluded commercial expression is protected under 2b for reasons above;
Irwin Toy SCC 1989 (907) – corporations can claim violations under 2b
consumer autonomy requires extensive regulation of, for example, misleading or manipulative advertising
practices (these must be upheld under s.1)
Ford v. Quebec (AG) (1988) (SCC) (cb 662)
Facts: Challenge to Quebec legislation that requires outdoor commercial signs to be exclusively in French.
Decision: Legislation violates s. 2b and cannot be upheld under s. 1. First case to recognized commercial
expression!
 2b: Commercial expression is related to freedom of expression b/c it fosters consumer autonomy, so wrong to
leave commercial expression entirely out of scope of guarantee; 2b covers commercial signs
41
o
court rejected distinction b/w message and the medium as it found that language is so intimately
related to form and content of expression there cannot be true freedom of expression by means of
language is one is prohibited from using the language of one’s choice
o focus of court’s discussion defending the constitutionalization of commercial speech is on the
audience, whose autonomy is protected and encouraged primarily, but also that commercial expression
is related to self-realization of sellers and buyers
 s. 1: Promoting status of French language is a pressing/substantial objective but complete ban not reasonable
and did not minimally impair freedom of expression
o while province justified in requiring use of French, not justified in prohibiting use of other languages
Ratio: Commercial expression falls w/in scope of 2b guarantee as it has intrinsic value as expression and protects
listeners by allowing individuals to make informed economic choices, an important aspect of commercial
expression.
Notes: New law requires use of French and it being predominant, but allows other languages.
Irwin Toy Ltd. v. Quebec (AG) (1989) (SCC) (cb 663)
Facts: Provisions of Quebec’s Consumer Protection Act prohibiting advertising “directed at persons under 13 years
of age”, giving an offence provision if violated. Irwin broadcast message that govt claimed was in contravention of
the Act.
Decision: Majority held that Irwin Toy’s speech is protected under 2b, the government action in question was
intended to limit that freedom, but limitation justified under s.1.
Irwin TEST FOR 2b Claims:
Does the provision violate s. 2b Charter? (Onus on claimant for i-iii)
i. Is activity one that conveys a meaning in a non-violent way (is it within the sphere of s. 2b?)?
2b protects any activity that “conveys or attempts to convey meaning” ex. illegal parking as a protest;
Keegstra – threats of violence do not fall w/in exception
ii. Is the government’s purpose to suppress expressive activity?
Claimant’s burden is minimal
If yes, violates 2b
If not, ask:
iii. Does the government’s action have the effect of restricting expression related to one of the values
underlying the guarantee (truth, democracy or self-realization)? If so, violates 2b. If not, out of
luck.
b) Can the provision be upheld pursuant to s.1? Government has BOP.
1. Prescribed by law 2. Pressing and Substantial Objective 3. Proportionality (measures rationally
connected to the objective; minimal impairment; proportionality b/w effects of measures and
objective);
courts should apply stricter minimal impairment where state is singular antagonist and should apply a
looser, and more deferential minimal impairment test in cases where legislature is balacing competing
rights, protecting a socially vulnerable group, or to address conflicting social science evidence as to cause
of social problem (as long as govt has a reasonable basis); need some evidentiary basis, but not overly strict
standard
Application:
a) Provision violates 2b
i. Activity is expressive.
ii. Government purpose is to restrict expression according to its content – advertising aimed at children
under 13.
b) Provision can be upheld pursuant to s.1
1. Meets “prescribed by law” requirement; not too vague
2. Pressing and substantial objective met
3. Meets rational connection, minimal impairment, proportionality b/w effects)
 Court concludes commercial expression is related to purposes underlying the guarantee of freedom of
expression by promoting consumer autonomy and self-realization
 Majority: Purpose is to prevent children from being targeted by manipulative advertising
 Evidence: social science evidence that children do not have the ability to distinguish fantasy and reality;
vulnerable to manipulation – evidence for children 3-6
 Key issue: minimal impairment: government’s key evidence related to children under 7, but ban was on
42
children under 13; important move made by court is saying that sometimes government does not need
evidence and it is enough to rely on common sense/logic/reason; although less intrusive options available to
government, legislature’s chosen method reasonable and founded on solid evidentiary basis (there has to be
some sort of evidentiary basis for means chosen, but court will not hold legislatures to overly strict standard)
 Need for deference under section 1 stems from social justice concerns (Charter must not be used as a tool to roll
back legislative measures protecting vulnerable groups) and general institution concerns (courts ought not
second-guess legislative decisions on social policy).
 When the government’s purpose related to maintaining the authority and impartiality of the justice system, the
courts can asses with some certainty whether the “least drastic means” have been chosen. So, in criminal law
the courts can defer to the defendant (the rights holder).
 Also said that they will be cautious of vulnerable consumers and that a great deal of commercial speech is not
devoted to purposes underlying, so commercial expression is at a distance from the core values protected by 2b,
therefore it can be relatively easily restricted pursuant to s.1 so long as the government has made some effort to
tailor its restrictions on commercial expression so as to promote consumer autonomy and there is some rational
basis for supporting the nature of the restriction, but not a high standard
(1) Dissent (McIntyre + Beetz) (cb 672): The impugned provisions infringe 2(b), and cannot be justified under s.1.
No pressing/substantial objective and no rational connection.
(2) Even if children suffer harm from advertising directed at them (which he doesn’t accept), the restriction fails on
proportionality as total prohibition and arbitrarily fixed age.
(3) Freedom of expression, whether political, religious, artistic or commercial, should not be suppressed except in
cases where urgent and compelling reasons exist and then only to the extent and for the time necessary for the
protection of the community. The impugned sections therefore cannot be saved by s. 1.
(4) Notes:
1. is it possible that there will be expressive activity that will not be able to be justified by the three core values
of free speech? Generally it will not be very difficult for a given expression to fall within one of the three core
values.
2. the big picture – an expansive s.2(b), and more pressure on a flexible s.1 test to compensate for that. Some
might argue that 2(b) is too expansive and unprincipled. It should become more principled, therefore freeing
us from having to contort s.1, and freeing us from having to constitutionally protect offensive speech even if
the limitation is justified.
3. do we want commercial speech to be protected? If not, how do we distinguish between commercial and noncommercial speech? (California Raisins, Bennetton ads, advertising access to abortion)
(1)
(2) Ryder: poses real danger for freedom of expression, though may be reasonable when it comes to commercial
expression; slippery slope; minimal impairment becomes a reasonableness test,
Rocket v. Royal College of Dental Surgeons (SCC) (1990) (cb 675)
Facts: Challenge to a regulation enacted under Ontario Health Disciplines Act by the College of Dental Surgeons
imposing stringent restrictions on advertising by dentists.
Decision: Unanimously held that regulation violates 2b and cannot be upheld under s. 1 b/c failed proportionality
test b/c precluded advertising info such as hours of operation and language spoken, that would be useful to public
and not mislead or undermine professionalism.
Ratio: Although commercial expression has been included w/in scope of 2b, the commercial nature of the expression
is significant in the balancing exercise under s. 1. Where motive behind expression primarily pursuit of profit rather
than participation in political process or spiritual or artistic self-fulfillment, restriction on expression of this kind
might be easier to justify than other infringements of 2b. But judgment also recognized that public interests served
by such expression in enhancing ability of consumers to make informed choices.
Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (1990) (SCC) (cb 675)
Decision: Soliciting for the purposes of prostitution (another form of commercial expression) was found to be
protected by s. 2b. But majority held that CC provision prohibiting any communication in a public place for purpose
of engaging in prostitution could be upheld under s. 1 as proportionate response to nuisance created by street
solicitation.
Dickson CJC “It can hardly be said that communications regarding an economic transaction of sex for money lie at,
or even near, the core of the guarantee of freedom of expression”.
43
RJR-MacDonald Inc. v. Canada (AG) (SCC) (1995) (cb 676)
SCC’s most significant decision on commercial expression.
Facts: Challenge to provisions of the federal Tobacco Products Control Act prohibiting the advertising and
promotion of tobacco products and required manufacturers to add to packages an unattributed warning about the
dangers of smoking.
Decision: 5-4 majority strikes down most of the offences in the Act, including complete ban on tobacco advertising,
and requirement of unattributed health warning on packages.
Reasons:
[1. Division of Power: valid under feds crim power b/c PPP, goal is to protect health].
2. Charter Analysis
a) violates 2b, expressive activity and purpose (and effect) of statute is to restrict expression by reference to its
content; b/c purpose is to suppress expression RJR need not show advertising connected to values underlying the
Charter.
b) not upheld under s.1
i. pressing and substantial objective: Objective of advertising ban is to prevent Canadians from being persuaded
by advertising and promotion to use tobacco products. Objective of mandatory package warning is to
discourage ppl who see it from tobacco use. Limited objective is of “sufficient importance” despite fact that it
is less significant than broad objective of protecting Canadians generally from the risks associated w/ tobacco
use.
ii. Rational connection: although connection b/w advertising and tobacco use cannot be scientifically proven,
“reason and logic” are sufficient to establish rational connection.
iii. proportionality: majority found complete ban on advertising failed minimal impairment test (not the least
restrictive means)
1. government had presented no evidence to demonstrate need for a complete ban, as opposed to a partial
ban that permitted information and brand preference advertising (and refused to present evidence of
studies it conducted and alternatives it considered when drafting legislation, leading to suspicion they
don’t support government’s case) (per McLachlin 933; Iacobucci 935-6)
 agree with dissent that deference is owed, but emphasize that does not take away government’s
burden; may be reasonable to assume companies wouldn’t spend millions on advertising if it did
not increase consumption, but that does not explain a complete ban and why legislation could not
draw a line (partial ban – lifestyle ads)
2. unattributed mandatory health warnings also failed the minimum impairment test: they would be
clearly justifiable reasonable limits on freedom of expression so long as they could be attributed to
government (violation of freedom of expression to compel certain kinds of speech; govt did not
adequately demonstrate why health warning could not be attributed)
Ratio: Deference may be owed, but government must produce evidence; government must show an attempt to tailor
the legislation to meet minimal impairment.
Dissent (LaForest): Ad ban’s violation of 2b justified under s.1. Unattributed warnings not violation b/c everyone
knows from govt; even if violate 2b, upheld under s.1 b/c of context – corporation selling tobacco, commercial
expression for profit – demands lower degree of Charter scrutiny.
 extremely deferential approach; despite lack of evidence should defer to government and uphold prohibition on
basis of logic; disdain for profit-motivated expression
 Oakes test should be applied w/ different level of strictness depending on the context, here it should be a
deferential test
 Real difference is that majority thinks that although commercial expression may not be as valuable as other
forms, it should not be lightly dismissed and that motivation for profit is irrelevant in s.1 analysis; plus differ on
how much evidence required for govt to justify least restrictive means, even in contexts where deference is due
Notes: New Tobacco Act enacted in 1997 responds to these concerns of the majority (includes exceptions for
informational/brand preference ads and allows attributed health warnings); Tobacco companies challenged the new
legislation in Feb. 2007, but it will likely be upheld under s.1.
Montreal (City) (2005) (SCC)
Facts: Strip club operators were charged with Montreal By-law concerning noise after they set up loudspeakers at
their entrance pumping music into the street. Claim by-law infringes 2b.
Decision: By-law is upheld by 6-1 majority, with McLachlin and Deschamps writing together. 2b infringed, but
saved under s. 1.
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S. 2(b): Court rejects arg. that s. 2b protects you on all public property, saying that s. 2b will have internal limits for
some government property used privately (para. 61-64). Proposes test for whether expression on government owned
property falls under 2b: it does if the place is a public place where one would expect constitutional protection for
free expression. To determine if a place falls into this category, consider 2 factors: (a) historical or actual function of
the place, and (b) whether other aspects suggest that expression within that place would undermine the values
underlying free expression (para. 71-74). Court finds that streets are clearly areas of public concourse where
expression of many varieties has long been accepted (para. 81), so no internal 2b limit here.
S. 1: Combating noise pollution pressing and substantial obj. Prohibition rationally connected, article 20 of by-laws
allowed City to authorize use of sound equipment falling afoul of by-law, so right was minimally impaired, and
beneficial effects of by-law outweighed the prejudicial. (cb 91)
Dissent (Binnie): 2b infringed, limits not "prescribed by law," and not minimally impairing (because didn't regard
sound eq. potential for disturbance) - critical of majority for curing overbreadth by too many readings "up, in, down,
and out." (cb 91-92)
R. v. Banks (Ont. CA) (2007) (supp. 93)
Facts: Challenge to validity of provisions of Safe Streets Act, which prohibits soliciting on roadways.
Decision: The Act violates s. 2(b) but is upheld under s. 1. Court holds that public roadways are a location where
freedom of expression can be invoked, and although it conflicts with the purpose of a traffic lane, does not conflict
with any of 3 underlying 2(b) purposes. Upheld under s. 1 because "the objective of regulating the interaction of
pedestrians and vehicles on the roadways was important enough to warrant overriding the s. 2(b) right."
Hate Propaganda





Number of ways in which the law restricts the publication of hate speech targeted at minorities:
validity of s.319(2) of the Criminal Code: R. v. Keegstra 1990 SCC (941)
o Zundel case: charged w/ propogating hate under ‘spreading false news’ provision of CC, struck down
as unconstitutional
validity of s.13(1) of the Canadian Human Rights Act: R. v. Taylor 1990 SCC (959)
o can only deal w/ media that fall within federal jurisdiction b/c federal act: broadcasting,
telecommunications, internet; prohibitions upheld in Taylor (dissemination of racist messages by
telephone)
o Saskatchewan’s HRC contains prohibition on hate speech
validity of prohibitions on discriminatory speech: Ross 1996 SCC (961)
o Anti-discrimination statutes generally prohibit certain kinds of discriminatory speech
o OHRC prohibits posting signs that announce an intention to discriminate (could easily be upheld if
challenged)
o Prohibitions on discrimination in HR statutes (in employment, housing etc) can sometimes have an
impact on expressive activity and therefore infringe on s. 2b, Ross most well known of such cases
On one hand, could say hate propaganda is not a legitimate form of speech, on the other hand it is virtually
impossible to formulate a prohibition so precise that it nails targeted hate propaganda w/o running risk of
catching legitimate free speech
Ross v. New Brunswick School District (1996) (Tribunal, then SCC)
Facts: Ross well-known anti-Semitic propagandist and also teacher; parents of children in class initiate HR
complaint showing evidence that students insecure in school enviro, although Ross’s AS activities were all outside
the classroom (unlike Keegstra).
Tribunal: on basis of evidence that public AS activities had harmful effects on students that amounted to creating a
discriminatory barrier to equal access to education, they found that Ross be removed from teaching position and
shifted to admin position and an order that he refrain from further public AS activities as a condition of retaining
employment w/ school board.
Issue: Whether tribunal’s orders are a reasonable limit of 2b under s.1
Decision: Order removing Ross from classroom justified under s. 1, but permanent speech ban not justified under s.
1. Decision emphasizes educational context, teachers are role models; but that permanent speech ban not justifiable
b/c if no longer teaching, no reason to think his writings would poison class atmosphere. (although could be charged
on basis of CC).
45
Note: Where there is a collision b/w expressive freedom and equality rights, the trend of the SCC is to hold that
equality rights prevail.
R. v. Keegstra (1990) (SCC) (cb 697)
Facts: K a school teacher in Alberta, charged under s.319(2) of CC with unlawfully promoting hatred against an
identifiable group by communicating anti-Semitic statements to his students.
Issue: Can s.319(2) be upheld as a reasonable limit on freedom of expression?
Decision: Upheld by 4-3 majority (same division in Taylor case). Whole court concludes that the section violates 2b,
focus is on section 1.
Majority (Dickson + 3):
Section 2b:
 2b protection: content-neutral, as long as claimant can establish the activity conveyed a meaning to others in a
non-violent form and that government purpose in passing law is to restrict expression by reference to its content
or that it has the effect of restricting expression that is related to values underlying guarantee
o Keegstra need not show activity related to those pursuits, all he has to show is that his activity
conveyed a meaning in a non-violent form as Parliament’s purpose in 319 is to restrict expression
w/ reference to its content
 Court rejected the argument that hate propaganda is a form of psychological violence and should be analogized
as physical violence (presumably violence prohibited b/c as a form of expression it is not conducive to real
communication in mutual way) affirming that 2b’s protection is content neutra
Section 1:
 Prescribed by law: S. 319(2) provides a basis for intelligible legal debate
 Pressing and Substantial Objective:
o Preventing harms associated w/ hate propaganda (psychological harm done to members of the
target group, and influence upon society at large) (cb 701-702)
o Draws on report by Parliament, s. 15 equality, s. 27 multiculturalism and int’l treaties ratified by
Canada (incl. Convention on civil and political rts which commits states to eradicating hate
speech) to underlie importance of objectives (cb 702-703)
 Proportionality Analysis: hate speech is far from three core values underlying, and this must be factored into s.
1 test. (cb 704)
o Rational connection met – safe assumption that prohibiting hate speech will help suppress it and
therefore help prevent harm it causes (vs. McLachlin)
o Minimal impairment met – offence is narrowly prescribed, hatred difficult to define – leaves out
private communications, and under 313(3) truth defence (with reverse onus, also upheld), good
faith expression of view on religious subject is exempted, if person reasonably thought statements
were true exempted or person making statements intended to demonstrate that the belief/statement
is out there and want to critique it also have a defence; prosecutions cannot be brought w/o
consent of AG (weeds out trivial applications of provision)
 Alternatives: If there are a number of courses available, ‘govt may legitimately employ a
more restrictive measure … if that measure is not redundant, furthering the objective in
ways that alternative responses could not, and is in all other respects proportionate to a
valid s. 1 aim…” (cb 709)
 Many objections of overbreadth from incidents which indicate law catches legitimate free
speech, but Dickson says overbreadth a result of law’s overzealous enforcement, not law
itself. (cb 708)
o Proportionality met: acknowledges that there may be that there are negative effects in terms of
giving public forum to hate mongers but says importance of message of condemnation needs to be
reproduced in criminal law and that countermands the negative effects.
Dissent (McLachlin + 2)(cb 709): (on s. 1)
 Objective: Protecting social harmony and individual dignity is a substantial goal.
