Table of Contents
I
Sources, Structures and Principles .................................................................................................................................... 9
1.
Introduction to Sources of Constitutional Law .................................................................................................................. 9
Elements of Can Const ........................................................................................................................................................... 9
Key Components of Const Acts.............................................................................................................................................. 9
Sources of Can Const ............................................................................................................................................................. 9
Constitutional Change ......................................................................................................................................................... 10
Foundations of Const........................................................................................................................................................... 10
2.
Fundamental Principles ................................................................................................................................................... 10
Reference re Secession of Quebec, [1998]  4 underlying principles (unwritten) fed, dem., respect for minorities and
ROL........................................................................................................................................................................................... 10
3. Minority Rights: Precedent and Innovation....................................................................................................................... 11
(Montford Hospital) Lalonde v. Ontario (Commission de restructuration des services de santé (2001)  minority rights and
ROL........................................................................................................................................................................................... 11
Chinese Head Tax Redress (2002) ............................................................................................................................................ 12
4. The Rule of Law .................................................................................................................................................................. 12
Roncarelli v. Duplessis  ROL and minority rights .................................................................................................................. 12
Positive rights vs Negative rights ......................................................................................................................................... 13
British Columbia v. Imperial Tobacco Canada Ltd.(2005)  federalism  div of powers  ROL ......................................... 13
British Columbia (Attorney General) v. Christie (2007) --ROL.................................................................................................. 13
5. Constitutional Conventions ............................................................................................................................................... 14
Dif b/w Const conventions and underlying unwritten principles ........................................................................................ 14
The Patriation Reference. (Reference Re Amendment of the Constitution of Canada)(1981) what are conventions and
how to establish them ............................................................................................................................................................. 14
6. Imperial Statutes ................................................................................................................................................................ 15
Distinction b/w: Colony acquired by settlement vs colony acquired by conquest ............................................................. 15
Distinction b/w Imperial Statutes and Received Statutes ................................................................................................... 15
From Colony to Nation ........................................................................................................................................................ 16
II.
The Role of Judges ............................................................................................................................................................. 16
1.
Judicial Review and the Canadian Court System ............................................................................................................. 16
2.
The Independence of the Judiciary ................................................................................................................................. 17
Reference re Prov Court Judges (or the Provincial Judges Reference) [1997]  3 elements  and jud indep is an unwritten
fundamental const principle.................................................................................................................................................... 17
3.
Perspectives on Legal and Constitutional Interpretation ................................................................................................ 18
Frozen Rights vs Living Tree approach................................................................................................................................. 18
1
Reference re Meaning of the Word “Persons” in section 24 of the Brit N. Am Act, 1867 [1928][p37]  women become
‘people’ .................................................................................................................................................................................... 18
Edwards v. AG Canada [1930] ................................................................................................................................................. 19
III.
Historical Perspectives and Developments ........................................................................................................................ 19
1.
Pre-Confederation: History, Memory and Mythology .................................................................................................... 19
Legal Plurality....................................................................................................................................................................... 20
Royal Proclamation 1791 ..................................................................................................................................................... 20
How history has mediated lang, historical, and religious dif............................................................................................... 20
Emergence / development of democracy in Can ................................................................................................................ 20
2.
The Confederation Debates............................................................................................................................................. 21
3.
The Late Nineteenth Century .......................................................................................................................................... 21
Division of Legislative powers.............................................................................................................................................. 21
Federalism ........................................................................................................................................................................... 22
Pith and Substance .............................................................................................................................................................. 22
Ancillary / Incidental Effect Doctrine ................................................................................................................................... 22
Russell v. The Queen [1882] prohibition  P&S  incidental effects ............................................................................... 22
Double Aspects Doctrine ..................................................................................................................................................... 23
Hodge v. The Queen [1883]  Prohibition  double aspects doctrine imp of the provs.................................................. 23
National Dimensions Doctrine ............................................................................................................................................. 24
Doctrine of Federal Paramountcy ....................................................................................................................................... 24
AG Ontario v. AG Canada (The Local Prohibition Reference) [1896]  POGG narrowed  paramountcy articulated ..... 24
Dif. Views/theories of Federalism ....................................................................................................................................... 25
Interception b/w Const interpretation and regulatory rules of state ................................................................................. 26
Barrett v. City of Winnipeg [1891]  paying twice for both pub and priv school .................................................................. 26
4.
The Early Twentieth Century: Limiting Federal Powers .................................................................................................. 26
Watertight Compartments (view/approach to federalism) ................................................................................................ 27
Toronto Electric Commissioners v. Snider [1925]  limitation of trade and commerce power  emergency nature of
POGG ....................................................................................................................................................................................... 27
5.
The Depression and the New Deal: Legal Responses ...................................................................................................... 28
Overlapping Jurisdictions (view / approach to federalism) ................................................................................................. 28
AG Canada v. AG Ontario (Labour Conventions) [1937]  Div of powers .............................................................................. 29
AG Canada v. AG Ontario (The Employment and Social Insurance Act) [1937]  narrow POGG interpretation  seeds of
spending power jurisdiction .................................................................................................................................................... 29
IV.
Modern Constitutional Interpretation: Federalism, Formalism and Functionalism ...................................................... 30
1.
The Modern Canadian State: Governance, Visions and Values ...................................................................................... 30
-
3 rationales/criteria for approaching changes to federalism (Simeon article............................................................. 31
2
Three types const challenges = validity/ultra vires, applicability, inoperability ................................................................. 31
2.
Assessing the Validity of Laws (Ultra vires) ..................................................................................................................... 31
Colourability doctrine .......................................................................................................................................................... 32
R V. Morgentaler [1993]  P&S  Colourability ................................................................................................................... 32
Canadian Western Bank v. Alberta [2007] .............................................................................................................................. 33
Reference re Employment Insurance Act [2005]  P&S ......................................................................................................... 33
Necessarily Incidental or Ancillary Doctrine ........................................................................................................................ 33
Test ...................................................................................................................................................................................... 34
General Motors of Canada Ltd. v. City National Leasing [1989] necessarily incidental ...................................................... 34
Double Aspect Doctrine ....................................................................................................................................................... 34
Multiple Access Ltd. V. McCutcheon [1982]  Double aspect doctrine  paramountcy ...................................................... 34
Classical vs modern paradigm ............................................................................................................................................ 35
3.
Applicability: Interjurisdictional Immunity Doctrine ....................................................................................................... 35
Bell #1 (Commission du salaire minimum du Quebec v. Bell Telephone [1966]  interjurisdictional immunity ................... 35
McKay v. The Queen [1965]  signs on laws for fed election  interjurisdictional immunity ............................................. 36
Bell #2 (Commission de la sante et de la securite de travail v. Bell Canada[1988]  interjurisdicitonal immunity............... 36
Irwin Toy case –interjurisdictional immunity .......................................................................................................................... 36
Canadian Western Bank v. Alberta [2007] insurance sale  interjurisctional immunity ................................................... 37
4.
Operability: The Paramountcy Doctrine .......................................................................................................................... 37
Test for paramountcy .......................................................................................................................................................... 38
Ross v. Registrar of Motor Vehicles [1975] driver’s license suspended federal paramountcy ...................................... 38
Multiple Access Ltd. V. McCutcheon [1982]  dual compliance (passes paramountcy test – operable) .............................. 39
Bank of Montreal v. Hall [1990] .............................................................................................................................................. 39
Rothmans, Benson &Hedges Inc v. Saskatchewan [2005] Dual Complicity......................................................................... 40
Aboriginal Self-Governance and the Const.......................................................................................................................... 40
-
Delgamuukw ................................................................................................................................................................ 40
5. Overview of Selective Federal and Provincial Powers ........................................................................................................ 40
(a) Peace, Order and Good Government (POGG) ................................................................................................................... 40
POGG prongs ....................................................................................................................................................................... 41
o
Emergency prong ......................................................................................................................................................... 41
o
National concern / dimension prong ........................................................................................................................... 41

Test = ........................................................................................................................................................................... 41

NEWNESS: .................................................................................................................................................................... 41

DISTINCTIVENESS: ........................................................................................................................................................ 41

PROVINCIAL INABILITY TEST: ....................................................................................................................................... 41
3
Reference re Anti-inflation act[1796]  POGG  emergency prong..................................................................................... 41
R v. Crown Zellerbach Canada Ltd[1988]  POGG  National Concern Prong ..................................................................... 42
Friends of the Oldman River Society v. Canada (Minister of Transport) [1992]  POGG  no national concern ............... 43
(b) Criminal Law ...................................................................................................................................................................... 43
(i) Federal Crim L power .................................................................................................................................................... 43
Reference re Validity of Section 5(a) of the Dairy Industry Act (Margarine Reference) [1949]............................................... 44
RJR MacDonald Inc. v. Canada (Attorney General) [1995]  under Crim .............................................................................. 44
R. v. Hydro-Quebec [1997]  crim law  matter is shared jurisdiction ................................................................................ 45
Reference re Firearms Act [2000]  Crim L test successful .................................................................................................... 45
(ii) Prov Power to Regulate Morality and Public Order ...................................................................................................... 45
Nova Scotia Board of Censors v. McNeill [1978]  P&S  Not Crim Provs usually deal w/ moral issues ......................... 46
Westendorf v. The Queen[1983]  colourability .................................................................................................................... 46
Rio Hotel v. New Brunswick [1987]  n ot crim  dual compliance ..................................................................................... 47
Assessing Federalism ........................................................................................................................................................... 47
6. Case Studies in Federalism ................................................................................................................................................. 48
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ............................................................................................................................................................. 49
V.
Challenges to Canadian Federalism ..................................................................................................................................... 50
1. Globalization & National Constitutionalism ....................................................................................................................... 50
Ec Regulation: Prov and Federal Powers ............................................................................................................................. 50
Trade and Commerce .......................................................................................................................................................... 50
Carnation Co. Ltd. v. Quebec Agricultural Marketing Board [1968] .................................................................................... 50
Central Canadian Potash Co. Ltd. v. Govt. of Saskatchewan [1979] ................................................................................... 51
Sec 92(A) .............................................................................................................................................................................. 51
Trade and Commerce - Prong #1 – Inter-prov and int’l trade and commerce .................................................................... 52
The Queen v. Klassen (1960) (just a Manitoba Court of Appeals decision) ......................................................................... 52
Kosher foods - importation restrictions – English labels on products - (Quebec) ................. Error! Bookmark not defined.
Trade and Commerce - Prong #2 – General Trade and Commerce.................................................................................... 53
General Motors of Canada Ltd. v. City National Leasing [1980] ......................................................................................... 53
Kirkbi AG v. Ritvik Holdings Inc. [2005] ................................................................................................................................ 54
Trade Barriers, Ec Integration and National Sovereignty .................................................................................................... 54
Black and Co. v. Law Society of Alberta [1989]................................................................................................................... 55
2. Flexible Federalism ............................................................................................................................................................. 56
(a) Fed Spending Power / Taxation...................................................................................................................................... 57
(b) Executive Federalism and Intergovernmental Agreements .......................................................................................... 59
4
(c) Delegation b/w govs (fed and prov) .............................................................................................................................. 59
3.
Aboriginal Governance and Federalism........................................................................................................................... 60
Campbell v. AG BC (2000) ........................................................................................................................................................ 62
4. Quebec and Asymmetrical Federalism .............................................................................................................................. 62
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 ..................................................................................................... 63
Human Rights: Antecedents of the Charter.................................................................................................................. 64
VI.
1.
Rights, Racism and Federalism ........................................................................................................................................ 64
Three themes pre-Charter for dealing with rights .............................................................................................................. 64
Union Collery Co. v. Bryden [1899] – BC .............................................................................................................................. 65
Cunningham v. Tomey Homma [1903] ............................................................................................................................... 65
Quong Wing v. The King [1914] ........................................................................................................................................... 66
2.
Religious Education and Minority Language Rights......................................................................................................... 67
3. The Implied Bill of Rights and the Canadian Bill of Rights ................................................................................................. 67
Implied bill of rights ............................................................................................................................................................. 67
Reference re Alberta Statutes [1938] ................................................................................................................................. 67
Saumur v. City of Quebec [1953] ......................................................................................................................................... 68
Switzman v. Eibling [1957]................................................................................................................................................... 68
AG Canada v. Dupond [1978] .............................................................................................................................................. 69
Ontario Public Service Employees’ Union v. AG Ontario, [1987] ......................................................................................... 69
Canadian Bill of Rights ......................................................................................................................................................... 69
-
Equality Provisions ....................................................................................................................................................... 70
R v. Drybones [1970] ............................................................................................................................................................ 70
AG Canada v. Lavell [1974] .................................................................................................................................................. 71
Bliss v. AG Canada [1979] .................................................................................................................................................... 71
VII.
THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS................................................................................................... 71
The Advent of the Charter and Approaches to Charter Interpretation ...................................................................................... 71
Basic Structure and Framework for Interpreting Rights .......................................................................................................... 73
-
The Purposive Approach.................................................................................................................................................. 74
Hunter v. Southam [1984]................................................................................................................................................... 74
Big M Drug Mart .................................................................................................................................................................. 75
Sources/aids of interpretation ............................................................................................................................................ 75
1. The Merits of Entrenchment and the Legitimacy of Judicial Review / 2.Approaches to Interpretation Revisited ............. 76
The left-wing critique of the Charter: .................................................................................................................................. 76
The liberal response to critique of Charter: ........................................................................................................................ 76
Critiques of judicial review based on charter ...................................................................................................................... 76
5
Response to critiques .......................................................................................................................................................... 77
Vriend v. Alberta [1998]....................................................................................................................................................... 79
3.The Application of the Charter: Standing and State Action Governmental Actions ........................................................ 79
(Dolphin Delivery) Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. [1986] ................. 80
GOVERNMENTAL ACTORS ................................................................................................................................................... 81
-
Entities Controlled by Gov ........................................................................................................................................... 81
McKinney v. University of Guelph [1990]............................................................................................................................. 81
Stoffman v. Vancouver General Hospital [1995] ................................................................................................................. 82
-
Entities Exercising Governmental Functions ............................................................................................................... 82
Godbout v. Longueuil [1997] ............................................................................................................................................... 82
GOVERNMENTAL ACTS ........................................................................................................................................................ 83
-
Entities Implementing Government Programs ............................................................................................................ 83
Eldridge v. British Columbia (Attorney General) [1997] ...................................................................................................... 83
-
Entities Exercising Statutory Powers of Compulsion ................................................................................................... 84
Slaight Communications Inc. v. Davidson [1989]................................................................................................................. 84
GOVERNMENT INACTION .................................................................................................................................................... 84
Vriend v. Alberta [1998]....................................................................................................................................................... 84
Dunmore v.Ontario (AG) [2001].......................................................................................................................................... 85
APPLICATION OF THE CHARTER TO COURTS AND THE COMMON LAW (NOT IMP??) ........................................................ 86
Hill v. Church of Scientology of Toronto [1995] ................................................................................................................... 86
WHO IS PROTECTED BY THE CHARTER (CB 814 INCLUDE?? NOT DISCUSSED IN CLASS?) ............................................... 86
STANDING: WHO CAN RAISE CHARTER ISSUES (CB 1300  INCLUDE?? NOT DISCUSSED IN CLASS?) ............................... 86
JURISDICTION: WHERE CAN CHARTER ISSUES BE RAIED (CB 1302  INCLUDE? NOT DISCUSSED IN CLASS?) .................. 86
4. Limits on Charter Rights....................................................................................................................................................... 86
Kinds of limitations on Charter rights: ................................................................................................................................. 86
SECTION 1- Defining limitations .......................................................................................................................................... 87
-
A) Prescribed by law .................................................................................................................................................... 87
R. v. Nova Scotia Pharmaceutical Society [1992] ................................................................................................................ 88
-
B) Justification.................................................................................................................................................................. 89
o
Oakes Framework/Test................................................................................................................................................ 89
R. v. Oakes [1986] ................................................................................................................................................................ 90
o
Critique of Oakes test .................................................................................................................................................. 91
o
In the wake of Oakes test subsequent development of Oakes test: Context and Deference ................................ 92

1) Contextual Approach ............................................................................................................................................... 92
Edmonton Journal v. Alberta (AG) [1989]  contextual approach ..................................................................................... 92
6
Thomson Newspapers Co. v. Canada [1998] overview of contextual approach ............................................................. 93
R v. Lucas [1998] .................................................................................................................................................................. 93