 Rational Connection: Expresses doubt about whether a criminal prohibition is a rational way of pursuing the
objective; may in fact give forum to hate mongers (cb 711)
 Minimal impairment and proportional effects: government has not succeeded in meeting its burden here, certain
to have ‘chilling’ effects on political expression and positive effects are uncertain or questionable.
 One of the main arguments made by critics of hate propaganda offence, echoed by McLachlin is that offence
46

may be counter-productive in that it gives a platform to racists to propound their views (Zundel etc attain
notoriety, martyr like status that give them a new following/media attention that he wouldn’t otherwise have),
better to ignore hate mongers from criminal law point of view and combat their ideas through education,
addressing root causes of discrimination.
McLachlin is more concerned that existence of offence will have chilling effect on freedom of expression
o Examples of problems w/ provision: arrest of individuals distributing pamphlets admonishing
Americans to leave the country
Debate b/w value of equality, protection of vulnerable groups vs. chilling effects of restrictions on freedom of
expression (see cb 695-697)
Taylor v. Canadian Human Rights Commission (SCC) (1990) (cb 715)
Facts: Taylor and Western Guard Party instituted a telephone message service w/ prerecorded messages on theme of
Jewish conspiracy to control Canadian society. Complaint under s.13(1) of Canadian HR Act brought. Tribunal
issues cease and desist order. Messages continued; Taylor challenged s.13(1) of the Canadian HR Act, which
provides that is a discriminatory practice for a person to use the telephone to repeatedly communicate messages
“likely to expose person to hatred/contempt by reason of fact that persons are identifiable on basis of a prohibited
ground of discrimination” under 2b.
Decision: Majority (same majority that upheld hate promotion ban in Keegstra) concluded that the legislation
constituted a reasonable limit on 2b.
Absence of intent requirement not a problem since purpose of HR codes is to prevent discriminatory effects rather
than to stigmatize and punish those who discriminate.
Dissent: Despite the fact that impugned provision was in a HR code rather than CC, McLachlin would have struck
down the law. Troubled by absence of intent/forseeability requirement and truth defence, and inclusion of private
telephone conversations.
Notes:
 HR codes prohibit racial and other forms of discrimination in the provision of employment,
accommodation and other services available to the public; prohibition has been interpreted as covering acts
that create a “negative environment” that adversely affects a person’s ability to access and enjoy a
particular service (Ross)
 Unlike s. 319, s. 13 of Canadian HR Act is a federal, civil statute, not valid pursuant to criminal law power,
so must be confined to activities that fall within federal jurisdiction (telecommunications, broadcasting,
internet)
Ross v. NB School District No. 15 (1996) (SCC) (cb 717)
Facts: Ross, a teacher, expressed anti-Semitic views outside the classroom. NB HRT ordered him to be given nonteaching job at the school board and made him stop publishing materials as a condition of continued employment.
Ross challenged the order under s. 2b.
Decision: The order expelling Ross from classroom upheld by unanimous court. La Forest writes "[Children] are
unlikely to distinguish between falsehoods and truth and more likely to accept derogatory views espoused by a
teacher." However, the permanent speech ban is struck down, as once Ross no longer in a teaching position, no
reason to think his writings could poison a classroom atmosphere. (cb 718)
Sexually Explicit Expression
R. v. Butler (1992, SCC) (968)
Facts: B operated store that sold and rented hard core pornography in the form of videotapes, magazines and sexual
paraphernalia. S. 163 of Criminal Code defined obscene material as “any publication a dominant characteristic of
which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime,
horror, cruelty, and violence.” B was charged with numerous offences contrary to the obscenity provisions of s. 163
of the Code.
Issue: Whether the definition of obscenity in s.163(8) is an infringement of 2b, and if so, can it be justified by s. 1?
Decision: Definition of obscenity infringes on 2b, but can be upheld pursuant to s.1.
 Crown: s.163 justifiable under s.1 as designed to protect women from harm caused by dehumanizing and
stereotypical images of them presented by porn
 Butler: cannot be justified under s.1 b/c definition of obscenity was overly broad
47
Reasons (Sopinka):
 original purpose of s.163 was to safeguard public morals by banning material that failed the community
standards of tolerance test
 Community standards as to what is harmful, however, have changed since 1959. We are now concerned
with harm to people and harm to society’s fabric as a whole.
 Material that is degrading or dehumanizing fails the community standards test because it is perceived by
public opinion to be harmful to society, particularly to women. This is why 163 should not limit sex but
rather undue exploitation of sex. Pornography can be divided into three categories:
(1) explicit sex with violence
 almost always constitutes undue exploitation of sex
(2) explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing
 may constitute undue exploitation of sex if risk of harm is substantial by community standards test
(3) explicit sex without violence that is neither degrading nor dehumanizing.
 generally tolerated; won’t qualify as undue unless it employs children in its production; this
category has been contentious post-Butler
 Internal necessities test: If a work does contain material that by itself would constitute the undue
exploitation of sex, it can still be justified if this portrayal of sex is essential to a wider artistic or literary
purpose.
(1) Rights analysis:
(2) The subject matter of pornographic material does convey or attempt to convey meaning and s. 163(8) of the
Code therefore does infringe s. 2(b) of the Charter.
(3) Section 163(8) can be saved by s. 1:
(i) It is prescribed by law (despite vagueness of definition and difficulty of deciding parameters)
(ii) Pressing and Substantial Objective: controversial – shifting purpose; definition enacted in 1959; Sopinka
holds that while the focus at the time of enactment may have been based on a moral paradigm that sexually
explicit expression is immoral, the purpose now is to prevent harm to society, particularly women and
children; Sopinka finesses this shifting purpose by saying that in 1959 Parliament was concerned w/ harms
from obscenity, even though what we consider the harm to be today is different there can be a permissible
shift in emphasis (so objective is prevention of harm to society, not moral disapprobation, so doesn’t violate
Big M requirement that the objective relied on is the one at the time of enactment) – seems to suggest that as
long as the objective is not transformed in some fundamental way, a shift in emphasis is permissible. The
objective of preventing harm to women is a valid objective which justifies some encroachment of the right to
freedom of expression. Furthermore, the kind of expression which is sought to be advanced (base sexual
activity produced to make money) does not stand on equal footing with other kinds of expression which
directly engage the “core” of freedom of expression values.
 Social science evidence: Sopinka refers to inconclusive social science evidence concerning the link b/w
porn and acts of sexual violence; b/c evidence not clear cut, Sopinka found it necessary to rely on common
sense and defer to Parliament’s reasonable judgment that porn causes harm to women
 (main concern is its influence on adult men and feminist critique of porn as inherently expressing power
dynamic that celebrates victimization of women).
(iii) Proportionality analysis:
a. Rational connection. While a direct link between prohibition on obscenity (as defined here) and the
prevention harm to society may be difficult to establish, it is reasonable to presume that exposure to
images bears a causal relationship to changes in attitudes and beliefs. There is thus a sufficiently rational
connection between the criminal sanction and the prevention of harm to society.
b. Minimal impairment. In seeking to protect a vulnerable group, Parliament need not choose the “perfect”
scheme so long as it chooses a reasonable one. Legislation is not as extensive as it could have been:
Section 163(8) does not target sexually explicit erotica without violence that is not degrading or
dehumanizing, or private expression/possession. Nor does it capture material with scientific, artistic, or
literary merit, as Court has read in an artistic merit defence into the definition of obscenity itself (under
sub(a))
c. Effects balance. Interveners argued that education would be as effective and less intrusive. In some
societies, this may be true (Scandinavian countries have lots of porn).
(1) Note: Isn’t this a shifting purpose, which wasn’t supposed to be allowed (Big M Drug Mart)? Courts says it is
just a nuanced shift.
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

primary legacy of Butler: representations of explicit, adult, consensual sexuality as immoral is not an
attitude that can survive the Charter, and that those representations can circulate freely
Big concern until early 90s, but in ensuing 15 years, obscenity provision has not been actively enforced and
almost disappeared; instead prosecutorial resources have been focused on child pornography, especially
through the internet;
Now, CRTC licensing standards, Film Review Boards etc. play a larger role in restricting obscenity than
CC
jurisprudence has also shifted significantly in Labaye decision of 2005 (SCC)
Labaye (2005, SCC)
Facts: Montreal swingers club; bawdy-house provision of CC defined as place for prostitution or other acts of
indecency.
Decision: Community standards test should be replaced w/ harm based test; must be evidence of (serious) harm
(“the causal link b/w images of sexuality and anti social behaviour cannot be assumed”)
 Ct engaged in a more liberal discussion of harms associated w/ sexual behaviour that the state ought to be
concerned about
 concept of indecency closely related to concept of obscenity;
 gist is that the court is not the place for subjective value judgments, should replace community standards
test with harm based approach
 Crown has burden BRD of showing harm; must be serious degree of harm to point of interfering w/ proper
functioning of society and cannot be a trivial/speculative harm but a harm demonstrated through evidence –
i.e. disavow part of Butler which suggests that common sense standard is ok
 result is to solidify growing irrelevance of obscenity provision to CC; now burden is high and need
evidence of serious harm (don’t always need evidence, for example, if snuff film and someone’s killed
don’t need evidence).
Little Sisters Book and Art Emporium v. Canada (Minister of Justice) and Customs Censorship (2000, SCC)
(981); (2007, SCC)
Facts: LS was frequent target of customs officials for inspection and detention of materials ordered by the store,
often deemed obscene by Customs. LS alleges that Customs Tariff provisions that permit officials to detain material
suspected as falling w/in any of the criminal definitions (in the obscenity provision) and prohibit their importation
constituted an infringement of 2b and 15 (b/c evidence clearly suggests that systematic harassment and prejudice w/
regard to enforcement of obscenity guidelines at the border) and seeks declaration that legislation is invalid.
LS is attacking: 1. decision in Butler to uphold CC prohibition on obscene material was incorrect, and even if it was
correct, the approach taken in Butler in determining whether material is obscene cannot be transferred to gay and
lesbian erotica
2. procedural deficiencies in the scheme of applying the law at the border that have the effect of infringing on gay
rights.
Decision: Freedom of expression (and equality rights) of LS had been violated by customs pattern of enforcement on
the basis of sexual orientation, and by s. 163(8) of CC. Split 6-3 on remedy. Majority holds that the Customs Act and
procedures in the Customs Tariff are not unconstitutional, problem is with the administration of the Act by customs
officials. Majority issues a declaration of unconstitutional application of the legislation to LS (a declaration that LS
rights of 2b and 15 were violated) but declines to strike down the legislation; the only provision that is struck down
is the reverse onus in administrative decisions regarding obscenity. Violation of 2b from obscenity provision in CC
and Butler harm test justified under s.1. (Note: Dissent remedy: suspended strike)
1. The Butler harm test for obscenity is gender-neutral, so it is appropriate b/c aggregation of the national
constituency results in overall toleration. Degrading or dehumanizing is still the test; a harm based
rationale is of equal concern for both sexual orientations
2. Application of law: it is reasonable for Parliament to rely on officials to apply the law lawfully. There is
nothing on the face of the legislation that contemplates differential treatment on the basis of sexual
orientation, so the legislation is constitutional. Enforcement of the law is unconstitutional, not the law itself.
Inadequate training of customs officials and lack of resources resulted in high error rates in determining
what is obscene and what is not, and the enforcement problems must be remedied (but trust customs to
admin properly)
(1) Dissent (Iacobucci): The customs legislation itself is deficient and does not constitute minimal impairment,
49
doesn’t ensure adequate procedural rights. Would have struck down legislation, suspended for 18 months to
give Parliament time to redraft it with appropriate safeguards. Unacceptable to treat constitutional right in same
way as other imported material; need special safeguards.
(2) Notes: The lesson from the majority’s judgment is that the SCC will go out of its way to not strike down certain
laws.
Ryder:
 fatal mistake of SCC in not striking down legislation, as declaration does not mandate anything, but relies on
the good will of other branches of government to change things
 in many instances, declarations of unconstitutional application are very effective b/c Canada has a long history
of constitutional compliance, but doubtful it will be effective here; when the problem is entrenched censorship
regime, need systematic change – here, need built in procedural rights – only material that falls in core of child
porn, sedition etc should be detained and only after prompt hearing where person can hear case against them; In
US must be w/in 30 days; if we believe in freedom of expression we should be cautious around the margins and
not overly zealous
 1994-2000 Customs has taken positive steps to streamline procedures etc., send material to Ottawa, but still
detention of material that in bookstore’s view doesn’t fall w/in definition of obscenity; LS back in ct
challenging detention of graphic novels
(1)
(2)
R. v. Sharpe (2001, SCC) (p 986) Most extensive use of reading in remedy.
(1) Facts: S. 163.1(4) of the Code makes it an offense to possess child pornography, which is defined in 163.1(1) as
visual representation which depicts an individual under 18 engaged in explicit sexual activity or the dominant
characteristic of which depicts the sexual organs of an individual under 18. 163.1(1) also includes written
material or visual representations which advocate or counsel sexual activity with persons under 18. Defenses
available are artistic merit and public good. Low courts hold the law unconstitutional, apparently for lack of a
demonstrated salutary benefit commensurate with its degree of infringement on freedom of expression.
(Recall: Sopinka: Bulter: can be upheld b/c does not capture private expression and criminalize simple possession).
Not sufficient to shut down child porn production, need simple possession offence (possession for one’s own use);
also captures painting, drawings, computer generated images – rationale is that given sophistication of technology it
is practically speaking, very hard to prove if something is computer generated. Claim is that offence overreaches in
prohibited imaginary representations
Decision: s.163.1(4) violates 2b, but “Simple possession” offence upheld under s. 1 by Reading in two exceptions:
1) products of the accused’s imagination possessed exclusively for personal use;
2) visual records of the accused’s lawful sexual acts involving teens possessed exclusively for personal use
 rest of provision upheld; pressing and substantial objective; meets proportionality test
 Sharpe acquitted on his stories, convicted w/ respect to some pictures.
(1) Reasons:
1. Characterization: possession of expressive material of a sexual nature is protected expression. Selffulfillment value. Possession is a form of expression
2. Construing the law: The law may be overbroad in that it catches two categories of expression which engage
the value of self-fulfillment and pose only a remote risk to children (the two exceptions that are read in).
Otherwise, properly interpreted, the “dominant sexual purpose” test should sufficiently reduce uncertainty
as to whether innocent people will be caught.
3. Section 1 analysis:
a. Pressing and substantial: Prevention of harm to children qualifies.
b. Rational connection: There is no requirement for scientific proof, just the establishment of a
“reasoned apprehension of harm” (see Butler). Private viewing may influence attitudes, leading to
harm.
c. Minimal impairment: Even properly interpreted, the law may be overbroad, as previously noted, so 2
exceptions read in.
d. Proportionality: Generally, the infringement is proportional to the objective. But with regards to the
two categories of expression previously mentioned, the infringement is not justified by the small
degree of extra protection afforded children.
(1) Therefore, instead of striking down the entire law because of the two categories where infringement is not
justified, court decides it wants to read into the law. Passes Schachter test:
(i) Is the legislative intent obvious and reading in will further that objective or be less restrictive than striking
50
down the whole law?
(ii) Is the choice of means used by the legislature to further the legislation’s objective so unequivocal that
reading in would constitute an unacceptable intrusion into the legislative domain?
(iii) Would reading in require an intrusion into legislative budgetary decisions?
Ratio: Where a provision violates the Charter by overreaching, exceptions can be read in by the Court.
Notes:
 2002 and 2005 amendments to s.163.1: new offence of “knowingly accessing” child pornography;
definition of child pornography expanded to include more written descriptions and audio recordings (if
description is the dominant characteristic); defence of artistic merit removed, replaced by “legitimate
purpose” defence
 McLachlin’s judgment in Butler upheld provisions b/c of artistic merit defence, and b/c she
thought it would not catch expressive sexual expression b/w consenting adults. So, highly possible
that provision as amended is vulnerable to a Charter challenge.
Freedom of Religion Summary
R. v. Big M Drug Mart Ltd. (1985) (SCC)
Facts: federal Lord's Day act prohibited any work or commercial activity on Sunday.
Decision: the Lord's Day act is struck down as an unjustifiable interference with freedom of religion.
Dickson(+4):
s. 2(a):The purpose of the act is to compel observance of the Sabbath - a religious purpose (cb 579). Rejects the
argument for "shifting purpose," saying that to allow this would create uncertainty and invite re-litigation of the
same issue. (cb 580). States that the "essence" of freedom of religion is the right to entertain whatever religious
beliefs you chose, the right to declare those beliefs openly without fear of reprisal, and the right to manifest belief by
worship and practice or by teaching and disseminating. However, the concept also means more - freedom of religion
means freedom from religious coercion, and in proclaiming the standards of the Christian faith, the Act creates a
climate hostile to, and gives the appearance of discrimination against, non-Christian Canadians. (cb 581)
s. 1: Act is unjustified because the objective is illegitimate. Were the objective secular, it would fall within the
power of the provinces. (cb 585)
Note: this case also set down the precedent that anyone could defend a criminal charge by arguing that the law is
constitutionally invalid, even if their rights are not infringed.
Syndicat Northcrest v. Amselem (2004) (SCC)
Facts: Syndicat filed for a permanent injunction to prevent Orthodox Jews, living in their condominium complex,
from erecting "succahs" on their balcony, which was contrary to the condo by-laws. Amselem fought the injunction
by relying on freedom of religion granted in Quebec Charter.
Decision: SCC allows an appeal from previous courts which had granted the injunction.
Iacobucci (+4):
s. 2(a) (although not really, this is QB Charter): After discussing the principles underlying s. 2(a) jurisprudence,
summarizes the law up to this point as supporting the view that "freedom of religion consists of the freedom to
undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she
sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her
spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in
conformity with the position of religious officials." (para. 46) He advocates an approach that focuses on the sincerity
of a belief and ignores questions about the validity or that belief, or its support by dogma or religious officials. (para.
48-53) This approach is favourable because avoids state intrusion into religious questions (para. 55) Afterwards
(para. 56-62), lays down the following test for a s. 2(a) breach:
Claimant must show:
1) they have a practice or belief, having a nexus with religion, which 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.
2) they are sincere in the belief.
3) impugned law interferes with their inability to act in accordance with that belief in a non-trivial way.
4) right does not overly negatively impact on the rights of others (in the context of the competing rights of private
individuals). (internal limits not expounded upon further, possibly only applicable in non-Charter context).
 Iacobucci J. finds that the appellant's right to religious freedom is significantly impaired, while the rights of the
neighbours are minimally impaired. (para. 64) Also finds that other requirements met. Thereby, right to
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religious freedom violated.
Dissent (Bast. +2): Favour an approach that requires a claimant to show, preferably through expert evidence, (1) the
existence of a religious precept, (2) sincere belief that the practice dependent on the precept is mandatory, and (3)
the existence of a conflict between the practice and the rule. (supp. 72). They find a violation, but it is saved under s.
9.1 of the Quebec Charter, which requires asserted rights be in harmony with the rights and freedoms of others.
Dissent (Binnie): Other co-owners were entitled to conclude that the appellants, by accepting the declaration of coownership, were indicating that the practice of their religion permitted them to live within the existing rules. (supp.
73).
Multani v. Commission scolaire Marguerite-Bourgeoys (2006) (SCC) (supp. 74)
Facts: Sikh boy claims his s. 2(a) rights violated by school board policy prohibiting wearing a kirpan.
Decision: SCC applies the Amselem test to find that boy's religious freedom infringed, as Multani establishes a
sincere belief he is required to wear a metal dagger. Charron (writing for 5, although full court agrees in outcome)
finds prohibition for valid objective (safety in schools) and rationally connected, but does not minimally impair the
right - minimal impairment in this context said to be similar to reasonable accommodation - respondent failed to
demonstrate they could not reasonably accommodate . Also, deleterious effects failed because prohibition stifles the
promotion of multiculturalism.
Owens v. Sask. (Human Rights Commission) (2006) (Sask. C.A.) (supp. 79)
Facts: Sask. HR code prohibits the publication of statements which expose to hatred or belittle the dignity of people
on the basis of prohibited grounds. Owens ran a newspaper add protesting Gay Pride Week with Bible quotes and a
diagram with two guys holding hands and a line through it. Prohibition challenged under 2(a).
Decision: Prohibition upheld as a reasonable limit on 2(b) and 2(a), but when applied to the facts of the case, Owens
is acquitted, as the ad, though "jarring", fell short of "the intense feelings and strong sense of detestation, calumny
and vilification" necessary to fall afoul of the prohibition.
(see supp. 75-79 for more materials on same-sex and freedom of religion issues)
R. v. Hutterian Brethren of Wilson Colony (2009) (SCC) (handout)
Facts: In Alberta, religious objectors were granted a non-photo driver's license at the registrar's discretion, but in
2003 a new regulation was adopted making the photo requirement universal. Unable to reach a new agreement with
the government, Hutterians challenged the regulation under s. 2(a).
Decision: 4-3 majority uphold the regulation under s. 1.
McLachlin (+3): Maintaining the integrity of the driver's licensing system in a way that minimizes the risk of
identity theft is clearly a goal of pressing and substantial importance. (para. 42) Regulation is rationally connected
because "the existence of non-photo licences in the system raises the possibility that a person could hold multiple
licenses in different names, as long as no more than one of them was a regular photographic license." (para. 50) The
regulation passes the minimal impairment test because "all other options would significantly increase the risk of
identity theft using driver's licences." (para. 62) As for salutary effects, 3 were proposed and accepted: enhanced
security of licensing regime, assisting in roadside safety and identification, and harmonizing the scheme with other
provinces. (para. 79). The deleterious effect is the cost imposed on Hutterians because they cannot drive of
highways. (para. 96) McLachlin says they can hire drivers (para. 97-99), and therefore the salutary and deleterious
effects are proportionate (para. 103).
Dissent (Abella)(LeBel and Fish write concurring): Regulation fails the final part of the Oakes test. The salutary
effects are slight and largely hypothetical, as adding around 250 photos of Hutterites would only be a marginal gain
in fighting id theft, and Hutterians have to sacrifice their communal way of life. (supp. 17)
Religion in Public Schools
Zylerbery v. Sudbury Board of Education (Director) (1988) (Ont. C.A.) (cb 600)
Facts: Education Act gave minister power to make regulations providing for religious exercises in public schools
and the exemption of pupils from those exercises. Under the regulations, the minister made the school open with a
reading from the Scriptures (or other suitable) and repeating of the Lord's Prayer (or other suitable). 3 parents (Jew,
Muslim, and Atheist) challenge the law.
Decision: Regulation is struck down.
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Majority: finds that regulation infringes 2(a) right. Instead of helping the scheme conform, the exemption provision
"imposes a penalty on pupils from religious minorities who utilize it by stigmatizing them as non-conformists and
setting them apart from their fellow students who are members of the dominant religion." (cb 603) The majority
does a hasty Oakes analysis, saying that minimal impairment is failed because Toronto school Board does it better
(sing O'Canada, read from one of many different viewpoint texts, and moment of silence). (cb 604).
Dissent: The purpose of the regulation is to facilitate participation in a religious activity. Section 2(a) does not
prohibit all governmental aid to or advancement of religion per se. No good evidence that the obligation to seek an
exemption imposes on minorities a compulsion to conform. (cb 605) Regulation is valid, but school board's practice
of selecting only Christian prayers is unjustified Charter infringement. (cb 606)
Freitag v. Penetanguishene (1999) (Ont. C.A.) (cb 606)
Held: the Mayor of Penetanguishene's practice of opening town council meetings by inviting councillors (and,
indirectly, members of the public) to rise with him and recite the Lord's Prayer violated s. 2(a) and could not be
justified under s. 1. Broad view of coercion.
Canadian Civil Liberties Assn. v. Ontario (MoE) (1990) (Ont. C.A.) (cb 606)
Held: Different subsection of same regulation in Zylerberg, which required time be devote to "religious education",
was struck down. The regulations allowed for clergymen, or clergymen "of different denominations", to come teach,
and allowed exemptions for pupils. The court saw that the purpose of the reg. was indoctrination with the Christian
faith (otherwise why would you need an exemption?). Failed s. 1 for that reason (cb 607).
Trinity Western University v. British Columbia College of Teachers (2001) (SCC) (cb 607)
Facts: TWU, a private institution, was an evangelical college incorporated in BC an accredited with the Association
of Universities and Colleges of Canada. They had a teacher training program under Simon Fraser University, but
wanted to assume full responsibility for it. This could be granted by the minister, but the BC College of Teachers
(BCCT) was created for the function. BCCT denied approval of the program because TWU made student sign a
pledge to refrain from Biblically forbidden practices. BCCA found that BCCT had jurisdiction to consider whether
program was discriminatory, but ordered the program be approved within 5 years, subject to conditions.
Decision (8): Appropriate standard of review is that of correctness. (cb 610) Although BCCT was right to consider
the impact of TWU policy on public school environment, they needed to consider more (cb 612). "TWU's
community standards, which are not limited to prescribing conduct of members while at TWU, are no sufficient to
support the conclusion that the BCCT should anticipate intolerant behaviour in the public schools. Indeed, if TWU's
community standards could be sufficient in themselves to justify denying acreditation, it is difficult to see how the
same logic would not result in denial of accreditation to members of a particular churh." (cb 612) "Absent concrete
evidence that training teachers at TWU fosters discrimination in the public schools of BC, the freedom of
individuals to adhere to certain religious beliefs while at TWU should be respected." (cb 613)
Ross v. NB School District No. 15 (1996) (SCC) - see cb 615 for relevant religion analysis.
Chamberlain v. Surrey School District No. 36 (2002) (SCC)
School Board decision not to include 3 books into curriculum - books depicting same-sex parents - is overturned.
Headnote (of majority reasons):
The Board’s decision is unreasonable because the process through which it was made took the Board outside
its mandate under the School Act. First, the Board violated the principles of secularism and tolerance in s. 76
of the Act. Instead of proceeding on the basis of respect for all types of families, the Board proceeded on an
exclusionary philosophy, acting on the concern of certain parents about the morality of same-sex
relationships, without considering the interest of same-sex parented families and the children who belong to
them in receiving equal recognition and respect in the school system. Second, the Board departed from its
own regulation with respect to how decisions on supplementary resources should be made, which required it
to consider the relevance of the proposed material to curriculum objectives and the needs of children of samesex parented families. Third, the Board applied the wrong criteria. It failed to consider the curriculum’s goal
that children at the K-1 level be able to discuss their family models, and that all children be made aware of
the diversity of family models in our society. Instead, the Board applied a criterion of necessity, which was
inconsistent with the function of supplementary resources in enriching children’s experience through the use
of extra materials of local relevance. The Board erred in relying on concerns about cognitive dissonance and
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age-appropriateness which were foreclosed by the curriculum in this case. In the result, the question of
whether to approve the books is remanded to the Board.
Reference re Bill 30, an Act to amend the Education Act (Ontario) (1987) (SCC) (cb 625)
The Court considered whether an extension of public funding to Catholic high schools, but not other schools, in
Ontario violated s. 2(a) and/or s. 15(1). A majority found that the Tiny decision (1928 PC decision saying that high
schools - coming into existence in the early 1900s - were not entitled to funding) was wrongly decided, and that
"Roman Catholic separate school supporters had at Confederation a right or privilege by law, to have their children
receive an appropriate education which could include instruction at the secondary school level and that such a right
or privilege is therefore constitutionally guaranteed under s. 9(1) of the Constitution Act, 1867."
LIFE, LIBERTY, AND SECURITY OF THE PERSON
Section 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.
Two Step Process for Establishing a Violation (onus on claimant on BOP)
1. claimant must demonstrate an interference, in purpose or effect, with one of the three interests protected in s.7;
and
2. the claimant must demonstrate that the interference is not in accordance with the principles of fundamental
justice – conduct that violates POFJ most frequently described as “conduct that would shock the Canadian
conscience” i.e. is the conduct so fundamentally unacceptable to our notions of fair practice and justice? (Burns;
Suresh)  stage often amounts to a proportionality inquiry that weighs the importance of the state objective
against the severity of the violation of LLSoP
Note:
 it is in claimant’s interests to establish through evidence as many violations as possible, since the second stage
of the s. 7 analysis – showing a breach of the POFJ – often amounts to a balancing or proportionality inquiry
 Proportionality: The Court's decisions in recent years have indicated a strong preference for reducing the
substantive component of fundamental justice to a single proportionality test. The pofj will be violated, on this
view, whenever the state has failed to strike a reasonable balance between life, liberty and sotp and competing
interests (Burns; Suresh).
Section 7
 leads off legal rights portion of the Charter; appears to have close affiliation w/ other legal rights, namely ss. 814; 8-14 are illustrative of, but do not exhaust, the meaning of s. 7 (Motor Vehicle Reference)
 location of s. 7 explains why members of SCC have understood its purpose as protecting against deprivations of
LLSP “that occur as a result of an individual’s interaction w/ the justice system and its administration” (New
Brunswick v. GJ)
 s. 7 may apply in a variety of contexts, not just the crim law, and has been applied to:
 the administration of HR legislation (Blencoe)
 to state-imposed medical treatment (BR “Sheena B”)
 to state-initiated custody proceedings (GJ)
 it is not yet clear whether s.7 has any role to play outside of situations where the state is
enforcing and securing compliance with the law through adjudicative proceedings (Gosselin:
majority decision per McLachlin does not foreclose possibility that s.7 may apply outside an
adjudicative context); per Bastarache J for a minority at para.215 ("some relationship to the
judicial system or its administration must be engaged before s.7 may be applied").
 Does not include property or contract rights
 avoidance of “due process”
 “principles of fundamental justice”: drafters concerned about avoiding US experience of ‘due process’
interpreted as including both ‘substantive due process’ and ‘procedural due process’; allows judges to import
substantive values into Constitution: Lochner USSC ruling entrenched freedom of contract and of property in
American constitution; struck down labour standards legislation as unconstitutional (1905-37 Lochner era were
laissez-faire principles entrenched in Constitution); Roosevelt threatened to expand USSC w/ democrats, so
1937 one member switches sides and upholds statutes that interfere w/ contract/property rts (‘switch in time that
54


saved nine’) (Roe v. Wade constitutionalizes woman’s decision to abort, ruling based on right to privacy
entrenched in due process); drafters thought principles of fundamental justice would restrict ct to procedural
rights, which has not happened - Motor Vehicle Reference: POFJ are not restricted to principles of
procedural fairness
s.7 rights can be claimed by “everyone” - “every human being who is physically present in Canada”: Singh
1984 SCC
does not apply to corporations b/c the interests protected are human interests, but if a corporation is charged w/
an offence they can raise s. 7 arguments on behalf of others, Big M: nobody, not even corporation can be
charged under unconstitutional provision
Life: begins at birth
 plays little role in case law b/c state action causing death/risk of death obviously will also be a deprivation of SP
or liberty
 inclusion of life may support the view that capital punishment is prohibited by s.7 (if it does not accord with the
pofj) and by s.12 (if it is cruel and unusual punishment).
 In Rodriguez, Cory J. (writing on his own) made the creative suggestion that a criminal prohibition on assisted
suicide violated the right to life: "The life of an individual must include dying. Dying is the final act in the
drama of life. If, as I believe, dying is an integral part of living, then as a part of life it is entitled to the
constitutional protection provided by s. 7. It follows that the right to die with dignity should be as well protected
as is any other aspect of the right to life. State prohibitions that would force a dreadful, painful death on a
rational but incapacitated terminally ill patient are an affront to human dignity."
Liberty
 violated by physical restraint and restrictions on freedom of movement (Heywood)
 wherever the accused is charged with an offence that has imprisonment as a possible penalty, liberty is at
stake (Motor Vehicle Reference) (but not where no possibility of imprisonment, law will not violate s. 7 even if
it does not accord w/ POFJ – Pontes)
 more modest restrictions on physical liberty, like being compelled to provide fingerprints or DNA, produce
documents, or give oral testimony also implicate s. 7
 does not include economic liberty
 also includes “autonomy in making decisions of fundamental personal importance” – there are certain
fundamental decisions that fall w/in s. 7 and State can only deprive us of them if it is in accordance w/ POFJ
(Wilson alone in Morgentaler; majority finally followed it in Blencoe)
 Cases: Morgentaler; Sheena B; Godbout; Blencoe
Security of the person
 protects physical and psychological integrity
 violated by state imposition of serious psychological stress, assessed objectively
 can be violated in criminal or civil proceedings
 Cases: Morgentaler; Rodriguez; New Brunswick v. GJ; Blencoe; Stillman; Gosselin
Principles of fundamental justice (lots of disagreement, but definitely include below)
•
•
•
•
•
•
•
in addition to the specific rights listed in sections 8 through 14, the pofj include:
procedural fairness
1. right to hearing before independent/impartial tribunal
2. right to a decision based on the facts and on the law
3. right to know the case against oneself and right to answer that case
no punishment of innocent (mens rea requirement) (see below) (Motor Vehicle Ref)
intelligible standards (vagueness)
lack of arbitrariness (Chaoulli)
least restrictive means (overbreadth)
protection from extreme violations of human dignity
55
•
•
•
protection from self-incrimination
right to a fair trial, including right to make full answer and defence
gross disproportionality is a violation of pofj (Suresh)
Mens Rea
 “the innocent should not be punished”
 absolute liability violates s.7 if life, liberty or sotp at stake (e.g. if violation of law entails possibility of
imprisonment)
 subjective mens rea required for murder, attempted murder, war crimes and crimes against humanity
 due diligence defence suffices for regulatory or public welfare offences
 fault or negligence suffices for most true crimes
 intoxication must be a defence if it removes the mental element required by s.7 (Daviault 1994, Robinson 1996)
 s.33.1 Criminal Code: will it survive? probably: see Mills 1999
What principles have been determined not to be pofj?
 harm principle (Malmo-Levine 2003 SCC)
 best interests of the child (CFCYL– exempts form the assault offense reasonable force used by parents
and teachers.
Cases on Procedural Fundamental Justice: Morgentaler; Sheena B; GJ
Cases on Substantive Fundamental Justice: Rodriguez
Motor Vehicle Reference (1985) (SCC) – LAMER
Pofj include a procedural and substantive component
Facts: s. 94(2) of BC’s Motor Vehicle Act imposed a fine and imprisonment on a driver for driving while his or her
license was suspended, regardless of knowledge or intent.
Decision: Imprisonment is a clear deprivation of liberty, and the court finds that s. 94(2) violates the POFJ that the
innocent should not be punished. The section is struck down.
Reasons: This case is the SCC’s first big discussion of the POFJ. Lamer J. writes that they “are to found in the basic
tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the
judiciary as guardian of the justice system.” (cb 881) However, the POFJ are not the same things as principles of
natural justice, which are solely procedural rights. Rather, s. 7 embraces all of the rights set out in ss. 8-14 (it would
be silly to interpret it more narrowly than those rights), and the POFJ are not “limited solely to procedural
guarantees” but have the potential for “future growth… based on historical roots.” (cb 882)
R. v. Morgentaler (1988) (SCC)
Facts: Abortion was criminalized in the Code, but s. 251(4) provided an exception for therapeutic abortions
performed in accredited hospitals if they were approved by a committee that determined the abortion was necessary
to preserve health, and performed by a doctor not on the committee.
Decision (DICKSON + Lamer): Code prohibition violates “security of the person” as it involves state interference
with bodily integrity and serious state-imposed psychological stress. (cb 884) The combined effect of all of the
procedural problems surrounding s. 251 (only 20% of hospitals offered abortions) is a failure to comply with the
principles of fundamental justice – “one of the basic tenets of our systems of criminal justice is that when Parliament
creates a defense to a criminal charge, the defence should not be illusory…” – “if that structure is ‘so manifestly
unfair’… that structure must be struck down.” (cb 887)
Decision (BEETZ + Estey): Security of the person is violated because the requirements create “additional risk” to
health and life by preventing timely medical treatment. (cb 889) No mention that psychological stress can count as a
violation of security of the person, and reject the idea that the section could constitute a violation of liberty, as “there
would be a time at which the state interest in the foetus would become compelling.” (cb 890) In the end, strike down
a number of requirements that create “unnecessary” delays, which do violate the POFJ. (cb 890)
Decision (WILSON): Substantive issue of liberty should be decided so that the legislature is not wasting their time
re-writing the requirements. (cb 891) The right to liberty is founded on the concept of human dignity, and thus,
“properly construed, grants the individual a degree of autonomy in making decisions of fundamental personal
importance.” (cb 892) Deprivation of a s. 7 right that also infringes a right found elsewhere in the Charter (s. 2(a) in
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this case) cannot be in accordance with POFJ. Not s. 1 saved because it takes decision away from women at all
stages of pregnancy. (cb 894)
Decision (McINTYRE + La Forest): “It cannot be said that the history, traditions and underlying philosophies of our
society would support the proposition that a right to abortion could be implied in the Charter.” (cb 895)
5-2 ruling declaring invalid the abortion prohibition in s.251 of the CC.