2) Deference to legislative judgement ........................................................................................................................ 94
Irwin Toy Ltd. v. Quebec (AG) [1989]  key case on judicial deference ............................................................................. 94
RJR Macdonald Inc. v. Canada (AG) ..................................................................................................................................... 95
Newfoundland (Treasury Board) v. N.A.P.E. [2004] ............................................................................................................ 95
s. 33 THE OVERRIDE ............................................................................................................................................................. 97
Ford v. Quebec [1988].......................................................................................................................................................... 98
5. FUNDAMENTAL FREEDOMS  Case Studies:..................................................................................................................... 99
(a)
Fundamental Freedoms  Freedom of Religion (s.2[a]) ..................................................................................... 100
Multani v. Commission scolaire Marguerite-Bougeoys [2006].......................................................................................... 102
Sunday Observance Cases ................................................................................................................................................. 103
R v. Big M Drug Mart Ltd. [1985]....................................................................................................................................... 103
Edwards Books and Art Ltd. v. The Queen [1986] ............................................................................................................. 104
(b)
Fundamental Freedoms  Freedom of Expression (s.2[b]) ................................................................................ 106
Key Rationales for Freedom of Expression ........................................................................................................................ 106
R v. Keegstra [1990] (Note  Sheppard said we could omit this case) (hate speech)  ............................................ 106
(Dolphin Delivery) Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. [1986] (SEE MORE
IN DEPTH SUMMARY ABOVE) ............................................................................................................................................ 108
Framework for a Doctrinal Structure for Freedom of Expression Cases ........................................................................... 108
Irwin Toy Ltd. v. Quebec (AG) [1989] ................................................................................................................................. 108
(c)
Life, Liberty and Security of the Person (s.7) ......................................................................................................... 109
Reference re Section 94(2) of the Motor Vehicle Act (BC) [1985] ...................................................................................... 109
Gosselin ............................................................................................................................................................................. 110
R v. Morgentaler [1988]..................................................................................................................................................... 110
Rodriguez v. British Columbia (AG) [1993] ........................................................................................................................ 111
Suresh v. Canada (Minister of Citizenship and Immigration) [2002] ................................................................................. 112
(d)
Equality Rights (s.15) ............................................................................................................................................. 113
Andrews v. Law Society of British Columbia [1989]  sets out first s.15 test  intersection w/ s.1 .............................. 114
Law v. Canada (Minister of Employment and Immigration) [1999] .................................................................................. 115
Test of Equality laid out in Law v. Canada ..................................................................................................................... 117
IACOBUCCI J’s TEST FOR DISCRIMINATION FROM Law: .................................................................................................... 117
R. v. Kapp [2008] ................................................................................................................................................................ 118
Lovelace [2000] (extra) ...................................................................................................................................................... 120
Eldridge v. British Columbia (AG) [1997] adverse effects doctrine ............................................................................... 120
7
Corbiere v. Canada (Minister of Indian and Northern Affairs [1999] ................................................................................ 121
6. Minority Language Rights (s. 23) ...................................................................................................................................... 122
Mahe v. Alberta [1990] ...................................................................................................................................................... 123
Ford v. Quebec (AG) [1988] ............................................................................................................................................... 124
7. Remedies (s. 24 of Charter and s. 52(1) of Const) ............................................................................................................ 125
Doucet –Boudreau v. Nova Scotia (Minister of Education) [2003] .................................................................................... 125
Schachter v. Canada [2002] ............................................................................................................................................... 127
Vriend v. Alberta [1998]..................................................................................................................................................... 129
Canadian Charter of Rights and FreedomsConstitutional Law Problems Framework of Analysis .................................... 132
VIII.
The Constitutional Entrenchment of Aboriginal Rights .................................................................................................. 134
1.
The Constitutional Entrenchment of Aboriginal Rights ................................................................................................. 134
Delgamuukw ...................................................................................................................................................................... 134
R v. Sparrow [1990] ........................................................................................................................................................... 134
Calder v. BC (AG) [1973] .................................................................................................................................................... 135
R v. Gladstone [1996]......................................................................................................................................................... 135
Test for prima facie interference w/ an existing aboriginal right ...................................................................................... 136
R v. Van der Peet [1996] .................................................................................................................................................... 136
Distinctive Culture Test...................................................................................................................................................... 137
Mitchell v. Canada (Minister of National Revenue-M.N.R) [2001] .................................................................................... 138
R v. Sappier [2006] ............................................................................................................................................................. 139
2.
Constitutional Recognition of Métis Rights ................................................................................................................... 139
R v. Powley [2003] ............................................................................................................................................................. 140
3.
Aboriginal Rights and the Duty to Consult .................................................................................................................... 140
Haida Nation v. British Columbia (Minister of Forests)Taku River and Mikisew Cree ....................................................... 140
4. Nunavut, Self Government and the Inuit we did earlier in the course?)..................................................................... 141
IX.
1.
Constitutional Renewal and Reform.............................................................................................................................. 141
Constitutional Amendment after 1982: The Meech Lake and the Charlottetown Accords .......................................... 141
Amending the Constitution ............................................................................................................................................... 141
2.
Democracy, Diversity and Constitutional Dialogue ....................................................................................................... 145
8
I
Sources, Structures and Principles
1. Introduction to Sources of Constitutional Law
-
Written and unwritten rules, principles and practices , Const and other historical sources
Elements of Can Const
o Parliamentary Democracy = ensures general laws are made by elected legislature ---- - + executive branch
(cabinet) has authority but is accountable to legislature for admin of law + elected reps make laws but they
are subject to assessment of courts and admin tribunal
o Federalism = Div. of gov along territorial lines + div bw fed and prov
o Rights = claims that citizens (as both indivs and members of a particular community) have against state +
Human Rights and minority rights
o Aboriginal Rights = bc lived in organized societies bef Euro contact
o Also
 Collection of const conventions = not really laws but still part of Can const order
 Fundamental principles = straddle divide bw const conventions and const L and provide raison
d’etre for many of the unwritten const conventions + at the heart of Const conventions (eg Rule of
law = expectation that gov will exercise power in an non-arbitrary manner)
Const
Const Law
Fundamental Principles
Conventions
(Can be legally enforceable)
(not legally
enforceable)
Key Components of Const Acts
- Primacy of the Can Const --- Section 52 p76
o Sets the supremacy of an courts –to which all laws must comply + judges play imp role – as an declare a law
as “no force and effect” (basically const invalid) -- Const L trumps
o Ref to Morgan Toeller –use of section of Const to strike down a charter
o Main written parts
Sources of Can Const
- Common L principles –created by judges
- Constitutional Conventions = rules of L that have been developed from gov practice over time and are enforced by
political sanctions not the courts + not legally enforceable but at heart of Const trad (eg principle of resp gov)
- Important Statutes – no formal requirement to go through const amendment process , trump common law
principles(?)
o Can Citizenship Act
o Supreme Court of Can Act
o Human Rights Acts
- Historical Docs. / Actions by Brit Crown and Brit Parl (eg Royal Proclamation of 1793, Quebec Act 1774 etc
o Brit N Am Act – as provs joined Confed became bound by this
o Canada Act 1982 –disconnection bw UK Park and Can laws
 contains text of
9
-
Const Act 1982 –( resulting changes)
 Protection of indivs and groups in the Can Charter of Rights and Freedoms + which has meant new
imp role of courts in overseeing legality of gov action
 Recognition of Ab and treaty rights
 Altered distribution of powers in relation to natural resources
 Qualifies legislative supremacy
(International law principles ---not primary imp though)
Constitutional Change
- In Can change to Cont requires approval of fed Parl and at least two thirds of prov legislatures representing at least
50% of pop = Const change by formal amendment is difficult and time-consuming
- Change also done through judicial interpretation of Const
- (((Reference procedure )))
Foundations of Const
- Written Const Acts 1867, 1982
o Binding
o Can be used to challenge other laws
o Any changes have to go through Const amendment process
- Fundamental Const Principles
2. Fundamental Principles
-
Sometimes referred to as unwritten but some are written
As expressed in the Reference re Secession of Quebec
-
Reference re Secession of Quebec, [1998] 2 S.C.R. 217
Reference re Secession of Quebec, [1998]  4 underlying principles (unwritten) fed, dem.,
respect for minorities and ROL
-
In wake of referendum
Right or not to unilateral secession
Issue –
1) Under Const of Can, can the National Assembly, legislature or gov of Quebec effect the secession of Quebec
from Canada unilaterally? Held = No
2) Does int L (under right of sef-determination) give National Assembly, legislature or gov of Quebec the right to
effect the secession of Quebec from Canada unilaterally? Held = No
3) In the event of a conflict bw the Const and int L? Held = not imp to answer
Reasoning- Decision that Const has “vital, unstated, assumptions that inform Const” = 4 underlying principles are evident in
the Can Const (although not exhaustive) + present in preamble to Const Act 1867 + implies continuity of
unwritten const principles that already existed in UK
-
1) Federalism = Political powers shared by two orders of gov – fed and prov +each assigned respective spheres of
jurisdiction set out in Const Act 1867 + includes democracy, diversity, and aut
2) Democracy = “the supremacy of the sovereign will of a people” + combined w federalism it can entail
10
“different and equally legitimate majorities in different provinces and territories and at the fed level” + combined
w rule of law = creates framework within which the ‘sovereign will is to ascertained and implemented + value of
dissenting voices, compromise etc.
3) Rule of law (and constitutionalism) = “the law is supreme over the acts of both gov and private persons – one
law for all” + no one is above the L + executive accountability + shields against arbitrary state action (see
Roncarelli v. Duplessis) + Const is supreme L and ae entrenched beyond the reach of gov action or simple majority
rule in order to safeguard human rights, protect minorities against assimilation, and divide power bw dif levels of
gov
4) Respect for minorities = recognition of minority rights had existed bef Const (eg Royal Proc of 1763, Quebec
Act 1774) + “the 3 other const principles inform scope and operation of specific provision that protect rights of
minorities
Ratio - Where there is no apparent answer to a constitutional question in the written text of the Constitution, the Court
may resort to unwritten constitutional principles such as those of federalism, democracy, constitutionalism and the rule
of law, and respect for minorities, in order to fill the gaps. These unwritten principles are incorporated by reference in
the preamble of the Constitution Act, 1867 and developed over time with the “living tree”.
Comments:
The Quebec government refused to take part, and the amicus curiae appointed by the Court to represent the case for
the legality of secession argued that the case was not justiciable (it entailed political rather than legal questions). The
Court unanimously found that the case was justiciable.
-
Federalism
Democracy
Rule of Law
Minority rights
(Judicial independence (but was this is Secession ref?))
- critique that judges were becoming Const writers
- certain circumstances unwritten principles may constitute substantive limitations/legal obligations on gov.
- Fundamental principles used in Lalonde v. Ontario (Montford Hospital)
3. Minority Rights: Precedent and Innovation
(Montford Hospital) Lalonde v. Ontario (Commission de restructuration des services de santé
(2001)  minority rights and ROL
-
Ontario to close Montford due to hospital/healthcare restructuring (to lower costs) --- only hospital in Ont
where working lang is French and where services are provided in French on full-time basis
Community hospital for substantial francophone community in eastern Ont
Plays unique role in the ed and training of French-speaking healthcare professionals
seen as an imp cultural institution guarding against progressive assimilation of Ontario Francophone pop
-
Tried to use Section 15 under equality but doesn’t work bc doesn’t explicitly list lang protection/equality ---and
court says more of a community rights issue rather than indiv rights
-
Use of fundamental principles/unwritten const principles --- Protection of minorities
-
Arg that closing hospital (as per commission’s directives) would cripple Monford and as an imp francophone inst
11
this would = failure to respect unwritten constitutional principles of respect and protection of minorities
-
Ont appeals that lang rights are exhaustively defined by written text of Const and Montford not protected by
written Const
-
Arg that
-
Eg of how facts affect Const L
-
In relation to rule of law ---this case challenges executive branch and the exercise of executive power
-
Conclu – that Commission didn’t take into account imp role Montford Hosp played in cultural, educational, and
linguistic sphere
-
Comment – Context/facts are imp to determine which way courts will lean ---distinguish Tabacco cases - for this
reason…
Chinese Head Tax Redress (2002)
-
Chinese community sought redress for head tax put on Chinese immigrants to deter them from immigrating
Issue of compensation for past laws ----- * but Charter is non-retroactive
They didn’t use fundamental underlying principles from Secession ref
4. The Rule of Law
Roncarelli v. Duplessis  ROL and minority rights
- Deals w both rule of law and minority rights –often these two intersect
- Duplessis not above the law
- Shows imp of judges who are independent and willing to stand up to strong pressure form community
- Religious discrimination
Facts
- Duplessis –premier of Quebec
- Roncarelli – Jehovah’s Witness ---(appellant) – targeted for his religious beliefs
- Many JHs jailed in action to stop promotion of religious beliefs and distribution of literature in Quebec
- Ap owned restaurant and used money to post bail for many jailed JHs
- To stop this Resp ordered head of liquor commission, Archambault, to revoke liquor license, resulting in closure
of resto, and thus preventing Ap from posting bail
- According to provision s of statute governing – Commision could basically revoke liquor ‘at its discretion” –but
must do this within limitation of statute and must involve ‘good faith’ but instead seen to be acting ‘w malice’ -- if Statute itself stated could cancel at it’s discretion w/out reason this would be against underlying rule of law
principle
Issue
- Should a party in a position of power be able to target and suspend another’s rights or punish them as a result
of a disagreement in terms of religious rights and freedoms - Held = No = Abuse of legal power and
discrimination
Ratio
12
-
is unacceptable to target someone on account of their religious beliefs and such an act should be considered an
act of malice, and when the perpetrator is in a position of considerable power and influence, may be also
considered an abuse of legal power
Comment:
- Extreme discrimination within the province of Quebec towards Jehovah’s Witnesses essentially came to a head
with this case. There was a certain sense of one group’s rights as being more important than the other groups’
rights. Roman Catholic’s for example didn’t want to be harassed with the literature that the Jehovah’s
Witnesses distributed quite prolifically. This ultimately resulted in suppression of the Jehovah’s Witnesses right
to freedom of religion and expression.
Positive rights vs Negative rights
- positive oblige action (like social security, healthcare etc—in order enable them gov needs to be involved) and
negative oblige inaction (like freedom of speech etc)
British Columbia v. Imperial Tobacco Canada Ltd.(2005)  federalism  div of powers 
ROL
-
challenging how legislative branch has exercised power
BC gov essentially set out rules surrounding healthcare costs related to tobacco making it easier to win Torts
cases against Tobacco companies – for general costs incurred bc of tobacco
Amount companies had to pay divided as per market share
Corporations concerned bc gov had essentially based a retroactive law
New legislation came into effect the same day that gov sued 14 tobacco companies
Had tried to pass legislation bef but had been struck down b/c of federalism – as in BC seen as trying to legislate
outside of prov jurisdiction
-
Corporations –3 args
1) federalism arg –div of powers ---succeeded at trial level 2) law interfered w/ judicial independence (partly
written, partly unwritten principles) 3) rule of Law
-
Rule of law – companies submit that rule of law requires that legislation 1) be prospective 2) be general in
character 3) not confer special privileges on the gov except where necessary for effective governance 4) ensure
a fair civil trial -------------they argue the Act breaches each of these requirements, rendering it invalid
-
Note distinguish Montford Hospital – facts effect colour of judicial decision ---there unwritten principles were
read into in terms of Rule of Law but not in this case -------tobacco companies trying to use rule of law to their
advantage
British Columbia (Attorney General) v. Christie (2007) --ROL
-
challenging how legislative branch has exercised power
7% tax on purchase price of legal services
b/c Christie was charging so little and had so many unpaid clients – still had to pay, gov ended up seizing the
money since he didn’t have it
trial level ruled in his favour
Ramifications ---abolishing tax for free legal aid in BC by using arg that free etc legal aid is required for fair
access to courts and trial - would allow arg that in order to have fair access to courts would require a lawyer –
which would necessarily then be free = cost to Can ec would be overwhelming
13
-
-
Rule of law embraces at least 3 principles = 1) arbitrary power = law is supreme over officials of gov and private
indivs 2) requires creation and maintenance of an actual order of positive laws which preserves and embodies
the more general principles of normative order (also see Ref r. Manitoba Lang Rights) 3) that interaction w/
state and indiv bw regulated by L
+ Court says clear from review of these principles that general access to legal services is not a currently
recognized aspect of the rule of L –but note that in Imperial Tobacco court left open the possibility that the rule
of law may include additional principles + too broad to have a right to be represented by a lawyer in court in
order to ensure fair trial ---even corporations could argue for it
-
Ruled against Chrisite
-
Slippery slope arg
5. Constitutional Conventions
-
Accepted practices about Can politics + sometimes consistent w/ what’s written, sometimes not + have political not
legal force
Const Law
Const
Conventions
(political) – not
enforceable
(
Dif b/w Const conventions and underlying unwritten principles
- Underlying principles are legally enforceable and conventions are politically enforceable
- Conventions can be embedded w/in (and in that way become legally enforceable?)
- More pragmatic in terms of actual practice (practical)
- Link b/w them but also conflict where conventions often go against written …(so possibility of undermining?)
The Patriation Reference. (Reference Re Amendment of the Constitution of Canada)(1981)
what are conventions and how to establish them
-
A constitutional convention requires province’s approval / consent
Constitutional convention = essential rules yet not actually part of L of Const
- Main purpose is to ensure that the legal framework of the Const will be operated in accordance w/ the
prevailing Const values or principles of the period
- Based on custom and precedent
usually unwritten
- Aren’t enforced by courts (as opposed to Const L)
- Unlike common L rules, conventions aren’t judge made – aren’t based on judicial precedents but on precedents
established by the institution of gov themselves
- Main reason can’t be legally enforced = they are generally in conflict w legal rules which they postulate and
courts are bound to enforce the legal rules ---- not illegal just that legal rules create wide powers, discretions
and rights which conventions prescribe should be exercised only a certain limited matter if at all
- Can become law by statutory adoption
- b/w custom on one hand and law on other but nearer to law
- some conventions can be more imp than some laws depending on value/principle safeguarded which is why
can result in something being unconstitutional which entailing no direct legal consequence
14
Requirements for establishing a convention
must be normative (?) – 3 Questions 1)what are precedents 2) did actors in precedents believe that they were
bound by rule 3) is there a reason for the rule
6. Imperial Statutes
Appointed
by Fed gov
Tax Court
Trial
Admin
Tribunal
Appointed
provincially – deals
Admin
w day to day
Tribuna
things (small
l
claims court – Sec
Distinction b/w: Colony acquired
by settlement vs colony acquired by conquest
92(4)
- Settled colonies = bring Eng L w/ them and it would applied to colony – received L of Eng (both UK Parliamentary
statutes and common L) – statutes could be modified by colonial legislatures – transferred like template ---to ensure
no vacuum of L in colony
- Conquered colonies (or colonies acquired by cession) = L existing at time of conquest would continue to apply except
as modified by Brit Colonial rule
- NOTE =
o - Maritime Provs – treated as settled even though actually ceded from France
o Ont and Que treated as acquired by conquest
Distinction b/w Imperial Statutes and Received Statutes
- Imperial = could not be amended by colonial legislature – means by which imperial power could
- impose its will on the colony ---applied in a colony by virtue of their own force –trumped
o Parliament at Westminster
o Brit N Am Act
- Received = applied directly in colonies by British settlers – could be amended by colonial legislatures (so they were
making their own laws)
15
From Colony to Nation
- CONFEDERATION – Creation of the Dominion of Can = Didn’t mean independence – federating provs were all still
Brit colonies
- BRIT EMPIRE = evolved into Commonwealth --- colonies evolved into independent states
- COLONIAL LAWS VALIDITY ACT, 1865 =
o Defined imperial statutes as ‘an act of parliament (of Westminster) extending to colony’
o Colonial laws were void if contravened (were repugnant to) an imperial statutes (Brit N Am Act) but not void
if contravened received statute or rule of common L
o By narrowly defining the class of imperial statutes and thus confining the doctrine of repugnancy – Act was
intended to Extend rather than Restrict the powers of colonial legislature
- BALFOUR DECLARATION, 1926 = Developed at imperial conferences --- affirmed that UK and dominions are aut
communities, equal in status, united by common allegiance to Crown and freely associated members of the Brit
Commonwealth of Nations
- STATUTE OF WESTMINSTER, 1931 = provided that no statue of the UK would extend to a dominion unless it
expressly declared in that act that dominion had requested and consented to the enactment ----imperial statues
could be amended, repealed by dominions (s7(1) except for BNA Act, 1867
o Problem that BNA lacked any general procedure for amendment w/in Can as Parliament was only body of
legal authority to amend BNA ---eliminated by part V of const Act 1982 which provides procedures for
amendment of all part of Const of Canada without recourse to the UK
- CANADA ACT, 1982 = repealed s7(1) – introduced Supremacy clause and domestic amending formula
II.
The Role of Judges
1. Judicial Review and the Canadian Court System
-
-
-
JUDICIAL REVIEW = power of courts in Can to determine, when properly asked to do so, whether action taken by a
gov body or legal actor is or isn’t in complains w/ Cost and if not , declare it unconst
o Cases heard by Admin tribunals – can go up for judicial review instead of or bef appeal
Courts interpret and enforce L
Supreme Court – 9 appointed judges (justices) –sec 96
o (sec 100 –notion that to make good decisions judges need job security and financial security – so no
‘looking’ for money)
o Sec 99-100 provides protection for federally appointed judges ---but what how is judicial independence of
prov system ensured?
Jurisdiction ---fed = tax, human rights, immigration etc – *if fed doesn’t have specific laid out jurisdiction then
default is to provs
Triggering Judicial Review and Procedural Issues
o How do Const issues get to court
 Ordinary Litigation and Rules of Standing
 Through crim or civ proceedings
 RULES OF STANDING – determine who has a sufficient interest in a legal issue to be allowed
to raise it bef a court – must show that ‘no other effective or reasonable way for manner to
be dealt w/’
o Broadened in const cases creating a new cat of ‘public interest standing’ (eg Noval
Soctia Board of Censors v. McNeil)
 The Reference procedure
 intent of clarification
16



process initiated by exec arm of gov where govs are allowed to refer imp legal questions,
inclu const issues, directly to appellate court for an advisory opinion --bypasses trial level so
is much quicker –parties aren’t required to bear cost of litigating const issues of broad
societal concern
Notice requirements
 Notice must be given if dealing w/ const issue or if const issues raised in courts
Parties and interveners
 Interested persons or groups can apply for intervener status – to put additional args to the
court
 Must balance unfairness to parties and delay in resolving issue w/ potential usefulness of
the intervener’s contribution to a full consideration of the const issue-
2. The Independence of the Judiciary
-
-
-
3 characteristics
o Security of tenure, financial security, administrative independence (?) --- allows for independence from
political interference
2 dimensions of judicial independence ----(in case one judge or aspect might be affected?)
o Individual
o Institutional
11D of Charter = ….public hearing by an independent and impartial tribunal (ref to this made in Imperial Tobacco)
Reference re Prov Court Judges (or the Provincial Judges Reference) [1997]  3 elements 
and jud indep is an unwritten fundamental const principle
Facts:
 PEI, Alberta, and Manitoba introduced legislation imposing salary reductions on provincial court judges.
 These reductions were part of across-the-board salary cuts in the public service.
ssuIe: Was this legislation constitutional? Are salary reductions for judges inherently unconstitutional in all cases?
Held: No. No.
Reasoning:
 Nothing in the constitutional texts explicitly deals with the salaries of provincially appointed judges.
 Despite the absence of any explicit guarantee, judicial independence is an “unwritten principle” referred to in the
preamble to the Constitution Act, 1867.
 s.11(d) of the Charter and ss. 96-100 of the Constitution Act, 1867 “merely elaborate” on that principle. They do
not provide an “exhaustive and definitive code of for the protection of judicial independence.” ---judicial
independence at root of Const
 Judicial independence has three elements: financial security, security of tenure, and institutional independence.
 “Independent, effective, and objective” commissions should be established to make recommendations on a
periodic basis relating to the appropriate level of remuneration for the judiciary. Governments are not required to
accept these recommendations but should do so unless they have a “legitimate” reason not to.
 Also idea that judges shouldn’t have to negotiate their own salary
 The legislation in question was not enacted following the report of such a commission and was thus
unconstitutional.
Ratio:
Judicial independence is an unwritten, fundamental constitutional principle that protects the judiciary against
interference by the legislative or executive branches of government. Any interference in the financial security,
security of tenure, or institutional independence of the courts should only be done pursuant to the recommendations
of a body, itself independent of the government.
- Link b/w Imperial Tobacco case and Prov Judges Ref ---link b/w judicial independence and rule of law
17
3. Perspectives on Legal and Constitutional Interpretation
-
Elliot – pp31-35
o 6 dif forms of argumentation –ways to interpret
 Framers’ /drafters’ intent (frozen rights/ historical)
 Textual = arg drawn from consideration of present sense of words of the provision in question (is
this like living tree??)
 Doctrinal/ case law and precedent = arg from previously decided cases ***predominant in Can –
precedent has to do w/ hierarchy whereas case law doensn’t
 Note that dissents can be imp at Supreme Court level b/c it can overrule itself over time –so
a w/social change and time dissent can become majority decision later on
 Prudential = arg about costs and benefits –‘practical arg’ ---politics ---policy based args (so eg of
Little Rock School case in US?)
 Ethical = relies on characterization of American institutions and the role within them of the
American people --who we think we are and how we think about ourselves and society ---effect of
worldview
 ***Structural = inferences from const structures and the relationships which Const ordains among
these structures ----unwritten or underlying
 Moves from entire Const rather than from specific parts
 Egs = Prov Judges Ref , Secession Ref
 Sheppard adds – extrinsic evidence to inform domestic evi
 Social science evi
 Gov reports
 International L
Frozen Rights vs Living Tree approach
- Static vs changing over time
Reference re Meaning of the Word “Persons” in section 24 of the Brit N. Am Act, 1867
[1928][p37]  women become ‘people’
Issue: Does “qualified persons” in s. 24 of the BNA Act include women? Are women eligible for Senate appointment?
Held: No. No.
Reasoning:
 In order to answer the question, the Court must interpret the intent of the Legislature that created BNA Act.
 Several facts suggest that women were not considered to be included in “qualified persons”:
1. The office of Senator was created by BNA Act. Therefore it is the Act alone that contains the meaning of who can
be Senator.
2. Under the common law of England of the time, women were considered under a legal incapacity to hold public
office. Prior to 1867, this legal incapacity of women to hold public office was recognized by Ontario, QC, NB and
NS. Therefore it should be presumed to be reflected in the BNA Act.
 Also, since 1867 much progress has been made on the issue of privileges and rights of women, but still no woman
has ever sat on the Senate nor was there any previous mention of such an idea.
 If the Imperial Parliament wanted to make such a significant departure from the status quo, they would surely have
used specific language to make its intention unmistakable. There is no such language in the BNA Act.
 “Persons” would include “female persons”, but “qualified” is used as a restriction to exclude women.
 Lord Brougham’s Act 1850 – stating that words importing masculine gender in all Acts shall be taken to also include
the female gender, unless contrary is expressly provided – does not apply to the present situation because “persons”
18
is not a word of the masculine gender.
 Even in the cases where masculine pronouns are used, they were used expressly to designate the male sex. Chorlton
v. Lings validated the idea that the departure from the common law legal incapacity of women meant that women
were not included in the meaning of “every man” in the statute.
 Concurring judgement by Justice Duff = there should be an adaptation over time where women are gradually
incorporated as they become more qualified
Ratio:
 “Persons” would include “female persons”, but “qualified” is used as a restriction to exclude women.
Comments:
-The basic idea was “framer’s intent” should be looked at and that the constitution should be interpreted in 1928 the
same way it was in 1867. –notion of ‘frozen rights’
-Privy Council later reversed this Supreme Court decision ---- where ‘Living tree’ metaphor would have been used
Edwards v. AG Canada [1930]
Issue: Does “qualified persons” in s. 24 of the BNA Act include women? Are women eligible for Senate appointment?
Held: Yes. Yes.
Reasoning:
 Although most of the external evidence, in the form of historical precedent, pointed toward the exclusion of women,
this is not conclusive, because it was derived from the customs and traditions of other times and places, not on the
law per se.
 As for the Act itself, the BNA Act, like all Constitutions, was drafted to develop according to usage and convention. As
a Constitution, the BNA Act, cannot thus be interpreted in the same rigid way as regular statutes.
 Lord Sankey – “The British North America Act planted in Canada a living tree capable of growth and expansion within
its natural limits.”
 The BNA Act needs a “large and liberal” interpretation.
 A textual argument can also be made based on the fact that ss. 41 and 84 had explicitly excluded women, whereas
s.24 had failed to do so.
 The word ‘person’ is ambiguous and may include members of either sex
Ratio:
 The “living tree” of the Constitution allows it to develop over time so as not to be bound to the customs and practices
of another time. The Constitution is to be interpreted in a large and liberal manner.
Comments:
There is a real tension between the desire for stability and the desire for change in constitutional interpretation evidenced
by Lord Sankey’s approach as opposed to that of the Supreme Court.
III.
Historical Perspectives and Developments
1. Pre-Confederation: History, Memory and Mythology
-
-
2 kinds of legal historiography
o Internal = tracing history through formal law –historical docs
o External = law in broader socio-ec content --- interplay b/w law and society
GAUDREAULT–DESBIENS –article p 57
o Identity narratives = subjective view of history, the stories we tell each other about our past – how we
understand selves and history (imagined past, imagined history)
19
Legal Plurality
- Layers –overlapping --- of French and British rule
- Clash when Brit took over already existing legal/gov structure
Royal Proclamation 1791
o Instructions for how to govern old French colongy
o Pledge to create a legislative assembly by which King lost prerogative to legislate for the colony by means of
proclamation -- prerogative divested to Parliament
o Brit L provided laws of conquered colony were supposed to continue until changed but Royal Proc nullified
this --- laws of England were imposed in civil and crim cases ---1774 Quebec Act revered this allowed civil L
but w recognition of ruling but w acknowledgment of system
How history has mediated lang, historical, and religious dif
- By accommodating
o Recognition of Ab communities as aut and self-governing --note all treaties Royal Proclamation in terms of
indigenous peoples –seen as root of modern day Ab rights ---denial of Terra Nullius
- By oppressing
o Acadia
 Acadia and NL ceded to Britain
 Caught in the middle of French British conflict
 Act for Quieting of Possessios to the Protestant Grantees of Lands formerly occupied by the French
Inhabitants --after deportation
 -basically rewrote the history of Nova Scotia rendering it uninhabited territory ‘discovered’ by the
Brit and therefore a colony of settlement and not of conquest ( which entailed – see Imperial
Statutes section)
 Denial of their rights
 Had to take an unqualified oath of allegiance which they did on condition that they wouldn’t have to
bear arms against France ---then another unconditional oath to be taken ---refused ----regardless
prior oath taken British weren’t convinced of loyalty---one conflict w/ only a minority of Acadians
supporting French –used as an excuse for deportation ---once deported then
o Terra Nullius – ‘nobody’s land’ –even though Indigenous peoples were here
Emergence / development of democracy in Can
- Eventual emergence of representative democracy
o Representative gov = refers to requirement that laws can only be made by a legislative body elected by
people
 Established in both Canadas
 Constitutional act 1791 --o this was the div of Quebec in to two provinces -- (((Div into upper and lower Can --structural const mechanism to ensure protection of a minority of English protestants
–and give them greater control ---so that they weren’t such a minority)))
o And the creation of legislative assemblies (members elected by population) and
legislative council (members appointed) for both provinces
o These two aspects occurred 28 years after initial pledge made by King in Royal Proc
1763
 Caused problems / power struggle b/w legislative assembly and legislative council --- rebellions --fervour for reform --- resulted in Lord Durham
20
o
-
Lord Durham --sent to Can to examine sit and report to Colonial Office and Imperial Parliament
 Proposed legislative union of the 2 Canadas and the institution of responsible gov
 Also attempted to deny dif and assimilate French
 Result was Union Act 1840 --- response to D’s suggestions
 Unified Upper and Lower Can
 Went beyond Lord D’s suggestions w/ provision that parliamentary representation of Upper
Can (now Can West) and Lower Can (now Can East) would be equal –but this violated
democratic principle of rep by pop s Can East was still more populous than Can West ----and
Can East was of course more French
 Merged public debts of former Upper and Lower even though debt of Upper was much
higher
 Declared Eng as sole lang of legislative assembly (soon proved to be unenforceable)
 Civil L prevailed in Can East in matters of private L
 Legislative council of new prov of Can remained unelected and contrary to Lord D’s
proprosal resp gov wasn’t instituted
Responsible gov ---(1848)
o How executive branch is accountable to legislature
 Executive branch made up of people also part of legislature
o Unique to parliamentary democratic system
o Eventually emerged in late 1840 as a cons convention
 Also Cabinet emerges - 1846
2. The Confederation Debates
-
-
Failure of Union Act = one of many factors leading to proposal that Brit N Am colonies forma confederation
Also arose out of convergence of internal and external circumstances
o Confed accomplished 3 things -- internal
 Reorganized internal gov of Can – in the pre-Confed sense of Ontario and Quebec
 United this entity w/ New Brunswick and Nova Scotia
 Provided for expansion of the federalized state westward
o External Strategic and ec motives
 Dealt w/ emergence of external threat to security –in form of US
 Reoriented trade east west rather than north south (so not so much trade w/ US?)
Very centralist concept of federalism = political authority from top down, w/ provs subordinate to Ottaw
Div of legislative powers (terms of union) = two levels of gov as sovereign w/in their jurisdiction
3. The Late Nineteenth Century
-
((for prohibion cases imp is approach to legal reasoning and federalism in articles
Judges and scholars faced for the first time task of interpreting BNA Act ---decisions invovled two large and
overlapping topics
Division of Legislative powers
- Privy Council came to be dominant –as final court of appeal and also that determined outcomes and doctrines w/
little or no restraint or respect for the Can courts
21
Federalism
- Federalism is a type of political system in which legislative power is divided between a central or federal legislature
and a number of state or provincial legislatures
- General nature and esp nature of the prov legislatures and executives
Pith and Substance
- determines the substance, essential character, dominant feature, or true meaning of the law. This involves
examining both the intended purpose of the law as well as the legal effect of the law on rights and obligation upon
the public --- in order to determine validity ---is the Act/law etc ultra vires
o Dif b/w form and substance (where substance might end up addressing completely dif matter than it would
appear to do in form ---see COLOURABILITY a la Morgentaler
o Basic structure of test = first understand what law means first then line it up w/ Const to determine if
consistent w/ Const
Ancillary / Incidental Effect Doctrine
- In many circumstances where a law is found to be valid under the pith and substance test the law may also have
some incidental or ancillary effects upon matters outside of the government's jurisdiction.
Prohibition Cases
- Sec. 91 = Legislative Authority of Parliament of Can
- Sec. 92 = Subjects of exclusive provincial legislation
- Liquor License Act – enacted by Ontario 1876 – transferred powers over liquor licensing from municipalities to newly
created Board of License commissioners appointed and controlled by prov gov, could limit numbers of licenses
- Canada Temperance Act 1878 – across nation, maj of voters in any city or county could opt to prohibit retail sales of
liquor –except where sales of quantities over specified minimums and also if existed good reason to believe liquor
was leaving city, county etc
Russell v. The Queen [1882] prohibition  P&S  incidental effects
Facts:
- Russell was tavern owner prosecuted for selling liquor in violation of terms of Can Temperance Act
Issues:
- Russell argued that this Act was ultra vires and thus invalid – so did it fall under any sections ofs.92 and thus
within province’s jurisdiction
Held:
- Act is valid, doesn’t fall under s. 92 – federal jurisdiction - Privy Council “an evil which is assumed to exist
throughout the Dominion”
Reasoning:
- Even though provinces regulate liquor licenses to generate revenue s.92(9) – rejected b/c federal statue isn’t a
fiscal law
- PITH AND SUBSTANCE of Can Temperance Act analyzed = to protect public order, safety, and morality (POGG) and
even though this has ANCILLARY / INCIDENTAL EFFECTS on property/civil rights (prov jurisdiction) this doesn’t
effect constitutional validity ---------most POGG laws will affect property/civil rights incidentally
- Provinces control issues of local and private nature s92(16) of this is rejected b/cthere should be uniform
legislature in all provinces and didn’t target any particular province
- Since doesn’t fall under s92—don’t have to discuss whether falls under s 91 b/c s.91 has residual powers (default)
-
(Sir Montague Smith uses 2-part test from Citizens Insurance v. Parsons for pith and substance)
Comment:
22
-
Note legal interpretation ---judges could interpret provisions of cont
Case contradicts Local Prohibition Reference
First instance PITH AND SUBSTANCE DOCTRINE used
First instance allowing overlap in fed/prov laws –where upheld as valid even w/ incidental effects on other
jurisdiction – ANCILLARY DOCTRINE
-
Right after Russell
(JCPC = Judicial Committee of the Privy Council )
Double Aspects Doctrine
- allows for laws to be created by both provincial and federal governments in relation to the same subject matter.
- Dif aspects of a single subject can fall under dif jurisdictions
- The origin of the doctrine comes from the Privy Council decision of Hodge v. The Queen (1883), where it was stated
that "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".
- Sheppard emphasis imp of this for eg. Child abuse where criminal L prohibits certain aspects of child abuse under
federal but then prov deals with child welfare etc and focuses on protection of child for eg.---even though this is still
technically dealing w/ a criminal matter
Hodge v. The Queen [1883]  Prohibition  double aspects doctrine imp of the provs
Facts
Issues
-
Was consolidation of 2 cases of liquor violations by Tavern owners
Hodge (and Frawley)
Frawley – b/c of violation was facing hard labour due to multiple infractions of Liquor Licensing Act
Hodge charged b/c permitted billiards to be played in tavern , contrary to regulations
Regulations made by Toronto license commissioner (b/c Act had aspect of delegation to municipalities)
Did prov gov have power to make such laws (under s92) or did it fall under “trade and commerce” (s91) ---is LLA
ultra viris
Do provs have authority to delegate? – Based on fact that Can legislatures were created by Brit parliament –they
were therefore delegates themselves not sovereign legislatures not free to delegate what had been delegated to
them ---responsibility can’t be transferred
Held
Reasoning
- Formalist reasoning –focussed on law and Const principals
- ASPECTS / DOUBLE ASPECTS DOCTRINE – Lord Fitzgerald asserts that just b/c of Russell doesn’t mean that provs
don’t have jurisdiction
- DELEGATION – issue of structure(s) of authority – decision was that provs weren’t just recipients of power but
were actual entities w/ authority due to powers conferred in s 92—within limits set out in s92 = EARLY
ARTICULATION OF VISION OF CAN FEDERALISM
Comments
- Contrast to Russell where Ontario legislation was upheld
- IMP IS DOUBLE ASPECTS DOCTRINE (where dif aspects of liquor trade falls under dif jurisdictions) AND THAT
PROVS HAVE AN IMP ROLE TO PLAY
23
National Dimensions Doctrine
- The "national dimensions" (originally called "national concerns") doctrine was an alternate means of applying the
POGG powers that found use in the mid 20th century (also see anti-Inflation act for most recent incarnation) . It
allowed Parliament to legislate on matters that would normally fall to the provincial government when the issue
became of such importance that it concerned the entire country.
- Matter that is of local dimension that might potentially extend to become nationally relevant
- Originated from Lord Watson in Local Prohibition Ref
- So aspect of POGG
o POGG = is often used to describe the principles upon which that country's Confederation took place.
o it defines the principles under which the Canadian Parliament should legislate.
o Specifically, the phrase appears in section 91 of the Act, which is part of the block of sections that divide
legislative powers between the federal and provincial levels of government. In section 91, the phrase
describes the legal grounds upon which the federal government is constitutionally permitted to pass laws
that intrude on the legislative purview of the provinces.
o it is from POGG that the Canadian Parliament may legislate and invoke emergency powers
Doctrine of Federal Paramountcy
- Federal trumps
- Enactments of parliament override prov legislation
AG Ontario v. AG Canada (The Local Prohibition Reference) [1896]  POGG narrowed 
paramountcy articulated
Facts
- In 1890, the Ontario had passed a statute which gave municipalities the power to introduce prohibition (similar to
the Canada Temperance Act). In 1894, while contemplating total prohibition, Ontario asked the courts about the
legality of pieces of legislation.
Issues
- Does prov have authority to legislate prohibition?
Held
- SCC – No JCPC – Yes – in the absence of conflicting federal legislation a prov possess the jurisdiction to prohibit
manufacture of liquor within the province – as long as it remains a local matter
Reasoning
- Text- based legal formalism
- SCC relied on 91(2) “trade and commerce” and also arg of historical/framer’s intent while JCPC found that
prohibition cannot equal regulation of trade
- Lord Watson found that prov legislation fell under “property and civil right” and “local or private nature”
- Watson separates POGG from enumerated s. 91 powers -- says that last paragraph of s. 91 excludes those general
powers (POGG) from affecting the local and private matters enumerated in s. 92. ---that POGG applies only to
matters “unquestionably of a Canadian interest and importance” and could not encroach upon enumerated s. 92
powers. (Anything else would undermine provincial autonomy and negate framer’s intent to give provinces some
autonomy).
- Watson articulates PARAMOUNTCY DOCTRINE - that if there is “collision,” “provincial must yield to Dominion
legislation.” But found no conflict since it was possible to comply with both laws by complying with the stricter of
the two
Ratio:
Provinces cannot usurp federal powers via the exercise of jurisdiction over local matters, but they may make
extra provisions to deal with strictly local issues. POGG cannot justify incidental effects.
Comments:
24