Section 7 Analysis
Liberty
interference with physical liberty
 yes, Dickson and Beetz base their judgment on interference w/ M’s physical liberty b/c prison is possible
punishment
Interference with a decision of fundamental personal importance
 yes, Wilson bases her decision on the infringement of a women’s right to decide for herself whether to
terminate her pregnancy; now accepted by rest of the court that liberty includes right to make such decision
(majority of the court now agrees that liberty includes right to make fundamental personal decisions –
Blencoe; but part of her reasoning that interference w/ conscientious decision violates s. 7 has not been
followed)
Security of the Person
interference with physical integrity
 yes, per Dickson: security of person includes right to make decisions regarding one’s body – violated here
 yes, per Beetz – security includes access to “effective and timely treatment” when “life or health in danger”
(NB: relied on in Chaoulli).
 yes, per Wilson
Interference with psychological integrity
 Yes, per Dickson “serious state-imposed psychological stress”
 Yes, per Wilson
POFJ Analysis: Do the restrictions in s. 251(4) on access to abortion violate the principles of fundamental justice?
 violations of women’s psychological security “manifestly unfair”, defence operates in an arbitrary and
illusory manner - Dickinson
 law causes “unnecessary delays” in access to medically necessary service (Beetz at 1084) – least restrictive
means, proportionality argument).
 violates women’s freedom of conscience (protected by s. 2a) (Wilson) – anything that interferes with
another Charter right cannot be consistent with pofj.
Note: this means that for Dickinson and Beetz, if the law was not unnecessarily unfair or if the law did not cause
unnecessarily unfair, the law would be ok. Only Wilson finds that s. 7 includes the right to have an abortion.
Section 1 Analysis
 balancing the protection of potential life with the lives and health of women is a pressing and substantial
objective; the arbitrary, unfair, illusory defence in s.251(4) does not satisfy any of the steps of the
proportionality analysis (Dickson)
 protection of the foetus is a pressing and compelling objective (Beetz and Wilson); procedures that cause
unnecessary delay are not rationally related to that objective (Beetz); s.251(4) fails the minimal impairment
test because it takes the decision away from women at all stages of pregnancy (Wilson)
Remedy: Prohibition on abortion in s. 251 of CC declared invalid.
(remedy shows what the court really thinks is problematic with the law)
if struck down – abortion would be a crime (no exemption in (4) severance not possible here, all part of the same
comprehensive scheme. no declaration of suspended invalidity.
Rodriguez v. BC AG (1993) (SCC)
Facts: challenge to the prohibition on assisted suicide in s.241(b) of the Criminal Code, seeks declaration that
prohibition cannot apply in her circumstances; in essence she is seeking a constitutional exemption. R’s claim is that
effect of offence is to have particularly burdensome impact on severely physically disabled and constitutes
discrimination on basis of disability and violation of s. 7 rights. Here s. 7.
Decision: 5-4 ruling upheld the validity of s. 241(b).
Majority per Sopinka: sotp violated, but no violation of the pofj
Dissent per McLachlin: violation of sotp not in accordance with the pofj; arbitrary in R’s circumstances
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[Dissent per Lamer: violation of s.15, equality rights of disabled (did not discuss s.7)]
 Step 1: Violation of security of the person, following Morgentaler, s.241(b) removes an aspect of control over
her body (Sopinka at 1093; McLachlin at 1097-8) (violation taken for granted, as possibility of imprisonment
under s. 241(b))
 Step 2: POFJ: Ct splits.
 agreement that arbitrary laws violate the pofj (Morgentaler)
 Majority (Sopinka): objective is the protection of the vulnerable; given risk of abuse of the vulnerable and
difficulty of designing safeguards, cannot say the prohibition is arbitrary or unfair so dismisses s. 7 argument
 Dissent (McLachlin): casts the objective in similar terms (protect against exploitation of vulnerable), but says
the prohibition is arbitrary (other provisions of the Criminal Code can guard against abuse, such as culpable
homicide or Parliament can address concern over abuse; and provision has the effect of only depriving severely
disabled of the right to control time and manner of their death)
 Remedy proposed by dissent (4 judges): declaration of invalidity of s. 241(b) suspended for one year to give
Parliament a chance to pass a new law that better protects s. 7/15 rights of claimant and those like her and to
give R a meaningful remedy by saying that R and those like her could petition court for a constitutional
exemption from the operation of s.241(b) (can be helpful in protecting rights of claimant in short term) (need
certificate signed by treating doctor and psychiatrist specifying that a range of conditions have been met –
mentally competent, free and voluntary decision, physically incapable of taking life)
SCC had never used constitutional exemption as sole remedy; but here 4 say that if law is found to be
unconstitutional and the court has decided that suspension of invalidity is necessary, in the period of
temporary validity worth considering a constitutional exemption as may best protect rights of claimant
Note: as opposed to Keegstra, Big M. etc that raise argument that they cannot be convicted under a law that is
unconstitutional in its application to everyone to whom it could apply; different than style of argument here which
seeks declaration that the prohibition on assisted suicide was alright in bulk of its application, just not appropriate
for someone in her situation.
Suresh v. Canada (Minister of Citizenship and Immigration) (2002) (SCC) – THE COURT
Facts: s. 53(1)(b) of the former Immigration Act permitted deportation of refugees, even if their life or freedom
would be in danger, if they were members of terrorist organizations and the Minister decided they posed a security
risk. Gov’t established that Suresh was a member of the Tamil Tigers terrorist organization; Minister had evidence S
posed threat to Canadian security and moved to deport him; Suresh sought judicial review, arguing that Act violated
s.7 and that he’d be tortured if returned to Sri Lanka.
Decision: Court holds deportation to substantial risk of torture violates pofj, barring extraordinary circumstances.
Provision upheld. “The guarantee of fundamental justice applies even to deprivations of life, liberty or security
effected by actors other than our government, if there is a sufficient causal connection between our government’s
participation and the deprivation ultimately effected.” (cb 912) New hearing ordered for Suresh. Problem is not the
provision but how it has been administered. Suresh not given adequate notice of case against him so violates
procedural fairness. Since S has established torture is a real possibility, the Minister must: give new hearing (not
necessarily oral); provide written reasons for her decision; disclose the nature of the government’s case that he posed
a threat to security of Canada so S could have opportunity to respond. S still lives here – govts evidence of security
threat maybe not strong enough to succeed at hearing.
 Violation of life, liberty or security of the person: Crown conceded that refugees are protected by s.7, and that
deporting to torture would put life, liberty and security of the person at risk
 Violation of POFJ: unanimous court holds that deportation to a substantial risk of torture, “barring extraordinary
circumstances”, violates the pofj
 Burden is on claimant to establish he faces substantial risk of torture
 POFJ to rely on here is disproportionality; Oakes reasoning creeping into s. 7 analysis saying govt’s response is
not proportional; “notion of proportionality is fundamental to our constitutional system”– gross
disproportionality is a violation of pofj
“Some responses are so extreme (in terms of impact on ) that they are per se disproportionate to any
legitimate government interest” (Burns: DP such an extreme violation of right to life that it can never be consistent
w/ pofj, therefore Minister cannot extradite fugitive to face criminal justice in another country w/o assurance DP
will not be imposed).
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Notes: Security certificate regime has largely displaced effect of this decision. Govt contends all individuals held
under security certificate regime fall under the “Suresh exemption”. Concern over security certificate regime is that
govt could impose much stricter conditions on someone like Suresh. Assurances from govts that they won’t torture
is meaningless vs. assurances that DP won’t be imposed are meaningful.
B.(R.) v. Children’s Aid Society (“Sheena B”) (1995) (SCC)
Issue: whether an order making an infant a temporary ward of the state, for the purposes of administering a lifesaving blood transfusion, violated her Jehovah’s Witness parents’ Charter rights? At issue here is whether it violates
parents’ s. 7 rights.
Decision: Court unanimously dismisses the claim. Right to liberty does not include a parents’ right to deny a child
medically necessary treatment.
 La Forest + 4: parental liberty violated as parental liberty includes right to make fundamental personal decisions
(cb 918), but no violation of the pofj (as parents had opportunity to argue their case before judge) (also saved
freedom of religion violation under s. 1)
 Lamer: liberty restricted to physical liberty (now the minority view, not the law). (see cb 917 for arg. saying that
otherwise s. 2(a) redundant.)
 Iacobucci and Major for 3: “The child’s right to life must not be so completely subsumed to the parental liberty
to make decisions regarding that child… In our view, the best way to ensure this outcome is to view an exercise
of parental liberty which seriously endangers the survival of the child as falling outside s. 7.” (cb 920)
 Sopinka: no breach of the pofj; therefore, no need to discuss liberty
 Court didn’t consider violation of sotp, but could have in sense of psychological security
New Brunswick v. G.(J.) (1999) (SCC)
Leading case on when s. 7 requires state funded counsel
Facts: Gs children made wards of state for 6 months; hearing was to renew state custody for another 6 months.
Decision 9-0 ruling that s.7 requires that G be provided with state-funded counsel at a hearing where the state is
seeking continued custody of her children.
LAMER + 5:
 sotp implicated; serious interference with psychological integrity (cb 922);
 stigmatization, loss of privacy and disruption of family life also amount to a restriction of sotp
 consistency w/ pofj: in the circumstances of this case, right to a fair hearing required state-funded counsel. This
conclusion is reached after considering the factors of 1) the seriousness of the interests at stake, 2) the
complexity of the proceedings, and 3) the capacities of the claimant. (cb 924)
 court careful to say that not all cases of this nature (where State seeking custody) will give rise to right to state
funded counsel; depends on individual factors.
 Government fails Oakes test under deleterious effects analysis (cb 925).
L’H-D + 2: agree with Lamer on sotp and pofj; liberty also violated: includes the right of parents to make
fundamental decisions on behalf of children (now the law - Blencoe)
Notes:
 only decision to directly address issue in constitutional context; Canadian Bar in BC issued challenge, alleging
failure to provide adequate legal aid in civil cases.
•

hard to succeed b/c GJ says need individual assessment; but paradox b/c claimant lacks resources so
how can they make that claim?
Ryder: end up w/ paradox, that there are rights on paper w/o means of enforcing them; how do you enforce rts
w/o being able to afford lawyer; can bring Charter claim that have rt to lawyer, but who will draft claim?
Fundamental flaw; rule of law meaningless w/o access to justice
Blencoe (2000) (SCC)
Facts: Blencoe argues delay in adjudication of sexual harassment complaint violates s. 7 rts, b/c liberty and sotp
violated by delay; seeks stay of proceedings.
Issue: whether unreasonable delay (induced by State) in the adjudication of a sexual harassment complaint (civil
proceedings) violated B’s s.7 rights.
Majority (Bastarache + 4): liberty includes the ability to make fundamental personal decisions without state
interference; but here, delay did not violate liberty or security of the person (psychological stress comes from
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accusations, not from the State’s HR regime – lack of causal connection). (cb 929-930) Possible that delay in civil
proceedings violates s. 7 but must show it is the state’s action which violates s. 7 rights.
Dissent (Lebel + 3): did not address s.7, unnecessary because wanted to give Blencoe and adminstrative law
rememedy: an expedited hearing (cb 933-934).
Evolution of liberty incl. fundamental personal decisions: Morgentaler; Sheena B; GJ
Chaoulli v. Quebec (SCC) (2005)
relies on Morgantaler heavily.
Facts: Quebec legislation prohibited purchase of insurance for private sector services that are available under
Quebec’s public health care plan. C argues that the public health care system’s failure to deliver timely access to
medically necessary services, coupled with legal prohibitions on purchasing private insurance, violate section 7 of
the Charter.
Claim brought by doctor and patient.
Decision: 4-3 ruling; Deschamps for majority finds violation of s.1 of the Quebec Charter and hold that in case of
conflict, Quebec Charter prevails (not a declaration of invalidity). Issue has yet to be resolved for the Canadian
Charter. But...
s. 1 of Quebec Charter is functionally equivalent to s. 7 of the Canadian Charter (but broader scope in application),
so Deschamps decision is relevant for interpretation of scope of right to life and security of person, plus wording of
Quebec Charter’s limitation clause different than s. 1 but Deschamps used the Oakes test. Also remarks on
deference.
o 3 judges (McLachlin and Major, Bastarache concurring) also find a violation of s.7 of the Canadian
Charter (similar to Deschamp reasoning)
o 3 judges dissent (Binnie and LeBel, Fish concurring)
o inconclusive (3-3 ruling) on s.7 of the Charter
Violation of life and security of the person: unanimous agreement that there is a violation
 prohibition plus lengthy delays causing serious physical and psychological consequences, violates life and
security of the person (see supp. 131)
 this conclusion follows inexorably from Morgentaler ruling
 if the state is going to establish a monopoly on heath care, it has to deliver these services adequately).
Prohibiting private insurance means that only the wealthy (who don’t need insurance) gain anything.
Violation of principles of fundamental justice
court is divided here.
 Deschamps: not necessary to discuss – resolves issue on the basis of the Quebec Charter, which is not qualified
by fundamental justice (rights are broader)
 McLachlin and Major: law is arbitrary, bears no relation to the objective of providing effective health care in
the public system. Use evidence of other jurisdictions where there is both private and public insurance (supp
138-139).
Majority opinion is that arbitrariness is a POFJ (dissent agrees!!!)
 Binnie and LeBel: agree that arbitrariness is a pofj; prohibition on private insurance is rationally connected to
the objective of providing universal access to high quality public health care on the basis of need (supp. 141)
Section 1 Analysis:
• Deschamps; Binnie and Lebel: no need to address
• McLachlin and Major: arbitrary provision by definition will fail the rational connection stage of the s.1
proportionality test; also fails the other two stages of the proportionality test.
Remedy
• no remedy under the Canadian Charter (since the majority did not find a violation of the Canadian Charter)
Charkaoui v. Canada (Citizenship and Immigration) (SCC) (2007) MCLACHLIN
Facts: Challenge to the validity of the security certificate provisions of the Immigration and Refugee Protection Act;
one of three appeals heard by the SCC (also Harkat; Almrei). Provisions empower Ministers to issue certificates
detaining foreign nationals or permanent residents on security grounds (regime does not apply to citizens; operates
like criminal law in that detainees subject to imprisonment). Reasonableness of detention must be confirmed by FC
judge within 48 hours (for permanent residents) or within 120 days (for foreign nationals). Government’s evidence
need not be disclosed to detainee or lawyer. If sec. cert. upheld as reasonable, then detainees may be deported.
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Charkaoui, Harkat and Almrei fighting deportation on grounds that it will expose them to a substantial risk of
torture, i.e. violate s. 7 rights.
Decision (McLachlin): Unanimous opinion strikes down parts of the legislation due to lack of procedural protection
in IRPA; declaration suspended for 1 yr to give Parliament time to fix regime.
 Suresh: deportation to face substantial risk of torture, except in extraordinary circumstances, violates s. 7
(principle at play is proportionality)
 Govt’s argument is that these are extraordinary circumstances, but for most part claimants are successful in
arguing not extraordinary circumstances; but then they are subject to indefinite detention or severe forms of
house arrest
Do the IRPA provisions violate life, liberty or security of the person (1 and 2)?
(Recall that describing full extent of interference w/ LLSotP is very important in terms of impact on whether or not
POFJ have been complied with)
1. Deportation itself does not violate the liberty of non-citizens
o s. 6 deals with mobility rights across the country and in sense of leaving/returning to country; but s. 6
rights are conferred only on citizens, so if read s. 7 as right of non-citizens to remain in the country,
then ct would re-write s. 6
o Unless there is some other interference w/ LLSotP, no violation of s. 7 but there will be violation of
common law procedural fairness if non citizens are arbitrarily deported (but Parliament can remove
common law procedural fairness through legislation, which would override common law, but not s. 7)
 So a judge could conclude that a particular detention violates POFJ
2. Because certificates lead to detention (criminal manner in which regime operates) s. 7 right to liberty is violated;
also violated b/c:
o deportation to countries where life, liberty and security of the person may be endangered
o accusation of terrorism may itself violate sotp
o deportation to torture violates sotp
Do the IRPA provisions conform to the principles of fundamental justice?
 pofj must reflect “exigencies of the security context” and the “chilling consequences” for detainees (paras.2527)
 relevant pofj is procedural fairness, which comprises (see para. 31)(supp. 147) :
1. right to a hearing before an independent and impartial tribunal (in this case this req. is met);
2. right to a decision based on the facts and the law (not met in this case); and
3. right to know the case against oneself and the right to answer that case (not met)
 spectrum of right to procedural fairness: from criminal trial to rt to receive letter from Minister
summarizing case against you and right to respond; degree of procedural protection provided in any case
depends on a range of factors, including how important are interests at stake and severity of consequences
 1) is met, but 2) and 3) not satisfied, so violation of procedural fairness
 on 2), because the evidence is withheld from the detainee, the decision may not be based on all of the
evidence available; judges deprived of the whole factual picture and detainee cannot put forward a full
legal argument
 on 3), detainees denied knowledge of the case to be met; may make submissions but may have “no idea as
to what needs to be said”
 severity of consequences – deportation or indefinite detention – requires fuller disclosure of information or
“a substantial substitute” (disclosure to independent special counsel appointed to represent detainee’s
interests)
Are the violations of s.7 reasonable limits under s.1?
 violations of s.7 difficult but not impossible to justify under s.1
 objective: protection of national security
 rational connection between non-disclosure of evidence and objective
 FAILS minimal impairment: special counsel would better protect detainees’ interests without
compromising security
Remedy:
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
security certificate provisions declared invalid; declaration of invalidity suspended for 1 year in order to
give Parliament time to amend the law
Notes: There is still a s. 7 barrier to deportation to substantial risk of torture from Suresh, so government’s goal of
deportation has been blocked.