This case represents an important turn toward provincial rights, and away from overlap (towards WATERTIGHT
COMPARTMENTS). Watson’s use of s.92(16) “local or private nature” elevates it almost to the same status as POGG.
POGG NARROWED AND DEFINED (NATIONAL CONCERN AND EMERGENCY POWERS FIRST ARTICULATED).
PARAMOUNTCY first articulation.
Dif. Views/theories of Federalism
- Note – The nature of federalism
o View of Can federalism that stresses the aut of the two levels and the div of issues in relation to particular
jurisdiction
o National unity and state independence reconciled by 3 characteristics of developed federalism
 Supremacy of const
 Distribution among bodies of gov
 Authority of Courts to act as interpreters of Const
- Note – The Compact Theory
o Theory that colonies made compact creating Dominion and that provs didn’t renounce any power in confed
and the compact didn’t create new powers just created a gov to deal w inter-prov issues
o This goes against prevailing interpretations which see Const as fundamental starting point –and fell out of
currency in Common L ---but in Quebec is still powerful part of Const beliefs ---inQuebec the compact has
continued to be a powerful part of const beliefs but its hold among common law lawyers began to fade in
the late 1880s
- Note – The Power of DISALLOWANCE
o Expressed in s.69 and 90 in Const 1867 where Gov Gen, acting on advice of fed cabinet, to reserve up one
year and then disallow (veto) any enactment of the prov legislature
o Didn’t work well w compact theory of federalism
o Used following Confed to disallow prov Acts which appeared unjust or opprerssive
o **eg of strong centrist vision of the BNA Act
RISK
-
-
Legal reasoning were using at time (late 19th cent)
o Textual analysis --o Precedent
o ***Risk says legal reasoning and interpretation of Privy Council was fairly formalistic and not connected w.
social reality etc (PC concern w/ protecting provinces)
 That Local Prohibition Ref (held in favour of prov s) threatened fed. residual power under POGG
 Move towards watertight compartments and away from overlap—limits of jurisdiction –threatened
talk about the meaning of Can (so these limits of jurisdiction as opposite drafter’s intent) –((Shepard
doesn’t agree w/this))
 Risk says disconnect b/w legal reasoning and politics in late 19th cent but Sheppard counters this w/
reference to DISALLOWANCE ---where see interconnection b/w political and executive and judicial
that hadn’t been present before (related to his view of Privy Council’s disconnection)
Privy Council had dif view of federalism than drafters of Const (centralist vs federalist/decentralized view w/ provs
as aut entities) ---so Priv C more for aut entities
25
Interception b/w Const interpretation and regulatory rules of state
- When federal level laws etc are struck down by provincial jurisdiction issues can have a problem as there may not be
a jurisdictional conflict in another province which could = GAP IN REGULATION
Barrett v. City of Winnipeg [1891]  paying twice for both pub and priv school
The Manitoba Schools Question – (p117)
- In 1870, Manitoba entered into Canada with a large majority of Francophone Roman Catholics. Manitoba was
guaranteed provincial jurisdiction rights over education, as a way of protecting local identities and majorities.
- The problem occurred at the time of confederation, when a huge influx of Protestant Anglophones settled in
Manitoba and became a majority. The RC minority was forced to choose to send their children either to
Protestant schools or to pay for separate schools.
-
In 1890 MN legislature passed the (Public School’s Act??) Department of Education Act to amalgamate school
boards to a single, secular (effectively Protestant) free school system (paid by rate-payers) and the Official
languages Act that made EN the official language.
o Roman Catholics were forced to choose bw paying for both public schools and private schools or just
sending kids to public
o **Barrett argued it prejudicially affected the denominational school rights of Roman Catholics by
requiring them to contribute twice: to free schools and to their own system.
Issue
- Is Public Schools Act ultra vires?
Held
- SCC = Yes JCPC = No
Reasoning
Barrett v. City of Winnipeg [1891], 1 SCR 374
 Federal Public Schools Act required students to pay to attend Roman Catholic schools.
 Barrett argued prejudice in requiring Roman Catholics to pay twice to attend school of their religious denomination.
 SCC ruled in favour of Barrett, and held Public Schools Act to be ultra vires.
 Decision reversed by JCPC (when Anglicans also demanded school funding): “it is not the law that is in fault”, but due to
religious convictions “members of the Church of England find themselves unable to partake of advantages which the law
offers to all alike”
Brophy v. Attorney-General of Manitoba [1894], 22 SCR 577
 SCC followed JCPC’s decision in Barrett and ruled against RC minority
 JCPC reversed – found that “rights and privileges of RC existing before 1890 had been affected”
Comment:
 JCPC reinforces the classical notion of a negative freedom – non-interference is the equivalent of freedom.
 After JCPC, federal cabinet referred questions to SCC asking whether Roman Catholic minority could appeal to the
federal cabinet because a right or privilege in relation to education had been affected by the 1890 Act.
o SCC ruled that GG (cabinet) had no remedial authority to exercise: MN has absolute powers over its own
legislation, unless restrictions of its rights are expressly stated in Constitution Act.
o JCPC reversed this decision in finding that RC minority rights existing before 1890 had been negatively
affected – ruling was related to ability of legislature to repeal rights. Brophy [1895] AC 209
o (I think at this point Manitoba’s rights were going to be overwritten)
 Before federal government could enact remedial legislation, federal election called.
 Laurier won, pursued a strategy of conciliation and negotiated settlement rather than confrontation with the province
where local affairs would have to be meddled with.
4. The Early Twentieth Century: Limiting Federal Powers
-
Note shift in cases up through Great Dep
26
-
-
Back to Risk’s criticism of Privy Council’s support of certain amount of prov aut. ----in early cases see imbalance b/w
federal spending power vs that of prov govs ----had power but no money ---led to fed gov’s power through spending
/ allocation ‘w/strings attached’
(so in the end Privy Council wasn’t so detached from reality ---confused so privy council supported watertight
compartment/spheres right?)
Watertight Compartments (view/approach to federalism)
- This era –further development of this approach in continued effort to protect prov jurisdiction from fed
encroachment
o Exclusive spheres of jurisdiction
o Sometimes referred to as classical approach
o Leaning towards formalism
o Privy Council favoured this
o vs OVERLAPPING JURISDICTIONS
o note some of the prohibition cases had this and it was problematic where as at this point very accepted
LORD HALDANE ON “LORD WATSON” (P123)
- that his function had been “to fill in the gaps which parliament deliberately left in the skeleton consts and laws it has
provided for the British Colonies”
- The Constitution Act 1867 had given separate legislatures and executives to the Provinces but had not defined their
relationships to Parliament of the Dominion.
- Two views: Parliament paramount v. co-ordinate federalism (separate but equal). Watson aimed to establish the
second. (watertight compartmenty!!)
- AG Canada v. AG Alberta (the Insurance Reference) 1916, considered constitutionality of the Dominion Insurance
Act, which sought to regulate large insurance companies carrying on business across the country.
o Haldane found the Act ultra vires because it deprived individuals the liberty to carry on the business of
insurance.
o While insurance is an important business, it could not be upheld under POGG as having become of so
important to be of a national dimension.
- refers to Russell and Hodge as having illustrated the principle “now well established, but which notnetheless ought
to be applied w great caution , that subjects which in one aspect and for one purpose fall within the jurisdiction of
the priv Legislatures may in another aspect and for another purpose fall within Dominion legislative jurisdiction =
DOUBLE ASPECT DOCTRINE
Toronto Electric Commissioners v. Snider [1925]  limitation of trade and commerce power
 emergency nature of POGG
Facts
-
-
Industrial Disputes Investigation Act was enabled fed government to act as neutral third party and mediate
between capital and labour in disputes related to certain sectors with more than 10 employees. During mediation,
no striking or lockouts.
A labour dispute arose between the Toronto Electric Commissioners and some of its employees. The TEC argued
that the federal Industrial Disputes Investigation Act was ultra vires.
Issues
- Could the legislation in question be justified by “trade and commerce” and “criminal law”?
- Is the Act ultra vires (if above no?)
Held
- No
- Act is ultra vires
Reasoning
27
-
JCPC: Lord Haldane found that the pith and substance of the legislation was property and civil rights.
He limited the trade and commerce power, declaring that it could only be used “in aid of” other s.91 powers.
He also emphasized the emergency nature of POGG and narrowed Russell by saying that the courts must have
considered intemperance to be a national emergency at the time.
Ration
- LABOUR RELATIONS IS PROVINCIAL JURISDICTION
- POGG ONLY APPLIES IN URGENT SITS
-
-
In wake of Snider ----critiques
SMITH ----P146
imp of historical consideration ---and drafter’s intent ----esp for POGG
suggests no one imagined that POGG would only be used as a reserve power only in event of war, pestilence or
similar calamities (referring to Snider)
MALLORY ---P147
Sees link b/w Snider and anti-regulation philosophy –move towards laissez-faire ---following a consistent pattern of
19th cent liberalism
That Const case law increasingly becoming a reflection of conflict b/w non-interventionist vs regulatory state ---and
b/w two visions of federalism (watertight and overlap??)
CAIRNS P149
Federalism cases fostered aut of provs (as per Sheppard) ---consciously did this
Responded to changing society
For Haldane – decentralization was essential --but agreed w/ Laski (leading figure of political pluralist movement in
the Uk) –that highly centralized control may be essential in wartimes (hence his harrowing of POGG to such
situations!)
Haldane argued that true source of sovereignty is public opinion which lay behind the institutional apparatus of
state and society
5. The Depression and the New Deal: Legal Responses
Overlapping Jurisdictions (view / approach to federalism)
- where federalism is how we manage overlap
- Themes of these cases ---recognition of overlap
SIMEON AND ROBERTSON P163
-
basically that neither Bennett nor King govs substantially improved the conditions of working and unemployed indivs
‘sociological jurisprudence’
(also see excerpts of these Can constitutional scholars) – Kennedy and Scott
o
o
o
All widely condemned judicial decisions of JCPC during depression era, who endorsed traditional 19th c.
liberalism that frowned upon state intervention
Suggested that court was completely out of touch with needs of modern government, needs of citizens,
effects of economic crisis
What was needed was strong central government to provide economic and social policy leadership needed
in modern concept.
28
AG Canada v. AG Ontario (Labour Conventions) [1937]  Div of powers
Facts
-
Wake of New Deal (US) Can gov tried to bring in Can version –all sorts of regulations etc to fix ec.
Ref about validity of Hours of Work Actm Weekly Rest in Undertakings Act, Min Wages Act
Trad labour is a prov issue
Provs feared for their aut and opposed use of this power
Canada entered into International Labour Org treaty and this was an initiative of fed gov to implement –as
treaties have to be implemented w/ domestic law in order for them to be valid
Issues
- Could fed gov use s. 132 to enact legislation w/in a prov sphere in order to implement international conventions
signed?
Held
- SCC – Split, JCPC – No
Reasoning
- DIV OF POWERS
- Under s.91 s92 there’s no such thing as treaty legislation provisions??
- Lord Atkin –makes famous watertight compartments statement ---where these are retained even when in foreign
waters as essential parts of her original structure
- Narrow interpretation of Const Act
- Reliance on POGG rejected byAtkin as only applies in emergencies---and this wasn’t one (but what if it were??)
- Ultra vires
Comments
- Sets precedent for how international treaties implemented in the future –still today
AG Canada v. AG Ontario (The Employment and Social Insurance Act) [1937]  narrow POGG
interpretation  seeds of spending power jurisdiction
Facts
- Fed gov provided compulsory unemployment insurance
Issue
- Is fed Employment and Social Insurance Act valid ultravires
Held
- SCC – no JCPC – No
Reasoning
- Davis J dissents ---characterizing Act’s pith and substance as under taxation and thus justified under 91 (3) –where
no const restrictions on Dominion spending money for the benefit of citizens
-
Lord Atkin gave narrow interpretation for fed gov powers –and POGG ----essentially ruling that Great Dep is not an
emergency and attempt to provide relief is ultra vires
- Encroaches on civil rights w/in provs
- Lord Atkin said that the federal gov can’t use its spending power to entrench on areas of prov jurisdiction
Comments
- Case articulates seeds of SPENDING POWER JURISDICTION (is this the disjunction b/w power and money thing?)
- NO
SIMEON AND ROBERTSON P
- suggest that Privy Council almost paralyzed Dominion as an agency for regulating ec activity as it had practically no
jurisdiction over labour, price etc etc except for in wartime
29
-
-3 scholars (aforementioned –Kennedy and Scott) –very dissapointed w/ Privy Council decisions ---suggested
o Repeal BNA Act
o Completely rewrite the Const
o Provide reasonable and workable constituent mat
o Abolish all appeals to JCPC
LEDERMAN
- argues that at heart of Can was balanced federalism --- balance b/w unity and diversity and b/w a strong Dominion
and aut provinces
-
IV.
(decentralization = more watertight compartment-y)
Now modern –more back to overlapping
Modern Constitutional Interpretation: Federalism, Formalism and
Functionalism
1. The Modern Canadian State: Governance, Visions and Values
-
-
Major shifts post WWII
o Rise of the social-welfare state w/ development of many gov programs and greater gov involvement in
reguations
 Even though gov was regulated in doing this didn’t effect them much
o Rise of executive federalism
o 60s, 70s --emergence of critique of “big gov” (centralist) w/ neo-liberal and neo-conservative critiques --push for decentralization Ralph Klein, Mike Harris
o Then post-neo-liberalism – eg Bill Clinton, Tony Blair
Watertight compartments didn’t work as well in practice so move to CO-OPERATIVE FEDERALISM
NORRIE, SIMEON, KRASNICK P 187
-
Increase in shared overlapping jurisdictions – mostly imp is just that distinction b/w jurisdictions has been blurred --result of 4 processes
o Projection of federal concerns into prov matters through spending power
 Eg w/ implementation of Can welfare state, Trans Canada hwy
 To a lesser extent provs have extended into fed affairs through involvement in international
activities etc
 Taxation ---equalizing aspect b/w prov ---also overlap in field of revenue raising----provs used to rely
on direct taxing and fed gov on tariff (not available to provs) now both rely on both
 New policy areas not covered by BNA Act -- increased concurrency
o Breakdown of clear div for responsibility allocation
 Both cause and consequence of increased concurrency
 2 rationales for allocation built into BNA Act
 Local vs national,Prov vs fed
o Many overlaps eg military bases managed federally but located w/in prov
boundaries ----or national parks
 Ec matters (fed) and sociocultural matters (prov)
o ((Ev of div of powers
 Motivated by broad trends such as increasing and changing imp of international influences
30
o
 Focus on Keynseian
 Greater politicization of society –and changing expectations demands of citizens))
((Community concerns ---pulling both directions and further blurring distinction
 Greater focus on fed –w/ strong sense of Can identity after war ----but also calls for prov aut –eg in
Quebec
 Increasing interaction b/w fed and prov gov
 = EXECUTIVE FEDERALISM = relationship b/w elected and appointed officials representing fed and
prov govs
 Helped reship allocation of functions under Const’s distribution of powers)
SIMEON P 198
-
3 rationales/criteria for approaching changes to federalism (Simeon article)
o Conceptions of community
 Single pan-Can vision vs vision of union of prov communities vs vision of two distinct national
communities each w/ full sovereignty
 Tension b/w wanting protect Can unity and pan-Canadianism and wanting to protect distinct
identities
o Functional perspective
 Does it enhance or frustrate the capacity of gov institutions to generate effective policy and respond
to citizen needs
 Like div labour criteria – what level can most efficiently carry out task
 Maximizing effectiveness
 Arg of too high decision costs w/ sharing and overlapping responsibilities
 FR Scott, Kennedy, and co. making this perspective
o Democratic perspective
 Does federalism promote democracy ---so effects on participation, responsiveness of gov, liberty,
and equality
 Dif aspects
 Concern w/ protecting citizens from gov –minimize possibility of tyranny of maj –federalism
as device to place limits on gov- fragmenting power prevents tyranny –but a lot of faith
being placed on institutions
 Vs greater responsiveness and citizen participation w/ smaller units of gov (but how small
are provs really)
 Arg that executive federalism where relations b/w govs are conducted primarily through
negotiations of political executives – limits citizens participation and effectiveness and LIMITS
ACCOUNTABILITY
 Critique that federalism frustrates maj rule ---or frustrates national majorities (w/ split b/w ridings
rather than concentration in areas )
 Would minority groups have same influence on prov level or better to focus on national
group (eg of women’s rights ---strong in Quebec so good here to focus on prov –or would
focus on national group be better)
Three types const challenges = validity/ultra vires, applicability, inoperability
2. Assessing the Validity of Laws (Ultra vires)
-
Challenge to validity of statute
31
-
o It’s PITH AND SUBSTANCE
o Beyond jurisdiction of gov--- either prov or fed
To assess
o ((Always start w/ legislation when challenging a law/statute, not Const))
o Interpretation of law /statute that is being challenged
SWINTON

What’s the PITH AND SUBSTANCE –
 the ‘matter’ of the statute ---Stated (purpose of enacting body) and Actual (legal effect of
law ) (eg Morgentaler) ---COLOURABILITY –
 also the SCOPE it will have --also note DOUBLE ASPECT DOCTRINE here
 Determination of which class (HEAD OF POWER) (which aspect of s 91 or s 92) it falls under
---the CONSTITUTIONAL PROVISION
 Most imp is analyze purpose and analyze effect ---under appropriate head of power
LEDERMAN
-
Rule of law for the purposes of the distribution of legislative powers is to be classified by that feature of its meaning
which is judged the most imp one in that respect
Colourability doctrine
imp of total meaning – COLOURABLE LAW is one which really means more than or is dif from what words appear to
at first express
R V. Morgentaler [1993]  P&S  Colourability
Facts
-
In 1988, the SCC ruled that Criminal Code provisions relating to abortions were unconstitutional;
Dr.M announced that he was planning to open a private abortion clinic in Halifax;
Nova Scotia enacted legislation that :
1)prohibited abortions by private clinics and
2)denied insurance coverage for abortions at private clinics; Dr. M was charged with 14 counts of violating the
Medical Services Act;
Dr. M did not contest the facts, but rather argued that the legislation under which he had been charge was ultra
vires because it encroached on Parliaments exclusive criminal law jurisdiction - s. 91(27).
Issues
- Was Act’s purpose w/in heads of prov power
Held
- No real purpose of Act was to prevent abortion, criminal law, so ultra vires
Reasoning
- Court found that pith and substance related to criminal law –actual purpose was to prevent performance of
abortion -----------Sopinka finds that --- effect was creation of a criminal offence and crim isn’t prov head of power
= ultra vires (even though under double aspect doctrine prov can deal w/ aspect of criminal prohibitions but they
can’t do for purpose that isn’t distinct from crim law—under fed—and here was essentially reproducing defunct
criminal legislation
- Law prohibits abortion clinics under guise of protecting health services (COLOURABILITY) ---disjunction b/w stated
and actual purpose
- ‘Beyond the 4 Corners of the Legislation"
32
Canadian Western Bank v. Alberta [2007]
Facts
Issue
-
Provincial consumer protection legislation regulating the sale of insurance
Chartered banks operating under the federal Bank Act
Selling and promoting insurance
Can prov consumer protection legislation regulating sale of insurance apply to banks insurance sales since banks
under federal
Is insurance sale a necessary part of banks activities (but this applies to interjurisdictional immunity arg--- should
they have interjurisdictional immunity)
Held
- The Alberta Insurance Act is valid
- No (no)
Reasoning
- Pith and substance of Alberta Insurance Act is a matter of property and civil rights
-
Double aspects doctrine –some inevitable overlap
Incidental effects – if there are some resolve by firmly applying pith and substance analysis ---so even if pith and
substance is ok --- in certain circumstances, certain powers of one level of gov must be protected from intrusion
by other level ---gives rise to 2 more doctrines
-
Interjurisdictional immunity
-credit related insurance isn’t a vital or essential element of the banking undertaking so no interjurisdictional
immunity
Paramountcy
-doesn’t apply b/c a)no operational incompatibility b)no frustration of federal purpose
-
Reference re Employment Insurance Act [2005]  P&S
Facts
Issue
-
Employment Insurance Act allows woman who is not working b/c she’s pregnant and a person absent form
workplace to care for a newborn or adopted child, to receive employment insurance benefits
Quebec believes encroaching into prov heads of power (civil?)
(Gov of Quebec) submitted question as to constitutional validity of s22 and s23 of the Employment Insurance Act
– is it ultra viris
Held
- NO
Reasoning
- Pith and substance analysis –method for replacing income during interruption of work
- -can it be fit under this head of power =
- Expansive def’n of unemployment insurance so cover’s mat leave
- Idea that mat leave is matter of benefit to society as whole, not private local matter, but matter of public policy
- Living tree analysis of const provisions as this wouldn’t have applied at the time
Comment
- No mention of incidental effects on prov or overlapping jurisdictions
Necessarily Incidental or Ancillary Doctrine
- Extension of idea of incidental effects
- When there is some overlap and it has been deemed secondary or incidental and is thus acceptable –
33
-
Where certain aspect of statute overlaps but whole thing is constitutionally valid
-allows intrusion
But depends how well offending provision is integrated into valid legislative scheme
Necessarily incidental doctrine, like pith and substance doctrine, allows gov to intrude substantially on other level of
gov’s jurisdiction
o
o
o
Test
Large or small intrusion
Is act valid as a whole –intra vires in terms of pith and substance
If offending provision is invalid is it significantly related or integrated to piece of legislation to justify
incursion - sliding scale analysis
General Motors of Canada Ltd. v. City National Leasing [1989] necessarily incidental
Facts
-
Combines Investigation Act (now Anti-Competition Act)
CNL brought suit against GM alleging that latter engaged in anti-competitive behaviour violating fed act
GM said Act was ultra vires b/c it allowed a civil action in violation of prov jurisdiction over ‘property and civil’
rights
Reasoning
- Necessarily incidental ? -Small intrusion yes , act valid as a whole, imp part of greater scheme
- Dickson introduces sliding scale analysis = if impugned provision interferes significantly w/other level of gov’s
jurisdiction then the fit w/ regulatory scheme/objective has to be close (has to be necessary to regulatory
objectives
Comment
- Dickson sets out necessarily incidental test
- Could have used necessarily incidental analysis rather than pith and substance in Unemployment Insurance case
where question whether s 22-23 necessarily incidental
Double Aspect Doctrine
- Broad areas of subject matter might have areas that resonate at both levels
- Sheppard gives eg of child abuse
LEDERMAN
-
Legislative acts are seen as equally valid under federal and prvo heads of power
But in case of conflicting legislation ---paramountcy applies ---but where no conflict where the effects of the
legislation are not in competition—they may cumulative effect
Multiple Access Ltd. V. McCutcheon [1982]  Double aspect doctrine  paramountcy
Facts
-
Securities
Insider trading
2 pieces of legislation ---Ontario Securities Act for regulating insider trading in TSE, Canada Corporations Act
regulating insider trading
- Both controlling insider trading
- Shareholder brought action against MA alleging insider trading under Ontario Act and MA said no I’m under
Canada Corporations act (was advantageous to them this way)
Reasoning
34
-
Dickson suggests examining both fed and prov acts for validity , if both are valid then we’ll check paramountcy
Dickson also highlight fact that if fed act struck down there would be some provs left w/ no regulation –
REGULATORY GAP
- Can corporations Act comes under fed power for insider trading
- Ont Act regulates an aspect of property and cvl rights so also valid
- Dickson quotes Lederman that overlap is positive thing
- Insider trading provisions are equally imp to both regulatory schemes so not easy to make trump the other
- Uses narrow interpretation of each so no conflict
Comment
- Eg of DOUBLE ASPECT DOCTRINE –AND PARAMOUNTCY EG
Classical vs modern paradigm
RYDER
-
Many see classical paradigm as watertight compartments/exclusive spheres and modern as overlap but see can see
overlap as early as w/ confed cases
Says may be bad for prov aut b/c of federal paramountcy
Suggests exclusive spheres approach has a greater risk of REGULATORY GAPS occurring
3. Applicability: Interjurisdictional Immunity Doctrine
-
-
About scope of jurisdiction --- when we should limits the application of prov statutes to protect the exclusivity of
certain fed entities / aspects of fed heads of power
Lack of reciprocity in terms of limiting application of fed statutes
Allowing for exemptions from prov jurisdiction ---guards against regulatory gaps
Dealt w/ initial concern of paralysis of federal entities by provs
First came into play in dealing w/ federally incorporated companies
This doctrine never challenges the validity of the law itself, just its application to federal entities
Test developed in Bell 1 and Bell 2
o Does it affect vital/central/ essential element of fed undertakin
o WITH CANADIAN WESTERN BANK AFFECTS CHANGES TO ‘IMPAIRS’’
Also covers aboriginal title, possession rights to reserve property or matters at the heart of aboriginal identity, and
political rights pertaining to federal elections
Seems at odds w/ overlap tendency
Bell #1 (Commission du salaire minimum du Quebec v. Bell Telephone [1966] 
interjurisdictional immunity
FActs
- Bell rejects provisions of Commission that as a federal undertaking pro
- Absence of competing federal legislation
Held
- Prov legislation was struck down but only in relation to federal undertakings
Comments
- INTERJURISDICTIONAL IMMUNITY
- SCC effectively broadens test used in past to protect fed undertakings where rov laws could affect them insofar as
they didn’t result in ‘sterilization’ or impairment’
The Bell #1 case in 1966 had stated that a valid provincial law (in this case, minimum wage legislation) could not apply to
federal undertakings if it affected a vital part of their operation or management
HOGG
35
-
Points out that pith and substance could be used instead
Or could allow prov legislation to operate in absence of fed legislation and then upon fed legislation enactment
allow paramountcy to apply where dif measures are desired
Courts could read down provisions of enactment that are thought not applicable to federal endeavours
McKay v. The Queen [1965]  signs on laws for fed election  interjurisdictional immunity
Facts
- Federal election, indiv but sign on lawn and municipal bylaw against signs on laws
- Fed gov finds this inappropriate when dealing w/ fed elections since even provs can’t do this
Result
Judges read down the municipal by-law so as to limit its impact to signage not related to federal elections
Comment
- Since advent of charter, courts have no longer needed to rely on interjurisdictional immunity to protect rights
such as involvement in fed electoral campaigns
Bell #2 (Commission de la sante et de la securite de travail v. Bell Canada[1988] 
interjurisdicitonal immunity
Facts
- Case was a trilogy involving health regulations, labour relations and working conditions
- Quebec Commission reassignment protection for pregnant employee at Bell Canada
- Normally would be under prov jurisdiction as a matter of ‘local or private nature” and “health”
Holding
- SCC rules that such legislative enactments couldn’t be applied b/c was a a federally incorporated company—would
have to be regulated by federal legislation on working conditions and labour relations
-
Since working conditions and labour relations are essential part of undertakings Quebec Act cannot apply
-
INTERJURISDICTIONAL IMMIUNITY
Irwin Toy case –interjurisdictional immunity
-
Quebec laws directed at prohibiting advertising directed at children under 13
Irwin Toy contested by saying that law that you can’t put adds on tv but telecommunications is regulated by
federal…….
INTERJURISDICTIONAL IMMUNITY
************************************
36
Canadian Western Bank v. Alberta [2007] insurance sale  interjurisctional immunity
Facts
Issue
-
Provincial consumer protection legislation regulating the sale of insurance
Chartered banks operating under the federal Bank Act
Selling and promoting insurance
Can prov consumer protection legislation regulating sale of insurance apply to banks insurance sales since banks
under federal
Is insurance sale a necessary part of banks activities (but this applies to interjurisdictional immunity arg--- should
they have interjurisdictional immunity)
Held
- The Alberta Insurance Act is valid
- No (no)
Reasoning
- Pith and substance of Alberta Insurance Act is a matter of property and civil rights
-
Double aspects doctrine –some inevitable overlap
Incidental effects – if there are some resolve by firmly applying pith and substance analysis ---so even if pith and
substance is ok --- in certain circumstances, certain powers of one level of gov must be protected from intrusion by
other level ---gives rise to 2 more doctrines
-
Interjurisdictional immunity
-credit related insurance isn’t a vital or essential element of the banking undertaking so no
interjurisdictional immunity---NOT CORE ASPECT JUST SUPPLEMENTARY SERVICE OFFERED ---TEST SHIFTS TO
IMPAIR RATHER THAN AFFECT (BELL #2)
-
IF YOU EXPAND INTERJURISDICTIONALY IMMUNITY COVER ENTITIES LIKE BANKS YOU COULD UNERMINE DOCTRINE
PROTECTING CONSUMERS
- Like Bell 2 if prov laws struck down there would be REGULATORY GAP
- Paramountcy
-doesn’t apply b/c a)no operational incompatibility b)no frustration of federal purpose
Comments
- NOTE THAT THIS CASE GREATLY LIMITS THE IMPACT OF INTERJURISDICTIONAL IMMUNITY
- SUGGESTS THAT FEDERAL PARAMOUNTCY BETTER ABLE TO RESPOND TO JURISDICTIONAL OVERLAP THAN
INTERJURISDICTIONAL IMMUNITY
4. Operability: The Paramountcy Doctrine
-
Only arrive at paramountcy if have two valid laws
Operability of prov statutes –even if valid and applicable ---will be inoperative if conflicts w/ a valid fed statute that
applies to the same facts
= FEDERAL PARAMOUNTCY RULE –protects primacy of fed policies embodied in valid fed legislation
Frustration of federal purpose?
As w/ interjurisdictional immunity ---increased narrowing of paramountcy doctrine ---courts would rather find both
laws operable
Main difficulty consists in determining the degree of incompatibility needed to trigger the application of the doctrine
of federal paramountcy
To interpret incompatibility broadly = expands powers of central gov , narrow interpretation = prov govs have more
latitude
37
Test for paramountcy
o 1)Dual compliance -- Can you comply w/ both laws – yes = operable then
o 2)Frustrating federal purpose
 Even though both laws can be complied w/ ---might not make sense ----by complying w/ both might
actually be frustrating federal purpose (eg Bank of Montreal v. Hall)
o Today test is based on the IMPOSSIBILITY OF DUAL COMPLIANCE
-
-
-
Current trend moving towards notion that if prov goes further than fed this is ok (I assume if going further is still
good for public)
o Eg T0bacco, Ross, Employment Ref
As w/ interjurisdictional immunity, onus is on the party relying on the the doctrine of federal paramountcy to
demonstrate incompatability of laws by establishing impossibility of dual compliance or frustration of dual federal
legislative purpose
Explicit rules for dealing w/overlapping jurisdictions
o Ag and immigration –joint jurisdictions –but only to extent that prov legislation doesn’t isn’t repugnant to
fed legislation
o Export of natural resources by provs to other provs --fed paramountcy again in case of conflict
o Old-age, disability, and survivor pensions, and supplementary income programs are joint but PROVINCIAL
PARAMOUNTCY (see motor vehicle violations cases
Ross v. Registrar of Motor Vehicles [1975] driver’s license suspended federal
paramountcy
Facts
- 1972: Ross convicted of DUI under s. 234 of Criminal Code and allowed for intermittent driving (license was not
suspended). s. 238(2) provides that order be sent to Registrar of Motor Vehicles
- Registrar of Motor Vehicles in Ontario suspended license for 3 months under s.21 of Ontario Highway Traffic Act (first
offence – 3 months; second offence – 6 months)
- Ross instituted an action claiming s. 21 HTA was inoperative because of conflict with s. 238 of Criminal Code and that the
suspension of his license was of no effect.
- RMV responded that s.238 was ultra vires.
Issues
(1) Is the provincial legislation (s.21 Ontario Highway Traffic Act) valid?
(2) Is the federal legislation (s.238 Criminal Code) valid?
(3) If both are valid, is there conflict between the two provisions requiring application of the rule of federal paramountcy,
making the provincial rule inoperative?
Held
(1) s.21 of the OHTA comes within subject of licensing and is thus intra vires the provincial legislature.
(2) Section 238 of the Criminal Code is public penal law and thus intra vires the federal legislature.
(3) Both pieces of legislation are valid and are not in conflict. Both legislations may fully operate simultaneously, even if
this means that “the person concerned gets no benefit from the indulgence granted under the federal legislation”
(257).
Comments
- Prov going further than fed. ---dual compliance (plus)!
38
Multiple Access Ltd. V. McCutcheon [1982]  dual compliance (passes paramountcy test –
operable)
Facts
-
Securities
Insider trading
2 pieces of legislation ---Ontario Securities Act for regulating insider trading in TSE, Canada Corporations Act
regulating insider trading
- Both controlling insider trading
- Shareholder brought action against MA alleging insider trading under Ontario Act and MA said no I’m under Canada
Corporations act (was advantageous to them this way—as under federal limitation period for initiating action had
passed)
Reasoning
- Dickson suggests examining both fed and prov acts for validity , if both are valid then we’ll check paramountcy
- Dickson also highlight fact that if fed act struck down there would be some provs left w/ no regulation –
REGULATORY GAP
- Can corporations Act comes under fed power for insider trading
- Ont Act regulates an aspect of property and cvl rights so also valid
- Dickson quotes Lederman that overlap is positive thing
- Insider trading provisions are equally imp to both regulatory schemes so not easy to make trump the other
- Uses narrow interpretation of each so no conflict
- Fed legislation duplicates –no conflict = DUAL COMPLIANCE
Comment
- Eg of DOUBLE ASPECT DOCTRINE
- Also eg of passing PARAMOUNTCY TEST so = OPERABLE and also DUAL COMPLIANCE
Bank of Montreal v. Hall [1990]
Facts
- Hall loaned from BoM and granted security interest on a piece of machinery pursuant to equivalent of s.88 of the federal
Bank Act.
- Hall defaulted on loan and, pursuant to provisions of Bank Act, BoM seized machinery. This is not legal pursuant to s. 27 of
the Limitation of Civil Rights Act, which requires notice of intention to seize.
- QB (Saskatchewan) determined bank did not have to comply with provincial legislation. SCA reversed.
Issues
(1) Is the provincial legislation (s.27 of the Limitation of Civil Rights Act) valid?
(2) Is the federal legislation (s.88 of the Bank Act) valid?
(3) Is the security interest created under the Bank Act subjected to the procedures for enforcement of security interests
prescribed in the provincial legislation? Is there conflict between the 2 legislations?
Held
(1) Sections 19 and 36 of the LCRA came within property and civil rights and were thus intra vires the provincial legislature.
(2) Sections 178 and 179 of the BA came within banking power and are intra vires the federal govt.
(3) Ss. 19 and 36 of the LCRA are in conflict with ss. 178 and 179 of the BA so as to render ss. 19 and 36 inoperative in
respect of the security taken pursuant to s.178 of a chartered bank.
Ratio
- The LCRA is designed to ensure that a judge determines terms and conditions under which a creditor may repossess
and seize articles. The BA confers an immediate right of the creditor to seize and sell the goods. The two
legislations are thus in conflict as they cannot be carried out simultaneously, giving rise to the doctrine of
paramountcy.
- La Forest J. uses a broad notion of conflict. He held that the “essence of the federal legislation, which was to provide
banks with a national regime of security for loans, would have been undermined by allowing the provincial
legislation to apply.
Comments
- Doesn’t enhance federal laws like in Tobacco
39
-
UNDER PARAMOUNTCY ----FRUSTRATION OF PURPOSE OF FEDERAL LEGISLATION ---INCOMPATIBILITY OF PURPOSE
Rothmans, Benson &Hedges Inc v. Saskatchewan [2005] Dual Complicity
Facts
- Sask Tobacco Control Act vs Federal Tobacco Act
- Issue around regulation of tobacco products in retail outlets
Issues
- Are they both valid
- Is dual complicity possible
Reasoning
- Both acts are valid
- Dual complicity possible and doesn’t frustrate federal laws – in fact
- PARAMOUNTCY
- Enhances federal laws
Aboriginal Self-Governance and the Const
- 3rd jurisdiction? Interrelation b/w sovereignty and paramountcy issues…
MACKLEM P 622
-
Delgamuukw case shows a First Nation successfully asserting a broad Ab right to regulate and engage in ec activity
on reserve lands unrelated to trad patterns of territorial use and enjoyment
Distinguishing b/w core and periphery for deciding what goes in what jurisdiction
3 dif vision for ab self-governance
o Where Abs would have to adhere to 3 levels of law
o Where they would have exclusive sphere of jurisdiction
o Tri-partite where dif levels would regulate dif things ---would involve distinguishing b/w core and peripheral
and maintaining core of jurisdiction into which neither prov nor fed could go
 Charlottetown Accord proposed the latter
 4 possibilities for this
o Ab laws is paramount over fed and prov
o Ab law is paramount over fed but not prov
o Is paramount over prov but not fed
o Paramount over neither
 Also see minority protection ---eg w/ Charlottetown Accords and greater aut –would
women’s rights suffer? ---vulnerable groups w/in group boarder
5. Overview of Selective Federal and Provincial Powers
(a) Peace, Order and Good Government (POGG)
-
POGG appears in opening words of s.91 of Const Act 1867 --- has been interpreted in 2 primary wasy
o As a comprehensive grant of legislative authority w/ the subjects enumerated in s.91 as purely illustrative
40
o
As a purely residual power from which anything enumerated in s.92 must be subtracted
POGG prongs
o Emergency prong (Anti-Inflation Act)
National concern / dimension prong
 See Anti-Inflation ref
 Test = Sheppard’s Criteria to determine whether it is a matter of national concern as:
 (DISTINCT FROM EMERGENCY POWER) – (see Crown v. Zellerbach)
 NEWNESS: applies to both new matters, and matters that did exist at the time of
confederation but have since become matters of national concern. Fed authority is more
likely to be sustained for new matters where provs haven’t yet asserted a regulatory
presence.
 DISTINCTIVENESS: from prov matters - federal legislation must be aimed at a matter
that has defined boundaries, so doesn’t unduly interfere with or negate existing provincial
regulatory powers.
 PROVINCIAL INABILITY TEST: Can prov deal w/ it -- what would be the effect on extraprovincial interests of a failure to deal effectively with the control or regulation of the intraprovincial aspects of the matter. -**this aspect is merely an indicia of national concern, as
opposed to a necessary element. (this aspect is part of distinctiveness criteria more than
anything) –dif values can b/w provs can be brought in here
o Residual / gap prong
o (4th is articulated by Monaghan but Sheppard thinks he’s right) = Interprovincial matters
Dif views of federalism affect
o Laskin = centrist ---safeguarding of federal jurisdiction -- see in Anti-Inflation cases uses emergency prong to
try for majority
o Beetz = classical federalism – more protective of prov aut – so more cautious about departing from
precedents which provided safeguards for this
o
-
Reference re Anti-inflation act[1796]  POGG  emergency prong
Facts
-
The federal government enacted a powerful series of price, income and profit controls for professions and large
businesses (that had more than 500 employees).
The provincial public sector (education, health, etc.) was not explicitly covered, but was addressed by federalprovincial agreements with eight of ten provinces. (B.C. and Sask. did not sign agreements, but supported the Act)
The preamble to the Act called inflation “a matter of serious national concern” but did not use the word
“emergency” or “crisis.”
Trade unions were outraged and the Canadian Labour Congress intervened in the case.
Issues
- Was the anti-inflation legislation ultra vires?
- Were the social and economic circumstances such as to enable Parliament to act on the basis of its POGG powers?
- Did the Canadian economic crisis warrant federal intervention because as an emergency?
Held
- Not ultra vires Yes crisis
Reasoning
-
In analyzing whether act is supportable as crisis legislation -- Laskin raises 4 main issues
1)form of legislation (---relevance??)
2)preamble or purpose clause ---does this give us indication of what extent did gov believe it was a national
emergency –((this is stated purpose and actual purpose part ))) ---colourability --3)does extrinsic evi and other source show that there was a rational basis for parliament to act under emergency
41
-
powers ---this = deferential test ----was there crisis
-4)link to other powers -----laskin concludeds that a significant number of people are covered by this initiative--nto that this was necessarily not a a responsive to emergency
EMERGENCY PRONG
Narrow reading on national concern doctrine
Beetz dissents – thought courts should explicitly use word ‘emergency’ if it wanted to rely on emergency powers ---warned against ‘national concern’ branch of POGG, based on policy args (slippery slope/floodgates) ----but
thought National Concern branch could be applied if a NEW matter if it had a ‘DEGREE OF UNITY THAT MADE IT
INDIVISIBLE’ Crown v. Zellerback – majority endorses this point – see test under national concern
Comments
- Case often cited for court’s willingness to bring in extrinsic evi – ADMISIBILITY OF EXTRINSIC EVI FOR EMERGENCY
---‘judicial notice’ (common sense –the sky is blue eg)---judges sometimes take note of social/actual facts without
having them proven (Laskin) ----question of whether judges are qualified to make decisions on eg ec issues
R v. Crown Zellerbach Canada Ltd[1988]  POGG  National Concern Prong
Facts:
- Whether s. 4(1) of the federal Ocean Dumping Control Act is valid, considering whether federal legislative
jurisdiction to regulate the dumping of substances at sea, as a measure for the prevention of marine pollution,
extends to the regulation of dumping in provincial marine waters.
- Logger – dumping logs –not poisonous (or environmentally toxic) and
- Was the legislation was drafted too broadly (i.e. is it unreasonable to have to seek a permit to dump a non-toxic
substance such as wood?).
Issue
- Could fed gov regulate pollution in prov waters that had no demonstrable effects outside prov waters?
Held
- Yes
Reasoning
- Majority determines pith and substance as controlling marine pollution and upholds fed control of marine pollution
on basis of national concerns branch of POGG
- LeDain –criteria for what can be justified under national concern branch of POGG –expands on Beetz’s dissent in
Anti-Inflation and solidifies test in 4 points (see above)
- National Concern Prong
- La Forest –dissents --Going through test he finds that it fails to meet indivisibility test
(Sheppard isn’t convinced satisfies test either
Comment
- BRUN AND TREMBLAY
- Critique judgment saying all criteria = vague and fluid
42
Friends of the Oldman River Society v. Canada (Minister of Transport) [1992]  POGG  no
national concern
Facts
-
Fed Dept of Transport didn’t follow proper environmental assessment procedures when giving the Alberta gov
permission to build dam on Oldman River ---have power to allow or disallow projects
Society argues to quash approval and to submit proposal to enviro review
Alberta appeals that fed legislation attempts to regulate enviro effects of a matter largely within control of prov --not fed concner
Issues
- Does fed gov have power to force prov projects to submit to enviro review before proceeding?
- Did enviro regs pass test for the national concern branch of POGG
Held
- No
- No
Reasoning
- Laforest now in majority echoes his minority views in Crown Zellerbach ---where enviro regulation not distinctive
enough, not enough indivisibility to meet Beetz’s requirements for national concern branch set out in Anti-Inflation
- (Sheppard doesn’t thin this makes sense b/c you can never really have something that is completely distinct and
indivisible
- So regulation of enviro = not exclusively federal - DOESN’T FIT UNDER NATIONAL CONCERNS PRONG OF POGG
Ratio
- Power to regulate over enviro can be either federal or prov ---depending on aspect
(b) Criminal Law
-
Fed = s 91(27), s.91(28)
Prov = s.92(6), s.92(14), s.92(15)
(i) Federal Crim L power
- S. 91(27) assigns resp over crim L to fed Parliament
o Crim procedure is federal
o Civil procedure is prov
o But prov can impose punishment by fine, penalty or imprisonment for infringing on prov laws relating to
matter enumerated in s.92
o Lots of room for overlap
 Eg penitentiaries – 91(28) federal for more serious crimes, 92(6) prov for lesser crimes
- 2 main issues
o scope of fed power
o Extent to which the existence of this fed power has constrained prov attempts to control local conditions of
public order and morality
- Crim Law test see Margarine Ref (developed by Justice Rand)
o Purpose
 Must serve a public purpose (peace, order, security, health, morality –enviro protection too as
added by Rand in R v. Hydro-Quebec) ----concern as to well-being of pop
o Form
 must have crim L form
 List of prohibitions w/ resulting penalties
43
Reference re Validity of Section 5(a) of the Dairy Industry Act (Margarine Reference) [1949]
Facts
-
Fed gov referred section 5(a) of Dairy Industry Act , which banned manufacture, sale or possession of margarine, to
the SCC
Issue
- Is act ultra vires (so should be within prov jurisdiction)
- Is it a matter of crim L (the it would be intra vires)
Held
- Yes(could have tried to regulate under s.91(2) Trade and Commerce but didn’t)
- No
Reasoning
- Rand says pith and subsance has ec purpose that was to give trade protection to dairy industry –trade based
protection but not actually protecting public in terms of test (below and above) (intersection w/ pith and substance
and crim law test)
- CRIM LAW TEST
- Form is crim but purpose isn’t
Comments
- Rand J.
RJR MacDonald Inc. v. Canada (Attorney General) [1995]  under Crim
Facts
-
Tobacco Products Control Act – prohibited advertising of tobacco products offered for sale in Can and specified
penalties for this ban
Exemption for foreign tobacco product ads in imported pulbications
Challenge that it’s pith and substance was property and civil rights (thus intruding on s92(13)and s92(16) ---and that
it violated freedom of expression under Charter
Issues
- Under crim L?
- Does it violate charter
Held
- Yes
- Yes (so struck down) (????)
Reaonsing
- CRIMINAL LAW TEST
- MET CRITERIA FOR BOTH FORM AND FUNCTION under Rand’s test crim L test in Margarine Ref
- Public health as national matter - UNDERLYING PUBLIC POLICY CONSIDERATIONS
- Broad interpretation of crim L power
-
Major J dissents that law is regulatory not criminal ---since tobacco isn’t criminal how could advertising it be ((--focuses on regulating not criminalizing ---wouldn’t want to force it underground to black market scenario))
Comments
- Reiteration of notion that crim law isn’t frozen in time LIVING TREE APPROACH
- While LaForest was very much against expansive ‘national concern’ branch of POGG he promoted expansive fed
crim L power here ----sumoking as AGAINST PUBLIC HEALTH
44
R. v. Hydro-Quebec [1997]  crim law  matter is shared jurisdiction
Facts
- Canadian Environmental Protection Act allowed fed gov to regulate use of toxic substances
- Hydro-Quebec found to have violated order under act for regulating PCB emissions
- H-Q says relevant section of act are ultra vires 91(27) (crim L)
Issue
- Could fed gov use crim L power to justify environ regulation?
Held
- Yes
Reasoning
- CRIMINAL LAW TEST USED --SUCCESSFULLY
- La Forest ADDS ENVIRONMENTAL PROTECTION TO Rand’s list of public purposes
- Broad reading of crim L test ---for purpose and form ---used cirm L power to justify fed law intitiative
- Dissent says law was regulatory not prohibitory as didn’t define general terms of offences
Comment
- LaForest –more keen on expansion of crim law test than national dimensions b/c still leaves provs w/ control over
aspects (kind of like necessarily incidental??) ----doesn’t exclude jurisdiction of provs as they remain free to regulate
the enviro either supplementarily or independently of fed gov
- ENVIRO IS MATTER OF SHARED JURISDICTION
Reference re Firearms Act [2000]  Crim L test successful
Facts
-
Federal Firearms Act (1995) required licensing and regulation for all guns and made it a criminal offence not to
comply
1996 Alberta challenges fed gov’s power to enact on basis that was (pith and substance) regulatory not prohibitory
Issues
- Could act be upheld as criminal?
Held (SCC)
- Yes
Reasoning
- CRIMINAL LAW TEST --SUCCESSFUL
- SCC focuses on prohibitory aspects of legislation (purpose) ---form –criminal punishment ---both requirements for
criminal test filled
- Regulatory aspect was secondary (necessary ancillary???)
- Act didn’t hinder ability of prov to regulate the ‘property and civ rights’ aspect of guns
Comments
- Although upheld legislation ---approach to the crim law power was more moderate here than in Hydro-Quebec case
(laForest had retired by this point)
(ii) Prov Power to Regulate Morality and Public Order
- Note provs can regulate but can’t create crimes
o Eg Morgentaler
- It’s recognized that under s92(15) prov may impose punishment for breaking prov laws--even though this is
understood as ‘ancillary’ to the other heads of power
- Though provs don’t have control over criminal law –allowed certain amount of power to legislate w/ regard to
morality and public order
45
Nova Scotia Board of Censors v. McNeill [1978]  P&S  Not Crim Provs usually deal w/
moral issues
Facts
-
NS created board of censors w/ power to ban films
Disobeying resulted in cinema being fined or losing its license
McNeill sues to overturn banning of Last Tango in Paris as ultra vires prov legislation as he claims this is a crim law
power
Issue
- Can NS ban films based on morality
- Is legislation valid
Held
- Yes
- Yes
Reasoning
- Ritchie for majority – Board of Censors was regulating ’property and civil rights’ – so = intra vires
- Also said that in country as vast and diverse as Can---morality can be a local and private nature ---(double aspect of
morality) ----allowing for prov diversity
- Pith and substance – primary focus is regulating film industry in prov
- Form – censorship ---so regulatory ---intent is preventative not penal
- Enforcement of morality doesn’t equal invasion of crim field
- Laskin Dissents – say pith and substance as incursion into crim law –didin’t want form to mask a criminal purpose ----he says provs may deal w/ moral issues but not where conflicts w/ fed legislation
- DOES THIS INVADE CRIMINAL LAW SPHERE –NO SEE MORALITY ARG
Comment
- Complex regulatory scheme –not so much prohibition w/ penalty-–could this even have been under crim as
- Bef Charter so freedom of speech not an issue
Westendorf v. The Queen[1983]  colourability
Facts
-
W charged w/ prostitution under Calgary by-law
Prostitution isn’t criminalized but solicitation is
Fairly high standard for determining solicitation under feds so local admin tired to institute regulations that would
make it easier to find guilty
Issue
- Does this invade crim law field?
Held
- Yes
Reasoning
- Laskin majority
- Reasoning similar to Morgentaler ----colourability
- Bad province ---no criminalisation of prostitution
- INVASION OF CRIMINAL LAW SPHERE –NOT JUSTIFIED BY MORALITY/PUBLIC ORDER ETC
Comment
- Sheppard says not really consistent w/ censorship case (??)
- Reverses McNeill
-
Double Aspect doctrine often used unless no valid prov purpose found at basis of legislation
46
Rio Hotel v. New Brunswick [1987]  n ot crim  dual compliance
Facts
-
Concerning nude performances in bars
Prov liquor Licensing Board given power to regulate/restrict the nature and conduct of live entertainment in
licensed premises
Owner of establishment argues that it’s related to public morality and thus under fed jurisdiction
Issue
- Was it in conflict w/ fed crim law
Held
- No
Reasoning
- No conflict b/c able to comply w/ both laws (DUAL COMPLIANCE)
- Purpose is ruled as entirely dif from that of crim law –namely to regulate the forms of entertainment that may be
used to boost alcohol sales
- Form –not criminal b/c no penal consequences for non-compliance –consequence is revocation of license (a
privilege in the first place?)
Assessing Federalism
- Underlying policy concern = criminalization as a strategy for regulation
SIMEON P 198
-
Fundamental federalism values
See p31 !
47
6. Case Studies in Federalism
-
Assess validity ---first of legislation when challenging a law/statute, not Const
o Either of whole law or particular section
o Assess Federal and provincial separately
 Federal
 Pith and Substance –test (a la Swinton and set out in )
o ID the matter being dealt w/
 The Purpose and the Effect
 Both stated and implied (colourability a la Morgentaler?)
o Scope – does Double Aspect Doctrine apply (see Multiple Access)
 ID relevant head of power
o Specific powers under s 91
o POGG - test
 Emergency (also see Anti-Inflation for sort of test)
 National concern (Crown Zellerbach)
 Separate from the emergency branch
 Newness
 Distinctiveness (from prov regulatory powers)
 Provincial Inability test (extra-prov effects/interests) –related to
distinctiveness
 Residual /Gap
o Criminal
 Purpose – public good (peace, order, security, health, morality –enviro
protection)
 Form
o Trade and Commerce
 Two prongs
 International and interprovincial trade and commerce
 Form
 (Function) (I think it actually can be function/effects
but not sure)
 Effects in context (interprov or intraprov) (egs
Carnation, Potash, Klassen) ----solidify this!! (I
believe can also use P&S here too if initially aimed
at something and then in practice does something
else )
 general trade and commerce power
o 5part test laid out in GM – w/ 3 originally coming from
MacDonald and (Canadian National Transportation)
 Necessarily Incidental / Ancillary Doctrine – test (GM)
o Large or small intrusion
o Is act valid as a whole –intra vires in terms of pith and substance
o If offending provision is invalid is it significantly related or integrated to piece of
legislation to justify incursion – sliding scale
 Provincial
48