Gosselin v. QB AG (2002) (SCC)
Issue: Does s. 7 include basic right to social assistance for those who lack resources to meet basic needs? Is there a
positive right in s. 7 to a minimal level of financial security?
Decision: 5-4 decision upholding Quebec social assistance regulations that reduced entitlement of persons under the
age of 30 to 1/3 of the amount available to those over 30.
Majority (McLachlin): s.7 not yet held to impose positive obligations on the state; evidence of actual hardship here
insufficient to “warrant a novel application of s.7” (para. 81-83)
Dissent (Arbour): security of the person includes a positive right to state assistance in meeting basic needs; s. 7 is a
freestanding right to LLSoP and cannot deny that those w/o proper financial resources have their LLSoP seriously
violated; not necessary to show interference w/ POFJ b/c freestanding rights. Would have dramatically expanded s.
7. (see supp. 124 for argument about the grammar of s. 7).
Ryder:
 McLachlin probably agrees with OCA in Flora that s. 7 does not impose positive obligations on the state, but
restricts state’s right to act, but does not require state undertake acts to secure persons’ life, liberty, sotp, but
instead of saying that, she leaves it open
 No serious record of actual hardship so ct clearly reluctant to interpret s. 7 as including positive obligations;
result is that ability of s. 7 to secure LL,SoP rights of poor is seriously limited
 Also, not true that s. 7 hasn’t been held to impose positive obligations on the state: GJ
 Possible a similar claim could succeed b/c of way McLachlin’s argument crafted, but this was strong claim
here, so pretty clear that SCC won’t allow s. 7 to include positive obligations (at least not anytime soon)
Malmo-Levine (SCC) (2003)
To qualify as a principle of fundamental justice:
 The principle must be a legal principle
 There must be a significant social consensus that the principle is vital to our notion of justice; and
 The principle must be capable of being stated w/ precision and yielding predictable results
in addition to the specific rights listed in sections 8 through 14, the pofj include:
(note: many contain s. 1 analysis built in, Thus, s. 1 has little role to play)
1. procedural fairness
2. no punishment of innocent (mens rea requirement)
3. intelligible standards (vagueness)
4. lack of arbitrariness – another way of saying there must be a rational connection
5. least restrictive means (overbreadth) – least restrictive means
6. proportionality
7. protection from extreme violations of human dignity (like deportation to torture)
8. protection from self-incrimination
9. right to a fair trial, including right to make full answer and defence
Flora v. Ontario (2007 Ont. SCJ)
Facts: Ontario docs said procedure not suitable for someone at his advanced stage of liver cancer, so Flora spent
$450 K on procedure in England. F was denied reimbursement by OHIP b/c regulation provides right to funding for
treatment abroad only when treatment is considered appropriate and is unavailable in Ontario. Flora argues that
failure of OHIP to fund life-saving liver transplant violates s.7.
Decision: Claim dismissed. Fails at first stage of s. 7 claim b/c no state interference.
 no state interference with life, liberty or security of the person because the regulation does not restrict patients’
right to purchase out-of-country treatment; s.7 creates no positive rights
 in any case, the regulation is not vague, arbitrary (Chaoulli, Morgentaler) or grossly disproportionate to its
objectives (Suresh)
 Govt did not stop Flora from spending his money as he pleased
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Ratio: S. 7 prohibits the State from actively interfering w/ security of the person, but does not require the State to
take any positive steps to protect sotp. There is no positive obligation on the State to facilitate access to health care
(no freestanding right of access to healthcare). State interference in s. 7 must be active b/c s. 7 confers negative
rights only and does not compel the government to take certain steps.
Ryder: reasoning of ct disturbing, but consistent w/ SCC jurisprudence (Gosselin). Difficult case b/c of facts but
implication of reasoning is that even in the worst possible scenario imaginable, a person w/ no resources at all forced
to go abroad unclear what s. 7 can offer them. Not true that s. 7 confers no positive right – in New Brunswick ct
ordered province to provide legal aid.
In Gosselin SCC did leave it open that in the future s. 7 might embrace positive rights, but hasn’t happened yet.
United States v. Burns (2001, SCC) (1104)
Facts: Burns and R face extradition to US, face DP.
Decision: SCC overruled earlier precedent and said it would “shock the conscience of the Canadians” to extradite
w/o getting assurances ahead of time that DP would not be imposed; emphasis on growing awareness that DP wrong
and on wrongful executions.
Disproportionality is the POFJ at issue.
Governing principle is that the guarantee of fundamental justice applies even to deprivations of LLSoP
effected by actors other than our government, if there is a sufficient causal connection b/w our government’s
participation and the deprivation ultimately effected.
CFCYL (2004) (SCC)
Facts: Crown conceded that s. 43 violates security of the person. State protects us w/ assault provisions, but
exempts from assault charges (creates a defence to assault), for assault that falls under s. 43, so violates children’s
security of the person (by creating risk of private/public actors violating children’s security of the person; court
focussed on fact that the State is making children more vulnerable to violations of sotp).
So, not a good argument that spanking interferes w/ SotP, but creation of legislation that justifies the use of force.
Must establish interference w/ LLSoP by the State.
Decision: 7-2 ruling finding no violation of s.7. Difference b/w majority and dissent is not in the result (as majority
essentially agrees it is too broad) but in whose responsibility it is to draft more carefully tailored provision.
McLachlin reads down. Dissent says Govt.
(6-3 ruling upholding s.43 of the Criminal Code, which justifies the use of reasonable force by parents and teachers
for the correction of children).
Majority (McLachlin): finds no violation of the pofj; rejects arguments based on:
 procedural fairness
o the scope of the intereference w/ sotp will always be determined in course of criminal proceedings,
so get strongest degree of procedural protection
 best interests of the child
o a legal standard, but no consensus it should always be the legal standard that prevails; also hard to
define w/ sufficient precision and POFJ must be definable w/ sufficient precision
 vagueness
o as under s. 1 prescribed by law, very low threshold for sufficient clarity (intelligible standard for
legal debate)
 overbreadth
o no age limit, no mention of whether can use weapons/objects; notion of reasonable force hard to
define; McLachlin reviews jurisprudence, but says in essence a lot of it is wrong and cts have
misread scope of s. 43 – it can only be used for children 2-12 (read in), cannot use instruments
(read in); and in other ways she reigns in scope of justification; Ryder: fair to say they found s. 43
to be too braod, but majority thinks can save it by reading down, whereas Arbour says not our job
to transform scope;
 by creating a defence to assault, creates substantial risk to child’s security of the person
Dissent on s. 7 (Arbour) (Deschamps agrees in a separate dissent)
 law is too vague; accuses the majority of “curing vagueness from the top down” by rewriting the law to
achieve Charter compliance: “At some point, in an effort to give sufficient precision to provide notice and
constrain discretion in enforcement, mere interpretation ends and an entirely new provision is drafted.”
 s.1: cannot meet prescribed by law requirement
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
remedy: declaration of invalidity
R. v. Banks (2007) (Ont. CA)
Decision: Challenge to prohibition on soliciting on roadways in Safe Streets Act and Highway Traffic Act dismissed.
 liberty is implicated since conviction can result in a prison sentence
 pofj: arguments based on vagueness and overbreadth rejected (see supp. 128)
 govt interest is to remove nuisance from roadways and free flow of traffic on roadways
 Ryder: but prohibition framed in such a way as applied to all soliciting and not necessary to do so;
Godbout v. Longueuil (SCC) (1997)
La Forest J., writing for a minority, states that the right to chose where to establish one’s home falls within the scope
of the s. 7 liberty interest.
R. v. Jones, (1986) (SCC)
Minister of fundamentalist congregation charged with truancy for home schooling kids. Majority don’t answer first
part of s. 7 question, saying fundamental justice was done, but Wilson J. asserts that liberty includes right to educate
children in accordance with your religious beliefs.
Prostitution Laws and s. 7 – Liberty and Security of the Person
 Dangerous working conditions
 Govt: evidence from countries where prostitution is legal and abuse that has occurred
 Prostitution laws force them on the streets otherwise bawdy house which violates the CC; laws contribute to sex
trade workers’ exposure to violence
 Objectives underlying provision become very important part of analysis when consider whether pofj
violated (by prostitution related offences)
 Living off avails of prostitution – challenge rejected; main objective of provision is prevention of exploitation;
Parliament responding to concerns over pimp prostitute relationship
 Presumably, ct would say something similar w/ respect to bawdy house provision as it did in obscenity case –
prevent harms (R. v. Labaye)
 Govt: claimant has burden of proving the lack of a rational connection, meaning that claimant must show that
the law bears no relationship to its objective or undermines it; heavy burden for claimant ; hard to argue that
bawdy house offences bear no rational connection to harm prevention, but lack of rationality would be tried
 Could also try arbitrariness (Morgentaler; Chaoulli) – portions of law bear no rational connection to its purpose
 Also, risk of violations of bodily integrity (Burns; Suresh)
 Disproportionality (Suresh) and Overly Broad (Haywood – laws hindered his physical movement and was
overly broad and court accepted overbreadth argument as violation of s. 7 rights; a narrower provision would
have survived s. 7 scrutiny, Note these arguments fail much more often than they succeed; I think provision
prohibited child sex offenders from entering parks???)
Equality Rights Summary
s. 15(1): Every individual is equal before and under the law and has the right to the equal protection and equal
benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical disability
recognized analogous grounds:
1. sexual orientation (Egan; Vriend; M vH; Hislop), [gender id under basis of sex]
2. marital status (Miron; Walsh; Hodge )
3. citizenship (Andrews; Lavoie) and
4. aboriginality residence – whether one lives on or off a reserve (Corbiere)]
not recognized as analogous grounds:
1.
employment status (re Workers Compensation Act)
2.
province of residence (R. v. Turpin)
3.
persons charged with war crimes (R. v. Finta)
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4.
persons bringing a claim against the Crown (Rudolph Wolf & Co. v. Canada)
s. 15(2): Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of
conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or
ethnic origin, colour, religion, sex, age or mental or physical disability (emphasis added).
SCC has been recently re-interpreted s. 15(2) as offering a defence for the government if a claimant shows that a
law makes a distinction on an enumerated or analogous grounds: “A program does not violate the s. 15 equality
guarantee if the government can demonstrate that: (1) the program has an ameliorative or remedial purpose; and (2)
the program targets a disadvantaged group identified by the enumerated or analogous grounds.” (Kapp, para. 41)
BEFORE THE TEST STARTS: CHOOSE COMPARATOR GROUP
“The appropriate comparator group is the one which mirrors the characteristics of the claimant (or claimant group)
relevant to the benefit or advantage sought except that the statutory definition includes a personal characteristic that
is offensive to the Charter or omits a personal characteristic in a way that is offensive to the Charter.” (Hodge;
Auton)
i.e., a group possessed of all of the relevant characteristics of the claimant group apart from the characteristics that
are the claimed grounds of discrimination
 comparator group b/c equality guarantee is a comparative concept
The Law Test for Violations of s. 15(1):
Claimant must establish that the law or challenged govt action has resulted in:
1. differential treatment (in purpose or effect) (need not be intentional discrimination);
Does the impugned law draw a formal distinction b/w the claimant and others on the basis of one or more personal
characteristics, or fail to take into account the claimant’s already disadvantaged position within Canadian society
resulting in substantively differential treatment b/w the claimant and other on the basis of one or more personal
characteristics?
2. based on a prohibited ground (enumerated or analogous);
(analogous: ID shared characteristics  main one is immutability)
Is the claimant subject to differential treatment based on one or more enumerated or analogous grounds? AND
3. that is discriminatory in the sense that a reasonable person in the claimant’s position would conclude that
the law impugns his or her human dignity
Does the differential treatment, by imposing a burden upon or withholding a benefit from the claimant in a manner
which reflects the stereotypical application of presumed group or personal characteristics or which otherwise has the
effect of perpetuating or promoting the view that the individual is less capable or worthy or recognition or value as a
human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?
Purpose of 15(1): prevent violation of essential human dignity and freedom through imposition of disadvantage or
stereotyping and to promote a society in which all persons enjoy equal recognition at law as human beings deserving
of concern, respect, consideration. Existence of conflict b/w purpose/effect of impugned law and purpose of s.15(1)
is essential to found a discrimination claim – determination is made by analysis of full context surrounding claim +
claimant:
There are four contextual factors to consider in determining whether differential treatment on the basis of a
prohibited ground is discriminatory:
1. pre-existing disadvantage
2. lack of correspondence b/w challenged government policy and the claimant’s needs, capacities and
circumstances
3. absence of an ameliorative purpose or effect;
4. severity of impact on important social interests
***Note that not all differences in treatment on basis of prohibited grounds are discriminatory, as s.15(2)
indicates; goal is substantive, not formal, equality – Andrews**
Shared Characteristics of the Existing Prohibited Grounds
The dominant shared characteristic is immutability (Corbiere - McLachlin)
Constructive immutability: Ask whether characteristic is changeable or only at an unacceptable personal cost;
“discrete and insular minority” flows from central concept of immutable characteristics (proxy for politically
powerless)
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Rationale is that it is particularly unfair of State to discriminate on basis of immutable characteristics
Other shared characteristics of recognized prohibited grounds (LHD in Corbiere):
 Group historically lacking in political power or disadvantaged/Vulnerable to becomining disadvantaged or
having interests overlooked
 Patterns of stereotyping
 Whether ground is included in federal and provincial HR codes or international HR
 Prohibited grounds presumptively irrelevant to legitimate state objectives
Once a ground is found to be analogous, it is permanently enrolled as analogous for other cases i.e. it holds across
all legal contexts (Lavoie).
(View of Mc/Bast in Corbiere, LHD view answer could vary from context to context)
Possible Future Analogous Grounds
 family status: so far only in minority judgments, but will likely find it’s way into s. 15, especially b/c HR
provincial codes have it.
 language: OCA says no b/c other parts of Charter deal w/ language rts, and would re-write protection for lang
rights elsewhere in constitution; if drafters wanted to extend to minority lang, would have (ryder: not
particularly compelling); Gosselin – Quebs want kids to go to public English school; denied, would be using
s.15 against s.23; doesn’t mean won’t be acknowledged – lower court rulings have recognized it as analogous
 culture
 employment status: rejected by SCC, not particularly well reasoned, but still a precedent
 poverty or social status/ receipt of social assistance: Banks: SCC refused to accept that extreme poverty is
analogous, but not yet clear SCC ruling; highly mutable category; reluctance to recognize is understandable
notwithstanding compelling grounds; in Falker, Ont. CA did recognize receipt of social assistance as an
analogous ground
 province of residence – NO!!! GOES directly against idea of federal state; allows provinces to pursue different
laws and policies; argument must fail b/c challenges another part of constitution – federalism; more contestable
when differences in treatment in federal law on basis of province of residence; for example certain provisions of
CC only come into being when provinces are ready for them to
 appearance
 criminal conviction: recognized in a number of HR statutes; mainly in context of employment
Other Relevant Provisions of the Charter
ss.3, 6, 23: confer rights on citizens
ss. 16-23: language rights
s.25: Aboriginal rights
s.27: multiculturalism
s.28: sex equality
s.29: denomination schools (preserves historical compromise; Charter should not be interpreted to interfere w/
denominational school rts as guaranteed in Constitution)
s.33: override (sex equality in unique position b/c s. 28 could probably save equality if override put in)
Equality rights that seek to re-write other provisions of the Charter will probably not succeed b/c no principled
reason that one provision of the Charter should be used to re-write another provision/or to undercut other parts of the
constitution; so discrimination on basis of citizenship in context of right to vote, language rights etc. probably will
not succeed; problematic; s. 28 could probably rescue equality if override put in. So for example, don’t argue that
different provincial laws violate equality based on province of residence; fundamental to federal state
Note on s. 15 Jurisprudence:
Provision has done very little for those who need it most, but worth reflecting on why same sex marriage cases have
been so successful;
equality claims re s. 15 sexual orientation is around 80%, whereas success of claims based on other grounds only
about 20%;
almost no significant cases dealing w/ racial discrimination;
could be b/c of way discrimination manifests itself and what cts willing to take on in terms of complexity of
evidence/claims
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Andrews v. Law Society of B.C. (1989) (SCC) (cb 804)
Facts: permanent resident challenges the citizenship requirement for membership in the legal profession set out in
BC legislation.
Decision: 6-0: s.15 violated; 4-2: not a reasonable limit pursuant to s.1; the citizenship requirement was declared of
no force and effect.
McIntyre (opinion, while dissenting on result, expresses the views of entire court on s.15)
Violation of s.15(1): not all differences in treatment are discriminatory, nor should equality be equated with
sameness of treatment: “essence of true equality is accommodation of differences”
“similarly situated test” provides an incomplete (“seriously deficient”) understanding of equality: need to interrogate
substance/objective of law/impact on disadvantaged groups, which similarly situated test does not do b/c it reduces
equality to means/ends rationality)
(could argue s. 15 jurisprudence hasn’t succeeded in moving beyond test)
Test for Violation of s. 15(1): (but new test under Law)
1. differential treatment (in purpose or effect);
2. on the basis of a prohibited ground (enumerated or analogous)
3. that is discriminatory (read: imposes a disadvantage/burden – not all differences in treatment on basis of
prohibited grounds are discriminatory, as s.15(2) indicates, goal is substantive, not formal, equality)
on this test, once citizenship is recognized as an analogous ground, Andrews has no difficulty establishing a
violation of s.15(1)
Stage 3: will result when the claimant establishes differential treatment on the basis of a prohibited ground that “has
the effect of imposing burdens, obligations, or disadvantages not imposed upon others, or which withholds or limits
access to opportunities, benefits and advantages available to other members of society.”
Differences based on stereotypes normally violate; whereas difference that reflect merits and capacities of
individuals/groups will not violate s. 15
Analogous grounds: identify common features of listed (or “enumerated”) grounds, determine whether asserted
personal characteristic shares those features
Common features: McIntyre/Wilson/La Forest (Corbiere): immutability (constructive; unchangeable or only at
great personal costs; irrelevant to merits/capacities); “discrete and insular minority” – invoked as a proxy for
‘relative political powerlessness’/political disadvantage;
Citizenship: b/c one does not have control over short term and not related to merits/capacities, it is analogous ground
Section 1
Majority (4): following Oakes, citizenship requirement not the least restrictive means of ensuring lawyers are
familiar with Canadian institutions and customs
Dissent (2): Oakes test should be relaxed in context of s.15 violations; citizenship requirement is a reasonable
qualification for the practice of law b/c s. 15 is the broadest right and has greatest impact on government policies, so
unreasonable to impose high burden (majority says not true, confined scope to prohibited grounds and
discriminatory)
1995 trilogy: Egan, Miron, Thibaudeau
3 views on s.15(1) emerged:
4 judges were faithful to the Andrews test;
4 judges added a requirement that the claimant demonstrate that the personal characteristic at issue was not relevant
to the “functional values” of the challenged legislation; and
L’Heureux-Dubé favoured a departure from a focus on prohibited grounds of discrimination (erase prohibited
grounds requirement and focus on the nature of the interests at issue and nature of group; if
vulnerable/disadvantaged group being further disadvantaged, that is discrimination)
Egan v. Canada: (cb 814) Held 5-4 that the denial of an old age spousal allowance to same-sex couples violated
s.15, but not the Charter. (Sopinka broke ranks w/ s.15 majority at s.1 stage, leaving it to Parliament to determine
when it had the financial means to extend spousal pension benefits to same-sex couples). Unanimous that sexual
orientation is analogous ground.
Miron v. Trudel: (cb 814) Court held 5-4 that the denial of automobile accident benefits to an unmarried opposite
sex couple constituted discrimination on the basis of marital status, contrary to s.15 – marital status is analogous
ground. Majority held not justified under s.1 (some means more accurate than marriage had to be found to id
economically interdependent family relationships relevant to the legislative objective)
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Thibaudeau v. Canada: (cb 815) Court dismissed a challenge to the “inclusion-deduction” rules in the Income Tax
Act which permit parent who pays child support to deduct it from income and requires parent received support to
add amount to income. Govt: assumes payor in higher tax bracket, so by taxing them in lower income earners hands,
benefits accrue to children through family law system. Inequality claim based on sex b/c 98% of payors men.
Majority Ct: scheme confers benefit on post divorce “family unit”, no violation.
LHD and McLachlin (dissent): violates s.15 b/c imposes disadvantage upon a significant portion of (mostly female)
custodial parents, while providing tax saving to non-custodial.
Law v. Canada (1999) (SCC) (cb 816)
Facts: challenge to denial of CPP survivor benefits to able-bodied widows below the age of 35 without dependent
children. Rationale of benefits: support of non-worker to worker, recognizes dependent relation. Law – not
recognizing her contribution amounts to discrimination based on age.
Decision (Iacobucci): unanimous opinion finding no discrimination on the basis of age.
revises Andrews test by defining discrimination as a violation of “human dignity”; now the leading case on s.15(1)
emphasizes importance of choosing the appropriate comparator group
claimants must build evidentiary record around comparison, often get to ct w/ record and ct rejects claim b/c says
case built on wrong comparator group (Wineberg case w/ autistic children) – huge problem/issue
outlines four contextual factors to be assessed when determining whether differential treatment on a prohibited
ground is discriminatory in a substantive sense
The Law Test (see cb 827-829 for the full test summary)
Claimant must establish:
1. differential treatment;
2. based on a prohibited ground;
3. that is discriminatory in the sense that a reasonable person in the claimant’s position would conclude that the law
impugns his or her human dignity
Contextual factors
4 factors to be considered in determining whether differential treatment on a prohibited ground is discriminatory:
1) pre-existing disadvantage (member of disadvantaged group; says most important factor, but hasn’t turned
out to be true, but exam emphasize if claimant);
2) lack of correspondence between challenged government policy and the claimant’s needs, capacities and
circumstances (this stage has been most important in jurisprudence, most fail at this stage);
3) absence of an ameliorative purpose or effects;
4) severity of impact on important social interests
Application: Claimant has failed to prove contextual factors #2 and 3
The differential treatment on the basis of age is not discriminatory because:
1. age corresponds to long-term capacity to find income replacement; and
2. the age cut-off has the ameliorative purpose of targeting benefits to more vulnerable older widows
Notes: Impact of the Law test:
“After members of the Court had presented three different approaches to the interpretation of s. 15 in the 1995
trilogy of decisions, the Law ruling signalled a welcome return to a single approach favoured by a unanimous court.
Unanimity, however, appears to have been purchased at some cost to clarity and predictability, and by adding to the
claimant’s burden in establishing a s. 15 violation. Iacobucci J. presented the Law guidelines as simply a summary
of the Andrews test as refined in subsequent jurisprudence. But most commentators agree that Law modified the s.
15 test. Previously, the dominant approach was that a claimant established a violation of s. 15 is she or he could
show differential and disadvantageous treatment based on a prohibited ground of discrimination. After Law, a court
will find such treatment to be discriminatory only if the claimant can also establish that it implicates his or her
human dignity.” (cb 834)
since 1999, equality claimants have faced steep evidentiary burdens and uncertain legal prospects; as if s. 1 issues
brought into s. 15 analysis w/ burden on claimant - low success rate of equality claims compared to claims of other
rights; also means that many disadvantaged groups cannot afford to litigate.
Two main problems:
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1) unpredictability of comparator group (need evidence, but don’t know if right one)
2) difficulty of meeting burden of proving discrimination w/ reference to four contextual factor set out in Law
(Gosselin; CFYCL – dignity stumbling point)
cancellation of Court Challenges Program in fall 2006 (funded s. 15 or minority language claims) LS: very high bar
to get advanced costs against govt
Weatherall v. Canada (AG) (1993)
Facts: Claimant argued allowing male inmates to be frisk searched by female guards was discriminatory, since
female inmates not subject to being searched by male guards.
Decision: when looked at from physiological/historical/social context there is a different social meaning when male
searched by female and vv – effect of cross-gender searching is different and more threatening for women than for
men.
Ratio: Equality does not necessarily connote identical treatment; differential treatment may be called for in certain
cases to promote equality.
The Appropriate Comparator Group
Do this at outset of s. 15 analysis ; from Andrews on, court has said that equality is a comparative concept and by the
time of Law SCC emphasized importance of identifying appropriate comparator group, but ultimately the court
determines whether comparator group is appropriate and tend not to show deference to claimant’s view if they think
claimant got comparison wrong
Choosing the Comparator Group (Hodge; Auton; Wynberg; Hislop)
Hodge (2004) (SCC)
Facts: Challenge to provisions of CPP that deny survivors’ pensions to common law spouses if they were no longer
cohabiting with deceased; married spouses who are separated from their partners are entitled to a survivors’ pension
if they were not divorced at the time of death. Claimant argues discrimination based on marital status (recognized as
analogous ground in Miron).
Purpose of legislation is to give economic security to those who are dependant, after partner dies
claimant: appropriate comparison is between separated common law spouses and separated married spouses
Court: appropriate comparison is between former common law spouses and former married spouses (no such thing
as separated common law spouse b/c common law co-habitation recognized once reached certain statutory period
and stops when co-habitation stops; equivalent of divorced spouses)
Ratio: “The appropriate comparator group is the one which mirrors the characteristics of the claimant (or claimant
group) relevant to the benefit or advantage sought except that the statutory definition includes a personal
characteristic that is offensive to the Charter or omits a personal characteristic in a way that is offensive to the
Charter.” (affirmed in Auton 2004 SCC at para.53)
i.e., a group possessed of all of the relevant characteristics of the claimant group apart from the characteristics that
are the claimed grounds of discrimination
Notes: There could be a preliminary stage in proceedings addressing appropriate comparator group, but difficulty is
that sometimes evidence itself shifts one’s understanding of differential treatment etc, so might not be possible to do
it neatly, but ought to try and nail it down early. May not be possible to do at outset before evidence.
Ryder: should look at whether legislation has result of making common law spouses worse off than married people.
Focus here on terms of legislation and narrow questions leaves many questions outside purview here, even more
obvious in Auton.
Auton (2004) (SCC)
Facts: challenge to failure of BC govt to fund behavioural therapy for autistic children 3-6.
Decision (McLachlin CJ): In a unanimous opinion, gave two reasons for rejecting claim:
“non-core services” not a benefit provided by law;
differential treatment not established
claimants’ comparator groups: non-disabled children or adults with mental illness
Court’s comparator group: non-autistic persons seeking funding for a non-core therapy which is emergent or only
recently becoming recognized as medically required (based on evidence at trial, therapy is controversial)
Ryder:
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More appropriate question to ask (that is not here): whether autistic children being denied funding for treatment that
could best help them integrate into society, does government’s policy contribute to overcoming their social
subordination?
When ct’s comparator group is applied, easy to conclude that no difference in treatment b/c claimant did not bring
any evidence to that effect (b/c thought comparator group was different)  importance of comparator group
If accept claimant’s comparator group, there is a potentially persuasive argument; the problem is that it is only the
appropriate comparator group if s. 15 is conceptualized as imposing intensive positive obligation on State  shows
court’s wariness to interpret s. 15 (and 7) as imposing positive obligations on state
Wynberg (2006) (Ont. CA)
Facts: Challenge to limitation of funding for intensive behavioural intervention for children aged 2-5; claimants are
parents of children aged 6 and over (similar to Auton, but Ont govt had recognized importance of the intensive
behavioural therapy). Discrimination on basis of age
claimants: comparator groups are children 2-5 and able-bodied children over 6
Court accepts comparator group and that there was a difference in treatment on the basis of age, but concluded that
difference in treatment was not discriminatory b/c government relying on evidence that treatment was particularly
effective to very young children and
There is an ameliorative purpose: focusing resources on group that could most benefit
Correspondence b/w age and government’s objective b/c evidence suggested younger children more likely to benefit
from treatment.
Discrimination based on disability:
Able bodied children over 6 receive/access public education, but autistic children cannot w/o intensive therapy
(draws on Eldridge reasoning – access to health care for hearing impaired; failure to provide sign language
interpretation meant do not have equal access to health care system; claim succeeded – adverse effect on hearing
impaired, issued order requiring govt to fund sign language interpreters)
Court: wrong comparator group; right one is other disabled children over age of 6 and claimant failed to produce
evidence showing govt delivers to other school aged disabled children the kinds of assistance that they need, so
claim fails.
Decision: Claim fails third stage.
Note: Ont govt persuaded by publicity generated by litigation to extend coverage.
Hislop (2007) (SCC)
Facts: challenge to limitation of survivor benefits under CPP to persons whose same-sex spouse died after January 1,
1998 (as opposed to date Charter came into force; govt defends arbitrary cut-off by saying that only around that
time did courts decide that sexual orientation was an analogous ground). Followed after M v. H.
government: appropriate comparison is between same-sex survivors whose spouse died before Jan. 1 1998 and
same-sex survivors whose spouse died after that date – difference in treatment is based on date of death, not sexual
orientation
meets Hodge test of exact same group except w/o ground but focus is too narrow on provision; statute as a whole
has always extended benefits to opposite sex couples, whereas this provision only partially extends benefits to same
sex partners; Hislop: doesn’t matter when partner died if opposite sex, but only same sex survivors have limited
entitlement
claimants: appropriate comparison is between same-sex survivors and opposite-sex survivors whose spouses died
before 1998
Decision: Claim succeeds, but remedy limited.
In choosing comparator group, Government is ignoring that legislation never recognized same sex couples, and now
recognition is only partial. Court accepts claimant’s comparator group and concludes it is differential treatment on
basis of analogous ground that violates human dignity.
Adverse Effects (Eldridge; Vriend)
Eldridge v. BC (AG) (1997) (cb 835)
Facts: Three deaf individuals bring an action alleging s.15 rights violated by government’s failure to provide (funds
for) sign language interpretation services for deaf people when they receive medical services, contending it results in
increased risk of misdiagnosis and ineffective treatment. Govt claimed s. 15 does not apply to inaction, even if it
does, it is a neutral inaction – no one has access to interpretive services.
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Recall: Charter applies to hospitals in this context b/c entity carrying out govt objective, so is subject to Charter
review w/ respect to this act (but not all of its acts are subject)
Decision: Infringement of s. 15 not justified. Govt given six months to administer the Act in a way that was
consistent w/ s. 15 rights.
Violation of s. 15:
Example of adverse effects discrimination - not govt inaction, important govt program of delivering health care free
of charge; effect of not providing services is discriminatory b/c means that everyone does not have equal access to
health care system. There is no general right of access to health care, but given that the government has committed
itself to providing universally accessible health care services, it must ensure that they are available in a nondiscriminatory way and for non-government: once you implement a government program you must ensure that it is
accessible w/o discrimination on basis of a prohibited ground.
Court dismisses govt claim that decision will force govt to spend $ on resources for disadvantaged groups 
decision only forces the government to ensure equally access to a benefit it has already chosen to confer
Section 1 Analysis:
fails minimal impairment test – relatively insignificant amount of money vs. importance of accessible medical
services - fails even under deferential application of Oakes, but ct refuses to decide whether a strict or deferential
Oakes test will be employed in a “social benefits” context, where government is balancing needs of disadvantaged
minority w/ general pop.
-dismisses govt slippery slope argument (that this will create other claims on govt resources by groups seeking
interpretation such as immigrants) – such claims will proceed on different Charter grounds b/c different factual
situation (they can learn an official language) and outcomes cannot be predicted; possibility is not enough to justify
infringement of rights of deaf
Ratio: Once the government undertakes to provide a service, it is obliged to do so in a non-discriminatory way, even
if that means it must take positive action to ensure that disadvantaged groups are equally able to access the benefit it
has chosen to confer. A law that is neutral on its face must be examined w/ reference to its impact – if it has a more
burdensome impact on a group on basis of a prohibited ground there is discriminatory treatment (still have to go to
stage 3 – may not offend dignity).
Vriend v. Alberta (1998) (adverse effects) (cb 841)
Facts: V dismissed from job when revealed he was gay, tries to bring action under Alberta HR Code, unable b/c
statute (deliberately) omitted sexual orientation as a prohibited ground of discrimination. Seeks declaration that
omission of sexual orientation from Alberta’s HR code violates s.15. Govt argues not discriminatory b/c nobody
including heterosexuals can bring claim on that basis – law is neutral.
Decision: Charter applies to govt omission. Omission of sex orientation constitutes an infringement of s. 15, not
justified 1. Sexual orientation read in as a prohibited ground in the Alta HR code – effective immediately.
group that most needs protection on basis of sexual orientation is sexual minorities, not hetero majority, so even
though the law is neutral on its face, it is not neutral in its impact – it has adverse effects on a particular group
s. 1 analysis: where a law has been found to violate Charter by under-inclusion, objective of legislation as a whole,
impugned provision and the omission itself must all be considered
omission: govt did not put forward any objective, so omission fails first step
overall purpose of act is to protect against discrimination, so omission is not rationally connected to objective of
legislation
deferential Oakes test not required b/c once state confers a benefit, it must ensure the benefit is conferred equally
Ratio: An omission/law may be neutral on its face, but not in its effects and that constitutes discrimination.
Notes:
Question of adverse effects discrimination closely tied to question of whether s. 15 can be violated by government
inaction
Charter applies to cases where govt acts but in an under-inclusive manner by omitting certain groups
Thus, sometimes result of s. 15 claims is to extend scope of government’s action to those who have been excluded in
discriminatory way
Ct declines to answer whether Charter can be applied to failure to act at all by government – jurisprudence thus far
suggests it cannot; only when govt acts in discriminatory way (remember – adverse effects may not be seen on face
of law)
Corbiere v. Canada (1999) (SCC) (cb 851)
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Facts: s. 77(1) of the Indian Act required band members to be “ordinary residents” on their reserve in order to vote
in band elections.
Decision/Ratio: “aboriginality-residence” is found to be analogous to the enumerated grounds. The case involves a
spilt in the court on the issue of what criteria to use when identifying if a ground of distinction is analogous.
McLachlin and Bast. (+3) argue against a “contextual” and “purposive” approach to the search for analogous
grounds, and advocate an approach based on similar characteristics (the grounds have the characteristics of being
immutable or changeable only at great personal cost) (cb 853). L’H-D (+3) argues for a contextual approach to the
inquiry (cb 854). Unanimous court finds s. 15(1) violation and cannot justify under s. 1 (minimal impairment).
McLachlin’s approach has since become the law (Lavoie, para. 2), so that now once a ground is found to be
analogous, it is permanently enrolled as analogous for other cases.
M v. H (1999) (SCC) (cb 857)
Facts: Challenge to exclusion of same-sex spouses from right to claim support on the breakdown of a common law
relationship. Economically vulnerable party wanted to get spousal support order against former partner; FLA
defines spouse as hetero marriage/co-habitation - difference in treatment on a prohibited ground - is it
discriminatory?
Decision: Cory and Iacobucci for 6 members of 8-1 majority: Violates s. 15 and not saved under s. 1; Strike down
defn. of spouse in FLA - clear that is treated same sex couples differently on basis of analogous ground (already
recognized in 1995 Egan case as analogous ground)
1. history: disadvantaged; 2. no correspondence 3. no ameliorative purpose; 4. important interest at stake – financial
security at breakdown of relationship.
comparator group: unmarried same sex and unmarried hetero – careful to say not talking about marriage; about
easy to see that common law definition of marriage vulnerable to Charter challenege, and that is what courts have
concluded – most significant Halpern Ont. CA – legalization of same sex marriage.
Is it discriminatory: goes through four contextual factors, quickly conclude that all lean in favour of affirmative
answer. Human dignity of claimants is violated, so s. 15 infringement.
Gonthier’s characterization of purpose of legislation is not persuasive b/c right to claim for spousal support available
to men and women; plus only rt to claim, still must prove; plus same sex relationships are taken as functionally
equivalent to hetero relations – the same needs and circs can arise - same reasoning led to the conclusion that the
common law definition of marriage violated s.15 of the Charter: see Halpern 2003 Ont CA; Civil Marriage Act
2005
Section 1: remember, objective of omission must be taken into account when construing objective of legislation as
whole b/c it may reveal an intent by govt to balance competing interests. Objective of legislation is to provide for
equitable resolution of economic disputes that arise when dependant relationships break down; objective of
provision is to accomplish that goal by shifting obligation of support from public purse unto spouse w/ capacity to
do so – no rational connection b/c omission does not rationally further objective  follows from characterization of
objective. Also fails minimal impairment b/c reasonable alternative remedy.