-
-
-
Pith and Substance –test (a la Swinton,and set out in Morgentaler, Employment Insurance
Ref)
o ID the matter being dealt w/
 The Purpose and the Effect
 Both stated and implied (colourability a la Morgentaler?)
 Head of Power
o Specific powers under s.92 (also s.92A)
o Property and civil rights
o Matters of a merely local and private nature
 Necessarily Incidental / Ancillary Doctrine test (GM)
o Large or small intrusion
o Is act valid as a whole –intra vires in terms of pith and substance
o If offending provision is invalid is it significantly related or integrated to piece of
legislation to justify incursion --- sliding scale
Paramountcy –test (Multiple Access, Bank of Montreal, Rothmans)
o Dual compliance
o Frustrating federal purpose
Interjurisdictional immunity (Bell1, Bell 2, Canadian Western Bank)
o Does it affect vital/central/ essential element of fed undertaking
o WITH CANADIAN WESTERN BANK AFFECTS CHANGES TO ‘IMPAIRS’’
Underlying policy concerns – Fundamental Federalism Values (Simeon p 31)
---where does applicability operability (ithink this is same as paramountcy), validity go??? –I believe this is just validity--- and
then applicability and operability are two completely di f types of challengews
-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
49
V.
Challenges to Canadian Federalism
1. Globalization & National Constitutionalism
Ec Regulation: Prov and Federal Powers
Trade and Commerce
a) Prov Powers
Carnation Co. Ltd. v. Quebec Agricultural Marketing Board [1968]  effects on intraprov trade were incidental
so didn’t encroach on fed
Facts:
- Carnation operated an evaporated milk factory in Sherbrooke. It bought its raw milk from Quebec dairy farmers,
but shipped most of the evaporated milk to other provinces. A price dispute arose between Carnation and its
suppliers. The Quebec Agricultural Marketing Board was empowered by legislation to arbitrate such a price dispute,
which it did. Carnation contested the price settlement on federalism grounds.
Issues:
- Did the Board’s decision encroach on the federal field of interprovincial trade and commerce?
Held:
- No
Reasoning:
- Courts looked at what was P&S --- intraprov trade or export
- Martland J. found that the purpose of the legislation was intraprovincial (as it secured fair pricing for Dairy farmers
in Quebec), and that its effects on interprovincial trade were incidental. In Martland J’s words (Cb, 333), “It is not
the possibility that these orders might ‘affect’ the appellant’s interprovincial trade which should determine their
viability, but, rather, whether they were made ‘in relation to’ the regulation of trade and commerce....”
- Incidental effects in sense that would have created a regulatory gap if legislation had been struck down by courts
- It used the analogy of labour law: it certainly affects the cost of doing business in the province, and it may therefore
affect the province’s external trade, but its main goal is internal and not trade-related.
- It used the analogy of labour law: it certainly affects the cost of doing business in the province, and it may therefore
affect the province’s external trade, but its main goal is internal.
POINT of all the agricultural cases: If the pith and substance is inter-provincial/international trade, the issue falls under
federal jurisdiction, even if there are incidental effects on provincial or local activities (depending b/c this didn’t happen
in Carnation/Quebec Dairy case). “Where the underlying purpose of provincial regulation is to impede the free flow of
goods between provinces, such legislation will be struck down even if it extends only to persons or things physically within
the province and appears on its face to be neutral” (Monahan, 318).
What is P&S, what is trying to be regulated ---is it protective in order to protect from cheaper outside products –if courts
determine prov legislation effects intraprov trade then will be struck down unless truly incidental and necessary (like in
Carnation/Quebec Dairy case)
Basically same thing for natural resource cases
R. SIMEON AND I. ROBINSON (P343-345)
-
regional redistribution of money (and resources?) between provinces –notably from the west to other provs –
dissatisfaction in the west
50
Central Canadian Potash Co. Ltd. v. Govt. of Saskatchewan [1979]  ultra vires  P&S impact on int’l trade
Facts:
- Almost all of Saskatchewan’s potash was sold outside the province, and 64% was sold to the US. Fearing US trade
sanctions, Saskatchewan instituted a “prorationing” scheme. In setting up the scheme, the Saskatchewan
government met with officials from New Mexico; Saskatchewan officials issued “directives” regulating the used of
potash exported to Europe, and so on.
- 1969 Sask introduced prorationing scheme ---designed to reduce supply so lont-term price in exportation market
would remain high
- Resulted in Central Can Potash from fulfilling one of its Ks
Issues
- Were the regulations /prorationing scheme ultravires?
Held:
- Yes
Reasoning:
- Entire scheme was designed in its P&S to have an impact on import/export and int’l trade
- Marland J., “Prov legislative authority does not extend to fixing the price to be charged or received in respect of the
sale of goods in the export market”
Ratio
- The prorationing scheme involved direct intervention in the export trade. It therefore encroach on
interprovincial/international trade and commerce
Comments:
- Note on Proprietary Rights (p353)
- Reference made that Sask was acting in a regulatory capacity rather than as a proprietor
- Question of whether prov should be able to do things as owner that it can’t implement by legislation
Sec 92(A) (note on) p 354
-
In wake of Potash case
In 1982, s.92A was added to CA1867, which gave provinces power over natural resources.
o Granted provs additional powers over natural resources
o This section was meant to “reassure” the provinces that the federal government would not use s.92(10) to
declare natural resources to be works under federal jurisdiction.
o s.92A(2) gives provinces the power to regulate exports of natural resources, so long as this does not result in
prices that discriminate against other provinces.
 This subsection is qualified by s.92A(3), which makes federal paramountcy explicit in this area.
Interests of provs--- want to protect marketing schemes b/c if courts strike down might = regulatory gap, unless fed has
regulations set up covering same area
Note on Offshore Minerals (p356)
b) Fed Powers
Two Prongs of Trade and Commerce: (from Citizens Insurance v. Parsons)
1) Inter-provincial and international trade and commerce – This can be used with pith and substance to incidentally
encroach on provincial law.
2) General trade and commerce power (see casebook, 65 – General Motors Canada v. City National Leasing) – Similar to
POGG’s national concern branch, but no indivisibility requirement.
51
Trade and Commerce - Prong #1 – Inter-prov and int’l trade and commerce
The Queen v. Klassen (1960) (just a Manitoba Court of Appeals decision)  impeded on prop and civil rights
but necessarily incidental b.c as whole legislation aimed at interprov/intl trade
Facts
- Klassen operated a feed mill (an elevator) in Grunthal, Manitoba. He bought 296 bushels of wheat from a nearby
farm and converted it into feed, which he sold to farmers in the immediate area (not crossing any provincial
borders). Klassen failed to record the purchase of the grain in his “delivery permit book,” as required by the
Canadian Wheat Board Act. (This Act declared that all grain elevators were “works to the general advantage of
Canada” and it enforced a quota system, assigning particular quantities of grain to elevators.)
Issues:
- Was the Canadian Wheat Board Act ultra vires in respect to Klassen’s feed mill?
Held
- No
Reasoning:
- Although the court conceded that the Act impinged on property and civil rights, they found that this was necessarily
incidental, because the legislation as a whole was aimed at interprovincial/international trade.
- Even though the transactions in question were purely intraprovincial, they could nevertheless “clog the channels of
the marketing system” that the Act was meant to regulate.
Comments:
- Courts seemed more willing to apply the ‘necessarily incidental’ doctrine in relation to the trade and commerce
power (fed), thus allowing fed gov to regulate some intraprov transactions as part of a scheme directed at the
regulation of interprov or int’l trade
- This was a revolutionary decision, allowing the trade and commerce power to apply to wholly intraprovincial
transactions.
- The SCC declined leave to appeal this decision.
- In an article in the Canadian Bar Review, Bora Laskin praised this decision for abandoning a formalist distinction
between intraprovincial and interprovincial trade. Laskin was influenced by U.S. legal realism, and he wanted to
take a functionalist approach with acknowledged the effects of the wheat on the market.
- ==Functional effects based reasoning
Kosher foods – importation restrictions – Eng labels on products (quebec)
(where fed legislation is a good thing)
Could federalism grounds be used to challenge Quebec restrictions on imports of Kosher foods with English-only labels?
(CBp.343). This was a dispute in Quebec in the 1990’s, but never came to court. Federal government has jurisdiction in trade
and commerce nationally and inter-provincially. But the question here is just about the Quebec’s government’s charter of
language laws.
(1) Both the federal government and the provinces have power over language use.
(2) Prima facie, it seems to be a matter of property and civil rights (or matters of a merely local or private nature).
However, one could also argue that it interferes with international trade and commerce.
 One must begin by looking at the pith and substance. What is the law’s dominant purpose? What are its
effects?
 In order to succeed, one would have to show that the law’s effects on international trade are more than
incidental (or not “necessarily” incidental). However, sometimes the effects can be so drastic as to invalidate
legislation with a prima facie valued purpose.
 It might have been different had the province been trying to protect its own kosher food industry.
 Ultimate aim here wasn’t to regulate import but it has the effect of limiting imports
52