Dissent (Gonthier): no discrimination because the difference in treatment is based on a relevant difference - social
facts, not stereotypes; it corresponds to the different dynamics of dependence in opposite-sex and same-sex conjugal
relationships; lesbian relationships are characterized by a “high degree of equality”. B/c of that difference,
concludes based on correspondence factor, that no discrimination.
Notes: Importance of characterization of purpose at analysis of contextual factors.
Gonthier can say not discriminatory only b/c he frames objective as protecting women after dissolution of
interdependent relationships.
Gosselin (2002) (SCC) (supp. 95)
Facts: differential treatment on the basis of age in Quebec social assistance legislation. Discrimination: on basis of
poverty/economic disadvantage and age. Focus is on age b/c scheme provided less benefits to those under 30 than
those over 30.
Decision: 5-4 ruling finds that it is not discriminatory
Majority (McLachlin): there is a difference in treatment - four contextual factors: no pre-existing disadvantage; no
lack of correspondence – age does correspond to relevant needs, capacities etc – young ppl are better able to achieve
financial support/dependence than older recipients; accepts arguments of Quebec govt that scheme is meant to help
young ppl by discouraging welfare dependency  no violation of human dignity
(Ryder: remarkable conclusions when consider nature of group, but she says relevant comparator group is social
assistance recipients over 30 – all are vulnerable etc, but under 30 is not more so than over 30)
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Dissent (Bast. J.): difference in treatment rested on stereotypical assumptions about young welfare recipients rather
than their actual needs, capacities or circumstances; no ameliorative purpose; and had a profound impact on their
physical and psychological security
proposed remedy: no damages; would have declared legislation invalid and suspended its effect for 18 months (but
legislation had already been changed).
So even if claimants had succeeded, it would have been only a symbolic win, w/ no real change for claimants
Note: in this situation, advise claimant chance of success is not high, but jurisprudence suggest there may be a
chance of success; not likely to get retroactive award of damages (class action). NB: didn’t try to challenge on
analogous ground of poverty.
R v. Banks (2007) (SCC)
Facts: challenge to provisions of Safe Streets Act that prohibit soliciting on roadways, based on division of powers
and violation of s.7 and 15 – discrimination on basis of extreme poverty. Argue that there is evidence of differential
treatment in adverse effects.
1. discrimination in administration against homeless/poor and 2. even if administered even-handedly, much more
severe impact on those who face extreme poverty, their economic security is threatened in very serious way.
Decision: Ont CA dismissed claim – no stage of Law analysis met by claimants.
no difference in treatment (adverse effects) established
neutral on its face, evidence of adverse effects not strong enough
no prohibited ground
extreme poverty is not an analogous ground (in Falkner, Ont. CA did recognize receipt of social assistance as
analogous ground)
no discrimination
no violation of human dignity from perspective of reasonable person in claimant’s shoes b/c they are free to go
elsewhere – only applies to roadway so could solicit in other contexts
Note: Courts say here and in Gosselin that evidence frail. One of the reasons making adverse effects argument is
difficult – need strong social science evidence.
CFCYL (2004) (SCC)
Facts: challenge based on s. 7 and 15 (see s.7 earlier).
Decision: s.43 of the Criminal Code upheld in 6-3 ruling.
imposes differential treatment on the basis of age (prohibited ground); so the question is whether the differential
treatment constitutes discrimination
Majority (McLachlin): no violation of human dignity even though three of the contextual factors lean in that
direction (1. disadvantaged group, vulnerable to abuse; 3. no ameliorative purpose; 4. physical security is a
fundamental interest)
Note: comparator group: adults
correspondence factor is determinative: s.43 “responds to the reality of [children’s] lives by addressing their need for
safety and security in an age-appropriate manner.”
Age is relevant to physical corrective discipline (as long as force is reasonable)
Dissent
Arbour: did not address s.15, b/c found violation of s. 7
Binnie: s.15 violated; accused majority of importing s. 1 analysis into s.15; he found that s.43 is justified under s. 1
as far as parents are concerned (preserve family harmony), but not teachers
Deschamps: s.15 violated; s.43 cannot be upheld pursuant to s.1, does not minimally impair children’s equality
rights and its negative effects are disproportionate
Note: recent challenge to marijuana provisions (Malmo-Levine) violates s. 15 (s.7 argument based on harm principle
as POFJ – rejected); s. 15 difficult establishing differential treatment on prohibited ground (fundamental personal
life choice – not analogous ground, not immutable).
Lovelace v. Ontario (2000) (SCC) (cb 867)
Facts: Govt negotiates to shares profits of Casino Rama w/ status Indians in the province. Claim brought by Metis
and other non status aboriginal groups arguing just as disadvantaged (if not more so) than Indian bands w/ status
under Indian Act, purpose of shared profits was to address disadvantage, but underinclusive ameliorative program.
Decision: 7-0 uphold sharing of Casino Rama profits with bands, but not other Ab. ppls Comparator group: band
and non-band Aboriginal communities - so differential treatment is clearly established b/w comparator groups
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is difference in treatment on the basis of a prohibited ground?: not necessary to decide
Corbiere: Ab residence analogous ground; presumably would have reached same conclusion, not necessary to
decide b/c difference in treatment not discriminatory .
not discriminatory, b/c contextual factors 2, 3: casino project corresponds to needs, circumstances and capacities of
the bands (have established pol/soc structure and land base that other Ab communities do not have, idea was to place
casino on reserve so there was a correspondence); and b/c it is a targeted ameliorative program and govt is entitled
to target a program at a particular group as long as group is as disadvantaged or more disadvantaged than those not
included. H. dignity of claimants not violated.
Ratio: a targeted ameliorative program that is under inclusive is less likely to infringe s. 15 rights than universal
program b/c it does not stigmatize or stereotype other disadvantaged groups in same way it would if it was a general
program aimed at all disadvantaged groups but excluded a specific group.
Notes:
affirms the view, implicit in the Law case, that s.15(2) is illustrative of, not exceptional to, s.15(1); no need for a
separate s.15(2) stage of analysis
s. 15 jurisprudence does not hinder govt from addressing needs of certain disadvantaged groups first. 15(2)
understood as part of holistic reading of s. 15 as a whole/it is an interpretive principle that informs the meaning of
equality in s.15 as a whole, and does not act as an exception to 15(1); 3rd contextual factor dovetails w/ 15(2)
Distinction b/w targeted ameliorative programs (where exclusion of others as disadvantaged will not necessarily
amount to discrimination) vs. universal program (conclusion will likely be that exclusion of disadvantaged group is
discriminatory – Eldridge; Vriend)
R. v. Kapp (2008) (SCC) (supp. 111)
Facts: non-aboriginal commercial fishers asserted that their s. 15 rights violated when gov’t granted communal
fishing license to members of 3 aboriginal bands giving them an exclusive right to fish for salmon in the mouth of
the Fraser river for a period of 24 hours.
Decision: appeal is dismissed because there is no s. 15 violation.
Ratio: This case changed the previous understanding of how s. 15(2) affected the equality analysis. In Lovelace,
Iacobucci J. presented a view a s. 15(2) as an interpretive aid to s. 15(1), arguing that treating 15(2) as a defense for
the government is inconsistent with the overall structure of the Charter given s. 1 (see cb 873). In this case,
McLachin and Abella, speaking for the full court, endorse a “third option” (15(2) neither an interpretive aid nor an
exemption), whereby once a claimant has shown a distinction made on an enumerated or analogous grounds, the
government can show that the impugned law is ameliorative and, thus, constitutional (see supp. 116). “A program
does not violate that s. 15 equality guarantee if the government can demonstrate that: (1) the program has an
ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or
analogous grouds.” (para. 41)
Aboriginal Peoples and the Constitution
I. Division of Powers
1. Federal Jurisdiction
Section 91(24) assigns federal Parliament exclusive jurisdiction to pass laws in relation to the subject matters of
"Indians, and lands reserved for the Indians".
The word "Indians" is not defined in the 1867 Act (contrast s.35(2) of the CA1982: "'aboriginal peoples of Canada'
includes the Indian, Inuit and Métis peoples of Canada"). In Re Eskimos 1939 SCC, the Court held that Inuit people
fall within the scope of federal power in relation to "Indians" in s.91(24). Duff J. found that the word "Indian" in
mid-19th century usage meant all of the Aboriginal peoples of British North America. The Charlottetown Accord
would have added a new s.91A providing that "For greater certainty, class 24 of section 91 applies... in relation to all
the Aboriginal peoples of Canada." The courts would undoubtedly reach this result anyway.
Under the first branch of s.91(24), Parliament has authority to make any law that in pith and substance is in relation
to Aboriginal people. That is, Parliament can pass laws that treat native people differently from non-native people:
s.91(24) authorizes a distinct federal regime of Indian law. It appears that federal laws passed in relation to
Aboriginal peoples can deal with matters that would otherwise be within provincial legislative competence, as long
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as they are related to "intelligible Indian policies" (Hogg chapter 27.1.b). "Parliament has taken the broad view that
it may legislate for Indians on matters which otherwise lie outside its legislative competence, and on which it could
not legislate for non-Indians." (Hogg ibid.) Many provisions of the federal Indian Act deal with what would
ordinarily be considered provincial subject matters pursuant to s.92 or s.93, including possessory rights in land, wills
and succession, sale of produce, maintenance of roads and bridges, and schools.
The second branch of federal power under s.91(24), "lands reserved for the Indians", includes all lands set aside as
reserves, as well as the land recognized by the Royal Proclamation of 1763 as "reserved" for the Indians, that is,
used and occupied by Aboriginal peoples and held pursuant to Aboriginal title (i.e., the Aboriginal title has not been
ceded to the Crown or extinguished by federal legislation prior to 1982). See Delgamuukw 1997 SCC. Note that
legislative jurisdiction in relation to lands is distinct from ownership: underlying Crown title in Indian lands,
assumed in the case law, belongs to the Crown in right of the province (St. Catherine's Milling 1889 PC; Guerin
1985 SCC; Delgamuukw).
At the same time, under heads of federal power other than s.91(24), the federal government has jurisdiction to pass
legislation that can validly apply to Aboriginal people (if, of course, the law is in pith and substance in relation to a
federal subject matter). Thus, under s.91 heads of power other than s.91(24), the federal government can pass laws
that ignore native difference by treating Aboriginal people the same as other Canadians, and such laws can validly
apply to Aboriginal persons and on Aboriginal lands: see, e.g., R. v. Derricksan 1976 SCC (Fisheries Act, a valid
exercise of federal power pursuant to s.91(12), can apply to restrict Aboriginal fishing rights).
Prior to 1982, federal legislation prevailed over inconsistent Aboriginal rights. The same was true of rights set out in
treaties: in the case of a conflict between a treaty right and federal legislation, the legislation would prevail: R. v.
Sikyea 1964 SCC; R. v. George 1966 SCC. This situation has now been changed by s.35, at least so far as
unextinguished Aboriginal and treaty rights are concerned -- those rights will prevail over inconsistent federal or
provincial legislation unless the government can meet the justificatory standard set out in Sparrow 1990, Gladstone
1996, and Delgamuukw 1997, described below.
2. Provincial Jurisdiction
Generally speaking, the Courts have held that Aboriginal peoples and lands are "double aspect" matters; that is,
there is a large area of overlap or concurrency of federal and provincial powers in this area. As Aboriginal scholar
Leroy Little Bear has put it, native people have been "legally surrounded" under the division of powers, since they
must contend with the application of federal and provincial laws of general application, as well as the distinct regime
of federal Indian law.
The courts use the pith and substance, necessarily incidental, interjurisdictional immunity and paramountcy
doctrines to determine the extent to which provincial laws may impact on Aboriginal peoples and lands.
Pith and substance doctrine: Provincial laws that are in pith and substance in relation to "Indians" or "lands
reserved for the Indians" are ultra vires. Thus, provinces lack the capacity to pass laws that are in pith and substance
in relation to Aboriginal peoples or Aboriginal rights, including Aboriginal title: see Delgamuukw 1997 SCC
(holding that once B.C. entered Confederation in 1871, it lacked jurisdiction to pass laws extinguishing Aboriginal
title in the province).
This result is not altered by s.88 of the Indian Act, because laws that are in pith and substance in relation to s.91(24)
matters do not qualify as "laws of general application" for the purposes of s.88.
The pith and substance doctrine does not prevent provinces from passing laws that contain provisions directly
addressing the interests of Aboriginal people or that have an impact on Aboriginal interests. It depends on whether
the singling out of Aboriginal people or the impact on Aboriginal people’s interests is the dominant characteristic of
the law or merely "incidental". See, e.g., Kitkatla Band v. B.C. 2002 SCC, upholding provisions of the B.C.
Heritage Conservation Act as in pith and substance in relation to “property and civil rights” notwithstanding the fact
that the challenged provisions dealt specifically with the preservation of Aboriginal cultural artifacts.
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Necessarily incidental doctrine: Provisions of provincial laws, even if they appear to be ultra vires when looked at
in isolation (because they are in relation to Aboriginal peoples or Aboriginal lands), may be valid if they are
sufficiently well-integrated into a legislative scheme that is in pith and substance in relation to a provincial subjectmatter. Kitkatla Band v. B.C. 2002 SCC.
Interjurisdictional immunity doctrine: Provincial laws cannot touch matters at the core of federal jurisdiction
under s.91(24), that is, matters at the heart of Aboriginal identity or Aboriginal peoples' relationship to their land.
The SCC has variously characterized this immunity as requiring otherwise valid provincial laws to be restricted in
their application ("read down") to prevent them from "impairing the status and capacity" of Indians, regulating
"Indians qua Indians", touching matters that are "inherently Indian", "at the core of Indianness" or "are closely
related to the Indian way of life".
The i.i. doctrine operates with respect to both branches of s.91(24):
(i) Indian lands: the SCC has repeatedly rejected an "enclave theory" of Indian reserves and lands; thus, provincial
hunting laws, adoption laws, labour laws, and motor vehicle laws, to name a few, have been held applicable on
reserves: Cardinal 1974 SCC; Four B 1980 SCC. However, provincial laws cannot affect the right to possession of
land on a reserve (Derrickson 1986 SCC), nor does a province have the power to apply legislation that would have
an impact on Aboriginal title or Aboriginal rights: Delgamuukw 1997 SCC ("the core of Indianness encompasses
the whole range of aboriginal rights that are protected by s.35(1)" including “rights in relation to land.”); Tsilqot’in
Nation v. B.C. 2007 BCSC at paras.1001-1049.
(ii) Indians: In the 1970s and 1980s the SCC was most comfortable employing this branch of the i.i. doctrine to
prevent provincial interference with the legal attributes of Indian status as defined by the Indian Act. See, e.g., Four
B 1980 SCC (labour legislation can apply to aboriginal business on reserve); Natural Parents 1975 SCC (adoption
law can apply so long as adopted child not deprived of Indian status). Recently, the Court has indicated that the ii
doctrine goes further and also embraces a cultural understanding of, or Aboriginal perspective upon, matters at the
heart of federal jurisdiction pursuant to s.91(24): see Dick 1985 SCC. On this view, provincial laws cannot apply to
Aboriginal people with respect to matters "at the centre of what they do and who they are." Since Aboriginal rights
are defined as embracing practices and activities that "are integral to the distinctive Aboriginal culture", it follows
that they are "part of the core of Indianness at the heart of s.91(24)", and thus immune from the application of
provincial laws: see Delgamuukw 1997 SCC. Should the regulation of other matters of Aboriginal cultural
significance, like the preservation of heritage objects, be a matter beyond the reach of provincial laws? See Kitkatla
Band v. B.C. 2002 SCC, at paras.70-71, where the Court was open to such an argument but found the evidence in
that case insufficient to support it.
Section 88 of the Indian Act: However, even if a law has to be read down pursuant to the i.i. doctrine, it may still be
a "law of general application" made applicable to aboriginal people in the province by s.88. Such a provincial law
can apply to Aboriginal people if it does not conflict with a treaty, the Indian Act, or any other federal legislation,
and if it does not overlap with the subject matter of the Indian Act. This is because in Dick 1985 SCC, Beetz J.
stated that a law only ceases to be one "of general application" for the purposes of s.88 when there is evidence that
the legislative policy or intent was to "impair the status and capacities of Indians" or to "single out Indians for
special treatment". Counter-intuitively, he argued that the reference in s.88 to laws of general application was meant
to include only those laws "which cannot apply to Indians without [having the effect of] regulating them qua
Indians". That is, s.88 renders applicable valid provincial laws of general application that would otherwise have to
be "read down" pursuant to the i.i. doctrine because of their impact on matters that are vital to federal jurisdiction in
relation to Aboriginal peoples or lands. (Delgamuukw 1997 SCC).
Note that, because of the effect of the opening language of s.88 of the Indian Act, treaty rights prevail over all
provincial legislation that interferes with treaty rights in a non-trivial way (thus leaving s.35 with no work to do in
the protection of treaty rights from inconsistent provincial laws). For example, in Morris 2006 SCC, two Aboriginal
men were charged with hunting at night with the assistance of illuminating devices in violation of the B.C. Wildlife
Act. The majority of the Court found that the accused were exercising a treaty right to hunt. Provincial laws of
general application may regulate the exercise of treaty rights if they impose insignificant burdens (like modest
licensing fees). But where provincial laws constitute prima facie infringements of treaty rights, as the provisions of
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the Wildlife Act at issue in Morris did, they cannot apply of their own force and they cannot be incorporated into
federal law pursuant to s. 88 of the Indian Act.
Paramountcy doctrine: Provincial laws will be rendered inoperative in the case of an express conflict with federal
law (see Francis v. The Queen 1988 SCC), or if they displace the purpose underlying a federal legislative scheme
(B. of M. v. Hall 1990 SCC; Rothmans 2005 SCC). In addition, section 88 of the Indian Act prevents provincial laws
of general application from applying to “Indians in the province” if they overlap with subjects covered by the Indian
Act (i.e. s.88 puts in place a broader "covering the field" test for paramountcy with respect to matters "for which
provision is made by or under" the Indian Act).
II. Section 35 of the Constitution Act, 1982
Section 35 recognizes and affirms the existing Aboriginal and treaty rights of the aboriginal peoples of Canada.
These rights now have explicit constitutional protection that they lacked prior to 1982.
Aboriginal Rights: These are a unique, sui generis package of rights held by aboriginal peoples by virtue of their
historic relationship to the land and the fact that "they were once independent, self-governing entities" (Slattery).