-eg of Potash case where was reliant on export so incidental effects were
Accepted
- (Note –dif effects) ---where there are also religious effects on minority so =Charter might be more effective ---arg
involving Human Rights and Freedoms –or maybe consumer safety problem if labels not in French
(3) The law could be challenged more effectively on Charter grounds:
 freedom of religion;
 equality rights;
 language rights
SOLUTION was = a political solution was created around Passover (what was it???)
Trade and Commerce - Prong #2 – General Trade and Commerce
- Ask whether or not fed gov has jurisdiction to regulate matters where are of NATIONAL IMPORTANCE – even if is an
inter-prov affair
- Early eg of this is Anti-Inflation Ref
- Encroaching regulations must be part of a larger scheme
General Motors of Canada Ltd. v. City National Leasing [1980]  question of national concern
Facts:
The Combines Investigation Act created a civil cause of action for certain infractions of its provisions.
The creation of civil causes of action is within provincial powers. GM challenged the provision in order to stop a
lawsuit by CNL.
Issues
Can an intrusion on provincial powers be justified as incidental to the valid exercise of the federal
trade and commerce power? Can S. 31.1 be upheld as const valid by virtue of its relationship w/ the Combines
Investigation Act? (IDing involves 2 issues : 1) is the Act valid under federal trad and commerce power expressed in
s.91(2) of Const Act 1867, 2) is s. 31.1 integrated w/ the Act in such a way that it too is itra vires under s. 91(2).)
Held:
Reasoning:
- 5 part test: (first 3 originally articulated by Laskin, J. in MacDonald v. Vapor Canada, last two added on by Dickson J.
in this case)
- 1) Impugned provision must be part of a general regulatory scheme
- 2) The scheme must be monitored by the continuing oversight of a regulatory agency
- 3) The legislation must be concerned w/ trade as a whole rather than w/ a particular industry
- 4) The legislation should be of a nature that the provs jointly or severally would be constitutionally incapable of
enacting
- 5) The failure to include one or more provs or localities in a legislative scheme would jeopardize the successful
operation of the scheme in other parts of the country
- almost an efficiency arg
-
Dickson suggests that these last 2 aspects ensure fed doesn’t encroach on prov powers
-
The impugned provision (creating the civil cause of action) has a sufficient relationship to the Combines
Investigation Act to be valid under the general trade and commerce power according to the 5 criteria from
MacDonald and Canadian National Transportation):
The intrusion on provincial powers is a limited encroachment.
The Act is very obviously a general regulatory scheme.
The Act and its regulatory scheme are valid under the general trade power.
These provisions operate under the “watchful gaze of a regulatory agency.”
The provisions meet the remaining criteria in “that the scheme of regulation is national in scope and
that local regulation would be inadequate.”
53
-
Comments:
- SCC applied the general regulation of trade doctrine to uphold fed competition legislation
Kirkbi AG v. Ritvik Holdings Inc. [2005] P&S  national  minimally intrudes on prov
Facts
- Kirkbi held the patents for LEGO construction sets.
- When the patents expired in Canada, Ritvik began manufacturing and selling bricks interchangeable with LEGO.
- Kirkbi tried to assert a trade-mark in the “LEGO indicia
- When the Registrar of Trade-marks refused registration, Kirkbi claimed the LEGO indicia as an unregistered mark
and sought a declaration that it had been infringed by R pursuant to s. 7(b) of the Trade-marks Act, which creates a
civil cause of action essentially codifying the common law tort of passing off.
- Kirkbi requested a permanent injunction to prevent Rivtik/Mega Bloks from marketing infringing products and
sought damages.
- The trial judge found that purely functional features, such as the LEGO indicia, could not become the basis of a
trade-mark, whether registered and unregistered. The majority of the Court of Appeal upheld the decision.
- In the SCC, Rivtik/Mega Bloks challenged the constitutionality of s. 7(b), arguing that the provision was ultra vires
the legislative competence of Parliament under s. 91(2) of the Constitution Act, 1867.]
Issues
- Is s.7b of the Act const valid?
Held
- Yes
Reasoning
- GM 5 part test
As outlined above, s. 7(b) of the Act only minimally intrudes into provincial jurisdiction over property and civil
rights. It is a remedial provision limited to trade-marks as defined in the Act (ss. 2 and 6). … [Section]. 7(b) “rounds
out” the federal trade-marks scheme. In this regard s. 7(b) is, in its pith and substance, directly connected to the
enforcement of trade-marks and trade-names in Canada because it is directed to avoiding confusion through use of
trade-marks.
- Lebel J. concludes that s. 7(b) lies within the federal government’s legislative competence. I will now turn to the
issues of interpretation and application of the Act raised by the present appeal.
- [The Court went on to dismiss Kirkbi’s claim for passing-off under s. 7(b) of the Trade-marks Act, finding that the
claim was based upon the technical or functional characteristics of the Lego bricks which could not be the basis of a
trade-mark, whether registered or unregistered.
- also mentions issue of regulatory gap if fed legislation were to be struck down
Trade Barriers, Ec Integration and National Sovereignty
CB p.323
-
Negative integration (gov shouldn’t introduce trade barriers ---imp of free movement of goods etc) vs. positive
integration (desire for greater harmonization of standards across country)
Note – other sections and powers of const that deal w/ ec policy and regulation
-
many under sec 91 have ec dimensions even though perhaps not initially explicit
taxation is imp
fed crim L power in areas eg product safety standards
fed regulation through other enumerated powers such as banking, interest, copyright, and patents and jurisdiction
over interprov and int’l transportation
sec 121 -- imp clause – protects the free movement of goods across prov borders
54
Black and Co. v. Law Society of Alberta [1989]  impaired mobility rights
Facts:
- Law Society of Alberta enacted a rule prohibiting partnerships between resident and non-resident lawyers in order
to prevent a Toronto based law firm from opening a branch in Calgary.
Issue:
- Is the rule const valid?
Held:
- No
Reasoning:
- The rule violates s. 6(2)(b) of the Charter that guarantees a citizen or permanent resident the right to pursue the
gaining of a livelihood in any province (i.e. mobility rights).
Impeding mobility of people is the analogous to violating s. 121 – the free movement of goods across provincial
borders (i.e. the absence of interprovincial tariffs).
- However, it is also a right inherently attached to citizenship.
-
La Forest J. looks at the history of protection of inter-provincial mobility in Canada: framers’ intent was to create an
economic union. This was developed by the creation of a central government, s.91(2) – the trade and commerce
power, s.121, and the building of a transcontinental railway.
Canadian citizenship entails mobility rights that can’t be denied by provincial legislatures.
Comments:
- Mobility rights
- Must a country be ec regulated to be unified politically
- Idea that facilitating and reinforcing fed ec. regulations and ec integration strengthens political unity of countryand
ec health of country
-this is a concern w/ Quebec
- common community identity resulting from political and ec citizenship
-p325 – mentions prior cases dealing w/ prohibitions for immigrants working in mines (BC –Chinese immigrants) + other
cases where it was determined
- Essential attributes of citizenship include the right ot enter and the right to work in in a prov and it can’t be denied
by the provincial legislatures ----flow naturally from Can citizenship
CB p326
Note on the Extent of Internal Trade Barriers – La Forest J.
-
delineates the range of barriers created by govs
create significant financial losses and disadvantages
o in addition to costs associated w/ new activity that barriers deter
o and that internal barriers may discourage international investors who seek to locate their plants in fully
integrated markets
CB p.382
-
PROF RICHARD HOWSE’(p384) – Two dif visions/approaches of ec citizenship and ec regulation
o Political theory of ec integration
 Notion of equal ec citizenship where Canadians shouldn’t have their ec opportunities unreasonably
impeded on the basis of their place of residence
 Against protectionist policies in some provs
 Neo liberal strand about imp having fed regulations and that there shouldn’t be duplicate prov gov
regulations -- = OVEREGULATION
55
o
-
Neo- conservative standpoint –strengthening the ec union
 Proceed from notion that the Can ec is currently over-regulated, or over-governed, and that
barriers to ec mobility are undesirable not b/c they’re discriminatory or unnecessarily harmful to the
indiv’s ec opportunities but b/c they interfere w/ the ‘magic of the marketplace’
National ec
o Can undermine prov aut
o Miss out on the experimentation where can try regulations etc in one prov and if works expand to include
others
CB p383
Strengthening the Can Ec Union
-
notion that const reform should occur ---dif approaches
o that sec 121 should be improved (expansion) ---to reduce barriers
o const change through intergovernmental cooperation ---agreements on internal trade
 imp method of conflict resolution –culminating in mediation and arbitration by specialized panel
rather than the courts
 eg of MMT case where MMT had been blended in gasoline fuel sold in Can for almost 20 years –fed
gov moved to prohibit importation and interprov trade of MMT for environmental, health,
consumer protection grounds ---importing was occurring from Virginia (sole producer) – they
invoked investment-protection provision of NAFTA and claimed damages –Alberta filed complaint
too --while panel judged fed gov had reasonable basis for actions still didn’t allow it --- Can is one of
few countries in world that still blends MMT into automotive fuel
o Const Change through the Courts
o Const Change through Int’l agreements
 Arg that increased imp of global ec needs increase in fed power in terms of regulations , securities
etc
 But fed gov may witness decline in reg power (and provs too) as int’l sources limit and undermine
fed and prov ec sovereignty – (NAFTA eg)
 This also relates to MMT eg
 Also eg of Tabacco packaging restrictions but products were comin in from US ---alleged that
was against NAFTA and threatened to sue
CB p364
-
Fed govs can only pass laws implementing treaties where the subject matter of the treaty is within fed jurisdiction
2. Flexible Federalism
-
Key message in readings – how/what extent do govs act in ways that go beyond constraints of enumerated powers
laid out in s. 91, 92
o While powers and jurisdictions may be laid for particular area –therea re ways of legislating statutes beyond
sphere—beyond formal rule of L
o
o
There isn’t much case law on this; it’s rarely litigated. The federal government does not want to risk a court
case that could find it unconstitutional to have demanding conditions attached to federal spending. And the
provinces don’t want to risk a court case that could legitimize intrusive federal conditions (p.434)
In the postwar period, there has been a trend toward overlap and concurrency.
56

There has also been a trend toward “executive federalism,” which is outside the domain of judicial
review.
(a) Fed Spending Power / Taxation
 Fed gov – through revenue from taxation and resulting spending ---redistribution of income ---can
lead to certain control/power
 Note redistributive goals and policy concerns through tax deductions
 So TAX is a POLICY BASED INTRUMENT
 CB –overview of spending initiatives
 Change to idea (post WWII) that gov should provide social welfare net for its citizens in
terms of ed, defence etc --- SOCIAL INFRASTRUCTURE
 Mid 1970s-1990S --- reaction to welfare state (w/ deficit etc) and notion of “Big
Government” where families etc should have greater control
o Emergence of ‘neo-liberal’ ideology influencing gov (eg Ralph Klein)
 Mid 90s –-- fed gov shifted to providing less money to provs w/out lessening responsibilities
of provs
o Since 1995, the federal government’s approach has changed. Through the Canada
Health and Social Transfer, provinces now receive a lump sum of cash transfers and
tax points, rather than specific targeted amounts.
o If the federal government attaches conditions to its transfers, is it
encroaching on provincial jurisdiction?
o In theory, a province can always refuse the money.
o In the Meech Lake accord, the federal government offered to
compensate provinces that opted out of shared-cost programs, as long
as they carried on similar programs which were compatible with
national objectives.
 Although this was never entrenched, the federal government made
the same promise in the 1996 Speech from the Throne
o Also effects of 9/11 –deficit developing b/c of defence spending ---but also stronger
role of central gov
o Imp of overarching gov control but greater delegation
o (relation to Charter???)
 Sources of spending power = s91(a), s91(3)

KEITH BANTING, “The Past Speaks to the Future: Lessons from the Social Union” (1998)
(CBp.428)
 The postwar generation had to decide whether to establish a single pan-Canadian welfare
state or a series of provincial welfare states. It ended up with a compromise between the
two.
o With unemployment insurance (1940), family allowances (1944), and old age
pensions, (1951), the federal government became dominant in the area of income
security.

The federal spending power is used in three ways:
1. direct benefits provided by the federal government, including:
o
o

unemployment insurance (s.91(2A))
old-age pensions (s.94A—but note the explicit provincial paramountcy
here)
Both of these were perceived to require constitutional amendments.
57
2. shared-cost programs, including:
o
o
o

health care
post-secondary education
social assistance
SUJIT CHOUDHRY (CB p437) - points out that the federal standards attached to shared-cost programs
are generally not enforced, due to:
 lack of resources for information gathering
 lack of political will to interfere in something seen as provincial
 lack of legitimacy following federal cutbacks
3. equalization grants


-
-
These are entrenched in s.36(2) of CA1982.
These maintain the ability of the provinces to provide social services without excessive
taxation.
o
ANDREW PETTER, “Federalism and the Myth of the Federal Spending Power” (1989) (CBp.435)
 Petter finds the spending power problematic on two grounds:
 It allows the federal government to meddle in areas that are clearly of provincial jurisdiction. It is
thus inimical to basic federalist principles. (Petter seems to be defending a kind of subsidiarity.)
 It mixes up responsibility for certain fields between two levels of government, which detracts from
accountability and “responsible government.” This also confuses citizens who would like to
campaign for any kind of policy changes—which level of government should they address?
o
SUJIT CHOUDHRY, “Recasting Social Canada: A Reconsideration of Federal Jurisdiction over Social
Policy”) (2002) (CBp.437)
 Choudhry argues in favour of federal jurisdiction over social policy based on the idea of a kind of
“race to the bottom”: Provinces that tax the rich to provide for more generous services will see an
exodus of rich people and an influx of poor people.
 This scenario assumes that moving is cheap.
 Someone commented in class that moving is cheap for poor people, and this scenario seems to
reflect what happened in B.C. under the NDP government: There was an influx of homeless people.
 intergovernmental agreements: These can be detailed contracts (like the Agreement on Internal
Trade) or general statements of goals and policies
Note on Proposed Const Amendments CB439
Quebec govs in particular have demanded controls on fed spending power to prevent encroachments on prov areas
of jurisdiction
Others see fed spending power as an imp mechanism for maintaining a social union w/ common national standards
1987 Meech Lake Accord and 1992 Charlottetown Accord would have added new s.106A to Const act 1867
o Where provs would be able to have own programs and would receive funding for own programs if chose to
opt out of national shared-cost program ---no penalization for choosing to opt out
Note on the Enforcement of Naitional Standards CB440
Social Union Framework Agreement (SUFA)
o To provide normative framework for fed-prov relations In social policy arena
58
o
o
o
Note art 1 where Can’s social union should reflect and give expression to fundamental values of Canadians
Note art 6 which provides for establishment of dispute settlement machinery for disagreements regarding
the interpretation of national standards
Shows how Can gov has strong component of executive federalism w/ strong intergov agreements
(b) Executive Federalism and Intergovernmental Agreements
.
The CAP Reference (1991) (or Reference Re Canada Assistance Plan (BC)(CBp.443) dealt with the legitimacy
of the federal government’s unilateral decision to put a “cap on CAP”, i.e. to limit the money going to the
“have” provinces of Alberta, B.C. and Ontario for social assistance and welfare.
 The B.C. government initiated a reference to the B.C. Court of Appeal. That court held that the
federal government was bound by its agreement with B.C. and had to obtain B.C.’s consent to
reduce its transfer.
 The SCC (Sopinka J) overturned this decision, and allowed the cap on CAP.
 SUJIT CHOUDHRY notes three readings of this decision (CBp.445):
1. The agreement did not specify the amount of funding, so it was never breached.
2. The agreement was binding, but it could be circumvented by legislation (and only by
legislation).
3. The agreement only created political obligations, not legal ones.
o
There is debate over whether the Agreement on Internal Trade is legally enforceable