Aboriginal rights are directed at preserving Aboriginal cultural integrity: “the object is to provide cultural security
and continuity” to particular Aboriginal societies. Sappier; Gray 2006 SCC at para.33. According to the SCC in Van
der Peet 1996, "the aboriginal rights recognized and affirmed by s. 35(1) are best understood as, first, the means by
which the Constitution recognizes the fact that prior to the arrival of Europeans in North America the land was
already occupied by distinctive aboriginal societies, and as, second, the means by which that prior occupation is
reconciled with the assertion of Crown sovereignty over Canadian territory. The content of aboriginal rights must be
directed at fulfilling both of these purposes." (para.43)
In the Van der Peet case, the SCC set out a general test for determining the content of Aboriginal rights: an activity
will be an Aboriginal right if it is "an element of a practice, custom or tradition integral to the distinctive culture of
the aboriginal group claiming the right." (para. 46). "Integral" means a "crucial element", "a central and significant
part", or "a defining feature" of the culture; without it, "the culture in question would be fundamentally altered or
other than what it is." (para. 59)
To qualify as an Aboriginal right, it is not necessary to establish that a practice went to the “core” of an Aboriginal
people’s identity or culture. Nor should culture be interpreted as a fixed museum-like inventory of traits and
characteristics. Aboriginality must not be reduced to racialized stereotypes of Aboriginal peoples. The “integral to a
distinctive Aboriginal culture” test must be a flexible inquiry into the pre-contact way of life of an Aboriginal
people: “What is meant by culture is really an inquiry into the pre-contact way of life of a particular Aboriginal
community, including their means of survival, their socialization methods, their legal systems, and, potentially, their
trading habits.” Sappier; Gray 2006 SCC at para. 45.
According to Lamer C.J. in Van der Peet, the purpose of s.35 is not to protect the defining features of contemporary
Aboriginal societies; rather, the goal is to locate those activities which were integral to Aboriginal cultures prior to
contact with European settlers. Only contemporary practices, customs and traditions that have continuity with the
integral aspects or defining features of pre-contact Aboriginal societies can qualify for protection as s.35 Aboriginal
rights. Contemporary practices, customs or traditions that arose "solely as a response to European influences" do not
qualify. (para. 73)
The relevant time period for determining whether a practice is “integral to a distinctive Aboriginal culture” is the
period immediately prior to contact with European settlers: Van der Peet, para.60-61. In the case of Métis peoples,
the relevant time is the period before Europeans achieved political and legal control of an area: Powley 2003 SCC.
In Van der Peet, the Court concluded that the exchange of salmon for money or other goods by the Sto:lo people
prior to contact was "incidental" to fishing for food purposes; it was not an integral part of Sto:lo culture. The
Aboriginal claim failed for similar reasons in the companion case of N.T.C. Smokehouse 1996 SCC: the exchange of
fish for money or other goods occurred rarely in Sheshaht and Opetchesaht culture prior to contact and therefore
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could not qualify as an Aboriginal right. In the second companion case to Van der Peet, Gladstone 1996 SCC, the
sale of herring spawn on kelp was found to be an Aboriginal right of the accused, since it was integral to the culture
of the Heiltsuk prior to contact.
In the SCC's first s.35 decision, Sparrow, 1990, the Court accepted the trial judge's finding that the appellant "was
fishing in ancient tribal territory where his ancestors had fished from time immemorial in that part of the mouth of
the Fraser River for salmon". Since this activity was "an integral part" of the Musqueam's "distinctive culture",
Sparrow was found to be exercising an Aboriginal right. This right included the right to fish for food, social and
ceremonial purposes, and to do so "in a contemporary manner".
In Pamajewon, 1996 SCC, the Court rejected a claim by the Shawanaga and Eagle Lake First Nations to operate and
regulate gambling activities on their reserves without complying with the licensing provisions of the Criminal Code.
The claimants took the position that the rights claimed were part of their broader rights to self-government and to
manage economic development in their communities. Lamer C.J. was willing to "assume without deciding that
s.35(1) includes self-government claims". However, in his view, the evidence did not establish that gambling, or the
regulation of gambling, was an integral part of the distinctive cultures of the Aboriginal claimants. Informal
gambling activities took place on a small scale prior to contact, but the Court found that there was no historical
equivalent of the "large scale", "twentieth century phenomena" at issue in this appeal. As John Borrows has
observed in his discussion of Pamajewon, "not many activities in any society, prior to this century, took place on a
twentieth-century scale... What would it be like for Canadians to have their fundamental rights defined by what was
integral to European peoples' distinctive culture prior to their arrival in North America?" (see (1997) 8(2)
Constitutional Forum at 30).
In four other cases decided by the SCC since Van der Peet, the Aboriginal claimants have succeeded in establishing
that the activity in question had continuity with a pre-contact practice that was integral to their distinctive culture:
see Côté 1996 SCC (fishing for food a significant part of Algonquin culture since at least the time of contact in
1603); Adams 1996 SCC (fishing for food a significant part of the life of the Mohawks since at least the time of
contact in 1603); Powley 2003 SCC (hunting for food integral to the distinct Métis way of life at Sault Ste. Marie
prior to effective European control around 1850); Sappier; Gray 2006 SCC (harvesting of wood for domestic
purposes a traditional means of survival for the Maliseet and Mi’kmaq peoples, and thus was integral to their
distinctive Aboriginal cultures). The Aboriginal claim failed in Mitchell 2001 SCC (evidence does not establish that
transporting goods across the St. Lawrence River for the purposes of trade integral to Mohawk ancestral culture)
Aboriginal Title: Where Aboriginal people had a relationship of exclusive use and possession in relation to a
particular territory prior to the assertion of sovereignty, and continuity of occupation can be demonstrated, then
Aboriginal title over that territory will be one component of the broader conception of Aboriginal rights they may
claim. Aboriginal title refers to the sui generis "personal and usufructuary right" held by native people with respect
to unsurrendered lands, recognized by the Royal Proclamation of 1763 and British imperial policy. Guerin 1984
SCC. It is a right of exclusive use and possession subject to surrender by treaty or, prior to 1982, to extinguishment
by the Crown if a clear and plain intention to do so was manifest. Aboriginal title is understood as a burden or
overlay on underlying title or ownership of land in fee simple. It is a communal right that finds its source in the prior
occupation of Canada by Aboriginal peoples. See Delgamuukw 1997. The Court indicated that Aboriginal peoples
may choose to use their title for a variety of purposes -- not just for the exercise of other Aboriginal rights. The only
limit on the use of lands and resources is that they cannot be used in ways that are inconsistent with use and
enjoyment by future generations. Ibid.
To prove existing Aboriginal title, the Aboriginal claimants must establish exclusive use and occupation at the time
prior to the assertion of sovereignty by the Crown (an “intention and capacity to retain exclusive control”:
Delgamuukw at para.156) and a substantial connection between contemporary and historical use and occupation of
specific tracts of land. These requirements may make it difficult for nomadic and semi-nomadic Aboriginal peoples
to succeed in claims of Aboriginal title. For example, in rejecting a claim to Aboriginal title by members of the
Maliseet and Mi’kmaq nations in Bernard; Marshall 2006, the SCC stated (at para. 58) that “exploiting the land,
rivers or seaside for hunting, fishing or other resources may translate into aboriginal title to the land if the activity
was sufficiently regular and exclusive to comport with title at common law. However, more typically, seasonal
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hunting and fishing rights exercised in a particular area will translate… not to aboriginal title, but to aboriginal
hunting and fishing rights”.
The courts have held that the provincial Crown has ownership of the underlying title in unsurrendered and
unconveyed land: see St. Catherine's Milling 1889 PC. How the Crown obtained ownership, or even sovereignty,
over Aboriginal lands has never been adequately explained in the case law. According to the common law,
sovereignty and ownership of land can be obtained by 1) conquest; 2) cession; or 3) discovery. Ultimately, the
legitimacy of British, and later Canadian, sovereignty over much of Canadian soil rests on (3), the doctrine of
discovery. This common law doctrine is supposed to be limited in its application to unoccupied territories. However,
in centuries past, the common law considered aboriginal people neither sufficiently Christian nor sufficiently
civilized to qualify as occupants. Canadian courts have perpetuated the racist "English fiction that all lands in the
realms were originally possessed, and accordingly owned, by the Crown" (McNeil). Yet the common law of
property has not completely ignored Aboriginal interests in land; the British common law has had to adapt to
accommodate Aboriginal existences in North America, Australia and elsewhere. Hence, the common law notion of
Aboriginal title, now constitutionalized by s.35 of the Constitution Act, 1982.
Self-Government: Also included in Aboriginal rights are elements of self-government, customary law, and cultural
or spiritual practices. The courts have not yet held that aboriginal rights protect a measure of self-government, that
is, that they include a positive conferral of jurisdiction on Aboriginal nations (the successful s.35 cases all confer
negative rights, i.e., protection from interference with traditional activities by non-Aboriginal governments). As
noted above, the SCC left the issue open in Pamajewon 1996. In Delgamuukw 1997, the Court indicated that it is not
willing to consider the issue defined in "excessively general terms" and remitted the question to trial. The B.C.C.A.
had split on the question of whether aboriginal peoples in B.C. have an existing Aboriginal right of self-government:
Delgamuukw v. B.C. (1993), 104 D.L.R. (4th) 470 (B.C.C.A.). If one accepts, as the Court did, that the Gitksan and
Wet'suwet'en peoples had an organized society at the time of the assertion of British sovereignty, the conclusion
seems inescapable that a right of self-government was an "integral part of their distinctive culture". Without
contradicting this point, the majority was of the view that any rights of self-government were extinguished by the
acquisition of British sovereignty over the mainland colony by the Oregon Boundary Treaty of 1846, the
establishment of the colony of B.C. in 1858, or the coming into force of the exhaustive division of powers set out in
the Constitution Act, 1867 upon B.C.'s entry into Confederation in 1871. In contrast, the Royal Commission on
Aboriginal Peoples concluded that Aboriginal rights of self-government survived the assertion of British and later
Canadian sovereignty (see Partners in Confederation 1993). See also Campbell 2000 BCSC (Nisga’a right of selfgovernment never extinguished by the clear and plain intention of the Crown).
Treaty Rights: Section 35 protects the contents of solemnly entered agreements between Aboriginal nations and the
Crown, if they were intended to create legally binding obligations. Over 500 such treaties exist. For a map of the
territory covered by some of the most important treaties, click here, and for the text of some of these treaties, click
here.
The courts have developed "special interpretive principles to respect the ancient origins and cross-cultural context in
which the first treaties were negotiated." Treaty rights are given a large and liberal interpretation; doubt is to be
resolved in favour of the Aboriginal signatories; and an effort must be made by courts to define treaties and interpret
their contents in a manner that is sensitive to Aboriginal understandings and to the "honour of the Crown". It is the
"common intention" of the parties that must be ascertained. See Marshall 1999 SCC. The text of a treaty is only one
guide, and, with regard to older treaties, may record only the understandings of representatives of the Crown. The
historical context and evidence of Aboriginal understandings must also be examined, and may give rise to "implied
rights" not expressly mentioned in the treaty (Marshall 1999). Thus, for example, in Marshall 1999 the Court found
that a clause of a 1760 treaty in which the Mi’kmaq agreed to trade their commodities only at British “truckhouses”
was, in the common intention of the parties, a guarantee that the Mi’kmaq could engage in hunting and fishing, and
trade the products of those activities with the British for the purposes of obtaining a moderate livelihood. The Court
found that the treaty right extended to fishing for eels in Marshall 1999. The Court later held that the treaty right did
not include the right to harvest or trade logs, because trading in logs was not a traditional trading activity
contemplated by the common intention of the parties in 1760-1: Marshall; Bernard 2005 SCC.
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Note that the treaty rights protected by s.35(1) include, according to s.35(3), "rights that now exist by way of land
claims agreements or may be so acquired." Thus, as new treaties are entered into between the Crown and Aboriginal
nations, the scope of the treaty rights entrenched pursuant to s.35(1) expands. In this way, the Nisga'a people's rights
of self-government are now set out in a treaty (the Nisga'a Final Agreement) and became constitutionally entrenched
in that form. Entrenching self-government rights in this way was challenged by Gordon Campbell, prior to his
election as Premier of B.C., as an invalid attempt at constitutional amendment. His action was dismissed and the
validity of the Nisga'a treaty affirmed: see Campbell 2000 BCSC.
"Existing" Rights: The SCC in Sparrow rejected the view that the word "existing" means that the rights protected by
s.35 exist now only to the degree that they were unregulated in 1982. Instead, the Court said existing means
"unextinguished". Rights that were extinguished prior to 1982, either by surrender (i.e., by treaty), by federal
legislation, or by constitutional amendment, are not resuscitated by s.35. They are not existing rights. However, if an
aboriginal or treaty right was not extinguished prior to 1982, then the entire right, in its pure unregulated form, is
existing for the purposes of s.35. The Crown has the burden of proving, on the balance of probabilities, that it
demonstrated a "clear and plain intention" to extinguish rights and that it did in fact do so. The SCC in Sparrow held
that extensive and progressively more restrictive regulation of fishing rights by the Fisheries Act, its regulations and
licenses issued under its authority, did not amount to extinguishment . See, to the same effect, Sappier; Gray 2006
SCC at paras.57-61.
The Court has made clear that non-recognition of aboriginal rights by colonial governments is not the equivalent of
extinguishment. The Quebec government argued, in the Adams (1996) and Côté (1996) cases, that Aboriginal rights
did not exist within the boundaries of the former colony of New France, since that colony, it was argued, never
recognized the existence of Aboriginal title or other Aboriginal rights. Lamer C.J. rejected this argument: "Section
35(1) would fail to achieve its noble purpose of preserving the integral and defining features of distinctive aboriginal
societies if it only protected those defining features which were fortunate enough to have received the legal
recognition and approval of European colonizers. I should stress that the French Regime's failure to recognize
legally a specific aboriginal practice, custom or tradition clearly cannot be equated with a "clear and plain" intention
to extinguish such practices under the extinguishment test of s. 35(1)." If, however, rights were extinguished prior to
1982, even if they were extinguished unilaterally without consulting aboriginal peoples, then they are not
resuscitated by s.35. Lamer C.J.'s analysis raises an obvious question: isn't s.35's purpose also undermined by
protecting only those defining features of Aboriginal cultures which were fortunate enough to have not been clearly
rejected by British, French or Canadian colonizers prior to 1982?
"Recognized and Affirmed": The SCC in Sparrow held that existing Aboriginal and treaty rights are not given
absolute immunity from legal encroachment. However, these rights are to be given a large and liberal interpretation
in order to accomplish the purposes of s.35, namely, the achievement of a "just settlement for Aboriginal peoples"
and upholding the honour of the Crown. To invoke s.35, the challenger must demonstrate that the exercise of an
Aboriginal or treaty right has been interfered with. Then, the government must establish:
1) the existence of a valid legislative objective, such as conservation and resource management, the prevention of
harm to others or some other "compelling and substantial" objective. Infringement of Aboriginal rights cannot be
justified on the basis of overly vague criteria such as the "public interest".
2) 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. In the case of resource management, the Court held that the the
Crown's fiduciary obligations required that priority of access to the resource must be accorded to Aboriginal
interests after valid legislative objectives such as conservation had been met.
In future cases, the Court suggested that it will consider additional factors, such as "whether there has been as little
infringement as possible in order to effect the desired result; whether, in a situation of expropriation, fair
compensation is available; and, whether the Aboriginal group in question has been consulted with respect to the
conservation measures being implemented." (Sparrow; and in Delgamuukw 1997). In Delgamuukw, the Court
indicated that "there is always a duty of consultation" and compensation will be appropriate where a right with an
economic component has been restricted or denied.
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The duty to consult with Aboriginal peoples arises whenever the Crown is contemplating a course of action that
could have an impact on Aboriginal rights or on lands subject to a claim of Aboriginal title, even if the Aboriginal
rights or title at issue has been asserted but not yet proven. See Haida Nation 2004 SCC (Crown had a duty to
consult and accommodate the Haida Nation before permitting the harvesting of timber on lands subject to prima
facie case of Aboriginal title); Taku River Tlingit First Nation 2004 SCC (Crown had satisfied its duty to consult
regarding construction of road through TRTFN’s traditional territory); Mikisew Cree First Nation 2005 SCC (Crown
breached a duty to consult before building a road on land subject to treaty right to hunt, fish and trap).
The Sparrow test was modified by the Supreme Court in Gladstone, 1996 in ways that are likely to make it
significantly easier for governments to pursue objectives that have the effect of compromising Aboriginal and treaty
rights. First, the Court indicated its willingness to accept "the pursuit of regional and economic fairness, and the
recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups" as "compelling
and substantial objectives" that could justify overriding Aboriginal and treaty rights. These purposes seem only
slightly less vague than the "public interest" objective rejected as too vague in Sparrow. Secondly, the Court watered
down the requirement set out in Sparrow that the Crown fulfill its fiduciary duties by according priority of access to
a resource to the holders of Aboriginal rights. Lamer C.J. argued that the Sparrow notion of priority of access should
be limited to cases where the Aboriginal right in question is "internally limited". In the case of rights with no
internal limitations -- such as a right to engage in commercial fishing -- giving Aboriginal rights priority could mean
creating a fishery that is exclusively Aboriginal. Unwilling to sanction such a result, Lamer C.J. gave the doctrine of
priority a more nebulous content in the case of rights lacking internal limitations: government must "demonstrate
that, in allocating the resource it has taken account of the existence of aboriginal rights and allocated the resource in
a manner respectful of the fact that those rights have priority over the exploitation of the fishery by other users." As
he acknowledged, the content of this priority is "somewhat vague".
A similar degree of flexibility was introduced in Delgamuukw into the justificatory standard applied to determine
whether interferences with Aboriginal title can be upheld. Lamer C.J. wrote that a wide range of state purposes, such
as "the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of
the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure
and the settlement of foreign populations to support those aims". In so doing, the Court has indicated that s.35(1) is
unlikely to be interpreted as requiring the return of exclusive rights of use and possession to Aboriginal peoples with
regard to land currently used by others. Rather, the issue of compensation will be at the heart of the debates
regarding the requirements of s.35(1) with respect to land settled without regard for existing Aboriginal title.
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