To what extent should gov be restricted in terms of spending power
o Equalization payments -- National standards vs race to bottom where differentiation b/w provs w/
lowered taxes to attract business etc or other taxation scheme that could deter wealthy from living
in prov
o Fragmentation of responsibility can result in reduced responsibility
 Hard to avoid in a federalist system
 Some provs may be better at regulating than others (eg Quebec) so while some might
benefit from prov expenditure in an area, others would be better to rely on fed.
Social Union Framework Agreement (SUFA)
o Was to provide for a normative framework for fed-prov relations in the social policy arena
o Shows how Canada has strong executive fed component w/ strong intergov
agreements/relationships
Concern w/ executive federalism is that it doesn’t accurately represent actual people/ citizens
(c) Delegation b/w govs (fed and prov)
o
o
o
intergovernmental delegation
In the Nova Scotia Interdelegation case (1951), the SCC took a principled and coherent position, saying that
neither Parliament nor the provincial legislatures could delegate legislative power to the other level of
government. (See Hogg for more on this case.)
However, the federal government and the provinces have used “devices” to get around this ruling:
1. administrative delegation: when one level of government carries out the functions legislated by the
other
2. incorporation by reference: when the laws of one level of government acknowledge the authority of
the other level’s law
3. conditional legislation: legislation which requires the other level of government’s approval before
coming into effect.
59
In the case of Coughlin v. Ontario Highway Transport Board, [1968] SCR 569 (CBp.447), - - the SCC upheld
sections of the federal Motor Vehicle Transport Act which delegated the licensing of interprovincial trucking
to provincial agencies. (Each of the provinces already had a Board regulating intraprovincial trucking, but
interprovincial trucking was technically under federal jurisdiction.)
-
Provs can be used as tools for experimenting w/ programs too
3. Aboriginal Governance and Federalism
ABELE AND PRINCE (WebCT)
-
-
Indians, inuit and metis have status
Status in inherited –entitlement to certain benefits etc
status vs. non-status indians
o may be non-status b/c ancestors weren’t there at the signing of the treaty, maybe b/c renounced in order to
acquire rights that ‘Indians’ couldn’t have at time, or maybe a female relative married non-Aboriginal, also
some communities just weren’t registered
Inuit and Metis don’t have same entitlements as First Nations
Benefits etc focus on reserves and not those living in cities etc
When living away from land base (reserve) they are a prov resp
60
-
-
-
-
Treaties
o Royal Commission on Ab Peoples
 Established by fed gov in 1991 and reporting in 1996
 Stressed salience of principles embodied in the original treaties, without recommending treaty
federalism as the sole modern embodiment of these principles
 Emphasis on mutually satisfactory, negotiated agreements
 Endorsement of nation to nation paradigm as a way of conceptualizing the relationship btw Ab
nations and peoples and the Crown (comprised of both fed and prov)
 Recognized extremely heterogeneous circumstances of contemp Ab peoples and made
recommendations about governance and participation that attempt to take all of diversity into
account ---(they aren’t just one group!!!!)
 Recognized 4 stages in relationship btw Ab groups and Crown
 Separate worlds bef 1500s ---(?reject doctrine of terra nullius??) – confirms Ab peoples as
self-gov – (?)
 After 1500s – nation to nation relationships/treaties – notion of needing to co-exist
 1800s onwards – gov still dominant and coercive –
o Even after WWII – things started to change as Ab peoples had served in war etc –
but assimilation is suggested
o But also w/ expansion of welfare state = new programs and funding for First Nations
 Recognition of Ab nationship
BC Treaty eg shows how dif levels of gov can work/negotiate together ---bilateral, trilateral, multilateral bargaining
processes –Nisga’a example – first modern day treaty in prov ---BC is one of two provs in Can in which the majority
of Ab people haven’t signed treaties
Eg of Province-building federalism
o = growing activism and thus enhanced significance of provs w/in the federal system especially since the
1960s
o refers to further strategic actions by govs of major provs to protect and manage prove economies and
communities and to guard against incursions by the fed gov into prov jurisdiction
o involves the creation of elaborate state apparatus and processes, reflected in policy structures, etc and
mixed patterns of conflict and collaboration w/ the fed gov.
o treaty process also speaks to interprov jurisdictions and federalism
 treaty process is significant arena in which BC gov seeks to uphold prov powers and promote prov
interests w/ respect to ec, governing and public policy matters
 prov state also highly sensitive to risk of Ottawa’s offloading federal responsibilities for Ab peoples
on prov
Eg of Nunavut
o Self-determination through public government rather than ethnically exclusive self-gov ---so non-Abs are
included as well as Abs in governance structure
o Shows use of territorial boundaries rather than ethnic/heritage etc to define idenity
o Territorial federal mechanism –structured like Quebec
o Territories lack status and power of provs
o –‘formula funding’ rather than equalization payments (for the funding received by fed gov)
o Difficulties faced
 High expectations ---much publicity international and national surrounding its creation
 High operating costs of governing up north --heating etc –even reflected in salaries
o Eg of flexible federalism --(why??)
61
-
Problem that fed gov deals w/ Ab groups in a SYMMETRICAL way
Problem that fed gov focuses on one group of Abs ---First Nations/ reservations
LECLAIR (WebCT) (also see same article at end of summary)
-
-
Federal constitutionalism ---sovereignty over own internal affairs and while indiv abs could participate directly in fed
and prov govs w/out having to proceed through the intermediary of ab representatives
Actors/ active members w/in Can Const rather than outside subjects acted on
Judicially developed strategies for Ab gov
Suggests moving away from formal legal text of const towards more informal/bottom-up/organic way of looking at
formal and informal sources of Const Law ---like history, lived practice
o This is what would allow Ab peoples to become actors w/in federalism rather than passive victims ----gives
them a role
Critique of cultural essentialism –and defining Abs by what they were in the past ---which keeps Ab peoples as
separate entities
Suggests treaty style federalism emphasizes pre-1950 historical horizon of ab/non-ab relationships and ignores the
interdependence born out of both coerced and voluntary proximity -----and also that it discourages participation
Identities are more nuanced than ab or non---multiple identities
Campbell v. AG BC (2000)
CP 627-630 – NISGA’A AGREEMENT
-
-
First modern day treaty in BC
Majority of Ab peoples in prov haven’t signed treaties (don’t have status???)
(Seems kind of like asymmetrical federalism type agreement)
Accusations that provides Nisg’a gov w/ legislative jurisdiction ---- which provides that they may make laws which
prevail over federal and prov laws –so inconsistent w/ div of powers granted to Parliament and the legislative
assembly of the provs by ss. 91 and 92 ---so arg that treaty was of no force or effect
Court (Justice Williamson of BC Supreme Court) ruled against challenge – finding that self-gov was a constitutionally
protected right within the Nisga’a Agreement
4. Quebec and Asymmetrical Federalism
-
PELLETIER (WEBCT) – ASYMMETRICAL FEDERALISM : A WIN-WIN FORMULA
o September 2004, fed and prov first ministers signed a health-care accord, which explicitly recognized the
principle of “asymmetrical federalism” and the possibility of the provs and territories having recourse to this
principle through specific agreements.
o many who now believe that asymmetry would increase mutual trust and bring about a lasting improvement
in relations between Quebec and the rest of Canada
o Focus on substantive (real) equality rather than formal equality
 Where formal = symmetrical
 and substantive (real) = asymmetrical
 where differential treatment might be necessary to achieve genuine equality
o he suggests that asymmetry might seem counterintuitive for federalism and for strong central gov
 b/ c of less unity, lack of common identity
 BUT that this isn’t necessarily true b.c maybe the identity of Can involves this
differential/asymmetrical type identity
62
-
 Where identification w/ prov or other group is more imp to identity or defines Can identity
 Question of what is Can identity then….
o Quebec already treated w/ certain measure of asymmetry
 De facto asymmetry b/c Quebec is a CVL prov
 Only prov to have explicit guarantee of representation on the Supreme Court of Canada
 The right to opt out of certain fed programs w/ financial compensation
o Asymmetry provided for in s.94
asymmetrical federalism relates to centralization b/c can be seen as counteractive to a strong central gov
asymmetrical federalism = equitive federalism
Sheppard suggests equalization payments (clause) are about substantive (outcome oriented) equality
Substantive equality relies on formal equality to a certain extent
o Procedurally etc
CP 456 – 466
o Eg of Meech Lake and Charlottetown Accords and an effort to constitutionalize recognition of Quebec as a
distinct society
 Aspects of distinction –lang – CVL law system
 Contested by Ab groups as they felt weren’t included in dialogue
 Charlottetown Accord had something for everyone but everyone found something they weren’t
happy w/
 In wake of this Quebecois recognized as a nation w/in a nation of Canada by motion by fed gov
((?????))

o
Note Quebecois recognized rather than Quebec – CULTURAL RATHER THAN TERRITORIaL
Whereas bef we looked at Secession ref for fundamental principles – here the SCC is dealing the
constitutionality of unilateral secession
Reference re Secession of Quebec, [1998] 2 S.C.R. 217
-
In wake of referendum
Right or not to unilateral secession
Issue –
1) Under Const of Can, can the Natinal Assembly, legislature or gov of Quebec effect the secession of Quebec from
Canada unilaterally? Held = No
2) Does int L (under right of sef-determination) give National Assembly, legislature or gov of Quebec the right to
effect the secession of Quebec from Canada unilaterally? Held = No
3) In the event of a conflict bw the Const and int L? Held = not imp to answer
Reasoningo
o
Initially assumption that Const doesn’t expressly prohibit secession so it’s legally possible but that would
require a (many) const amendment
Idea that while referendum has no direct role or legal effect in cont scheme – as part of the democratic
method (and thus democratic principle)
 ***if there were a clear majority who wanted to separate then there would be a moral and legal
obligation by Can to let secession occur
 Would need = CLEAR MAJORITY, CLEAR QUESTION, AND DUTY TO NEGOTIATE
 But would NEED significant majority and has to be a clear question
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o
o


What is a clear majority though?
Note actual question posed to voters during referendum (top of p464) had lang of
sovereignty not separation
o In wake of this - federal Clarity Act dealing w/ clarity – (An Act to give effect to the
requirements for clarity as set out in the opinion of the SCC in the Quebec Secession
Ref)
SCC imposes duty to negotiate
This shows movement of SCC towards dealing w/ processual issues and not just substantive
results
Ratio - Where there is no apparent answer to a constitutional question in the written text of the Constitution, the Court
may resort to unwritten constitutional principles such as those of federalism, democracy, constitutionalism and the rule
of law, and respect for minorities, in order to fill the gaps. These unwritten principles are incorporated by reference in
the preamble of the Constitution Act, 1867 and developed over time with the “living tree”.
Comments:
The Quebec government refused to take part, and the amicus curiae appointed by the Court to represent the case for the
legality of secession argued that the case was not justiciable (it entailed political rather than legal questions). The Court
unanimously found that the case was justiciable.
VI.
Human Rights: Antecedents of the Charter
1. Rights, Racism and Federalism
CP 644 - RIGHTS AND FEDERALISM
Three themes pre-Charter for dealing with rights:
A) Rule of law
B) ** Protection of rights in the basic idea of federalism itself and
a. in the terms of the BNA Act
b. early federalism cases dealing w/ racial discrimination
c) Protection of rights in decisions about the divisions of powers  *****Implied Bill of Rights
-
Idea of federalism etc: Separating groups can debate and resolve differences about rights through public discourse if
combined in the same state.
E.g., Conflict between Anglophone Protestants in Ontario and Francophone Roman Catholics in Quebec
o
o
o
o
Ss.92(13), 92(16), 93 gave provinces exclusive power to legislate in relation to education
Minorities in provinces feared oppression of religion, language and schools
Confederation designed in part to protect these minorities
Limitations by s.93:
 Provincial legislation could not prejudicially affect religious schools established before Confederation
 Appeals could be made to federal Cabinet against prejudice legislation affecting schools established
after Confederation
CP 645 - FEDERALISM AND RACE
-
Long history of racial discrimination against Chinese and Japanese persons in Canada
o 1850s: Influx of Chinese from US as northward shift in search for gold. 1860s: Immigration from China
begins, especially in BC. 1880s: Immigration from Japan begins, especially in BC
64
o
o
These groups were subject to much discriminatory legislation, e.g., restricted immigration by prohibitions,
head taxes, language tests, restricted eligibility for public offices, imposed discriminatory licence
requirements on businesses and prohibitions against employment.
Why? (a) Belief in white superiority and fear of different and unknown; (b) Fear of competition because of
Asian work ethics and willingness to work long hours for low wages
-
Naturalization Act of Canada, s.24, provides that:
o An alien to whom a certificate of naturalization is granted shall, within Canada, be entitled to all political and
other rights, powers and privileges, and be subject to all obligations, to which a natural-born British subject
is entitled or subject within Canada…
-
Courts used federalism args to strike down racist prov laws  federalism arg not so great at dealing w/ this
Union Collery Co. v. Bryden [1899] – BC  Naturalization  expansive def’n employment/labour
Facts
- Amendment to s.4 of Coal Mines Regulation Act prohibited persons from China from being employed in mines
under the pretense that inability to speak English caused dangers, especially below ground.
- Bryden, a shareholder in Union Colliery, sued Union Colliery for employing Chinese workers, in hopes of having the
law declared ultra vires.
Issues
- Did B.C.’s discriminatory law encroach on federal jurisdiction?
Held
- Yes
Ratio
- Lord Watson held that, although the Act had to do with property and civil rights, it also encroached on the federal
s.91(25), “naturalization and aliens.”
- Watson held that s.91(25) included not just the process of naturalization, but also the rights and privileges of
people who have been naturalized.
- Watson interpreted the rule to apply only to aliens and naturalized subjects (i.e., not to Canadian-born Chinese),
and therefore found that the pith and substance of the regulation was naturalization and aliens
- = found P&S to be discriminatory.
- = expansive def’n of naturalization of aliens
- (=precursor to mobility rights provision???)
- ( court say not up to them to discuss moral etc aspect of laws but just dealing w/ jurisdictional issues.)  same with
Tomey Hommaand Quong Wing.
Cunningham v. Tomey Homma [1903]  inconsistent w/ Union Collery  political rights
Facts
- B.C.’s laws prohibited Japanese (whether naturalized or not) from being entered on the electoral rolls. Tomey
Homma applied to have his name listed, and Cunningham (the official) refused.
- Not just immigrants restricted from voting but also children == race based!
Issues
- Was B.C. ultra vires in banning Japanese from voting?
Held
- No
Reasoning
- Lord Halsbury acknowledged that the Naturalization Act of Canada stated that “a naturalized alien shall within
Canada be entitled to all political and other rights, powers and privileges to which a natural-born British subject is
entitled in Canada.”
- he found that the B.C. law fell under s.92(1), regarding the constitution of the province (repealed in 1982). It
65
was within the province’s power to grant suffrage or take it away; suffrage was a “privilege.”
Halsbury distinguished Union Colliery, since this dealt with the “ordinary rights” of inhabitants of B.C. Again, the
JCPC said that it was not assessing the wisdom or fairness of the law. (also Union Collery deals with broader
destinctions)
- “The right of protection and the obligations of allegiance are necessarily involved in the nationality conferred by
naturalization; but the privileges attached to it, where these depend upon residence, are quite independent of
nationality” (Cb, 649).
- Racial exclusion allowed/ b.c on its own and not connected anything else
Comments
- Decision inconsistent with Union Collery decision
- Initially court distinguishes them but later says Tomey gives spin on Union Collery
- Political rights here vs employment.labour rights in Union Collery
-
BRUCE RYDER, “Racism and the Constitution: British Columbia Anti-Asian Legislation, 1872-1923” (CBp.650)
- Ryder says that Cunningham v. Tomey Homma’s limiting of the Union Colliery case can only be understood in terms
of the racist assumptions and beliefs prevalent in society at that time.
- “Provincial laws imposing racial disabilities were held to be valid when they were believed to rest on accurate
assumptions about racial difference.”
- Thus no one could be prevented from earning a living (especially as a labourer), but voting rights and rights as
employers were another matter.
Quong Wing v. The King [1914]  Asian couldn’t hire white woman  federalism not good at protecting from
racism
Facts
- Saskatchewan enacted the Female Employment Act, which prohibited any “Japanese, Chinaman or other Oriental
person” from employing a “white woman or girl.”
- Quong Wing, a naturalized Chinese person, employed two white women as waitresses in his restaurant, and was
charged under the Act.
- (No definition of “Chinaman” regarding naturalized or not)
Issues
- Was the legislation ultra vires?
Held
- No
Reasoning
- Policy of exclusion
- Fear of intermarriage
- In an ultra-formalist judgment (“What objects or motives may have controlled or induced the passage of the
legislation in question I do not know.”),
Davies J found that the right to employ white women was an issue of property and civil rights (under s.92(13), and
that it was one that the legislature could grant or take away. He saw no constitutional reason why such a right could
not be denied to a racial group.
- He distinguished Union Colliery, because he did not find that the p&s of this law dealt with naturalization and aliens.
- In dissent, Idington J argued for equality rights, and condemned the Female Emloyment Act as being “the product of
the mode of thought that begot and maintained slavery.”
- ((He also appears to have made a paramountcy argument, based on the Naturalization Act of Canada.))
- Idington J would have read down the legislation to have it only apply to non-naturalized “Chinamen
Comments
- *****Federalism obvi not very good at providing ENOUGH to protect from racism
- Also NOTE that fed gov not a ‘hero’ in terms of racist legislation  had their own probs
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2.
Religious Education and
Minority Language Rights (see later in Charter section)
- See later in Charter section ….
3. The Implied Bill of Rights and the Canadian Bill of Rights
-
also overlaid w/ federalism issues
focus on fundamental liberties
narrow formalistic interpretation  changed to broader inclusive strategies
Implied bill of rights
= The idea that the Constitution prevents both levels of government from enacting laws that interfere with the exercise of
fundamental freedoms (e.g., freedom of expression or religion).
 This implies that there is a zone of liberty into which the state must not unjustifiably enter.
 Antecedent of the Charter of Rights and Freedoms
 May have resulted from preamble of the BNA Act
Chronological Evolution:
1) Implied Bill of Rights (1938). Early traces of the Implied Bill of Rights in Quong-Wing case. Unwritten principles still
exist, even with the Charter. Most recently articulated in the Seccession reference
2) Canadian Bill of Rights (1960). This is a federal statute, not a constitutional amendment, but considered to be more
important than other federal statutes  it’s still around (i.e., will render other statutes inoperable in cases of
conflict).
3) Canadian Charter of Rights and Freedoms (1982, + equality provision in 1985).
4) International human rights documents post-WWII. (e.g., International Covenant on International Civil and Political
Rights)
CCRF is most important, but gaps still exist that may be filled in with bill of rights.
Reference re Alberta Statutes [1938] publication gov propaganda
Facts
- The newly-elected Social Credit government introduced the Publication of Accurate News and Information
Bill, which required newspapers to publish statements of government propaganda (“that it considered
necessary to correct public misapprehension… power to require disclosure of sources and the names of
authors”).
- When the Lieutenant Governor refused to assent to the Bill (as well as two economic policy bills), the issue
was referred to the SCC
Issues
- Was the Bill ultra vires the province?
Held
- Yes
Reasoning
- Cannon J held that the bill was in pith and substance criminal law, because it dealt with public wrongs, not
private ones, and concerned matters that were traditionally dealt with under criminal law (“seditious libel”).
- Cannon J then linked the preamble of CA1867 to democracy, which he linked to freedom of speech.
- However, he went on to say that Parliament could curtail freedom of the press “if deemed expedient and in
the public interest.”
- Duff CJC made a stronger stand in favour of free speech (derived from the preamble), although he too
admitted that it could be limited in certain ways. (He said that Parliament had the authority to legislate for the
“protection” of free speech.) The provinces certainly could not interfere.
67
Comments
- General, expansive arguments that rely on preamble
Saumur v. City of Quebec [1953]  JW’s and their pamphlets
Facts
- Saumur, a Jehovah’s Witness, was convicted for distributing pamphlets in the streets under Quebec City’s
anti-pamphleting by-law.
Issues
- Is by-law ultra vires?
Held
- Yes
Reasoning
- Rand J denied that the by-law was in pith and substance concerned with the regulation of streets (as the city
claimed). He held that freedom of religion originated as a pre-legal right. He also drew support from the
protection of denominational schools in CA 1867, and from the preamble. He held that, if provincial legislation
would need to encroach on rights incidentally, it should have to be specific.
- Rinfret CJC, dissenting, took a formalist approach: He took the by-law at face value, accepting that it had
nothing to do with religion. He nevertheless objected to the content of the pamphlet, and quotes some of the
more spectacular passages in his judgment in order to discredit the Jehovah’s Witnesses.
Comments
- Rand J. states that religious freedom is of national concern, while dissenting Quebec judges state they are
simply matters of property and civil rights.
Switzman v. Eibling [1957]  communism
Facts
- Quebec’s infamous “padlock law” made it illegal to use any house to propagate communism. Switzman used
his house to propagate communism, and his landlord tried to evict him.
Issues
- Is ‘padlock law’ ultra vires
Held
- Yes
Reasoning
- Rand J relied on the preamble, which he said implied freedom of speech.
- He denied that the law could be narrowly defined to fall under s.92(13) or s.92(16).
- He did however apparently leave open the possibility that Parliament could limit free speech using the
criminal law power (in crimes like sedition).
- Abbott J appears to have gone even further, arguing on the basis of the preamble that neither the provinces
nor Parliament could “abrogate” the right of discussion and debate. (Although he did acknowledge the criminal
law power and POGG.)
- ***This = the first suggestion that the federal government could also be bound by the implied bill of rights.
(It’s interesting to compare this to Idington’s dissent in Quong Wing.)
- Taschereau J dissented, arguing that this law could not be considered a criminal law, because it did not take a
criminal law form (prohibition and penalty). He felt that it had more to do with suppressing the conditions that
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led to crime.
- While acknowledging the importance of freedom of speech, he argued that communism was a threat to that
freedom, and so on. (so limits to indiv freedoms to ensure greater good type arg)
Comments
- Compare Taschereau’s arg to later hate speech discussions
AG Canada v. Dupond [1978]  no demonstrating
Facts
- Dupond challenged a Montreal municipal by-law which imposed a 30-day ban on any demonstrations or
public gatherings.
Issues
- Was the by-law contrary to the implied bill of rights (or the the Canadian Bill of Rights)?
Held
- No
Reasoning
- Beetz J accepted the implied bill of rights, but held that marching was not included. He held that
“[d]emonstrations are not a form of speech but of collective action (i.e., distinguishes between freedoms of
speech and of action). They are of the nature of a display of force rather than an appeal to reason…”
- He distinguished freedom of speech, freedom of association, freedom of assembly etc. from the right to hold
a demonstration on public ground, which was not part of British law (and therefore not covered by the
preamble). (The Canadian Bill of Rights only applied to federal laws.)
- None of these freedoms are exclusively within federal or provincial matters.
Ontario Public Service Employees’ Union v. AG Ontario, [1987] implied bill of rights used regardless of
charter
Facts
- OPSEU challenged the Ontario Public Services Act’s provision that prohibited public service employees from
participating in political activities, including running in provincial or federal elections.
Issues
- Does the OPSA go against the implied bill of rights by interfering with the basic constitutional structure?
Held
- No
Reasoning
- The OPSA is concerned with the constitution of the province and regulating provincial pubic service. It affects federal
and provincial elections only in an incidental way.
- Beetz J again referred to the implied bill of rights, and said that it remains in effect even though we now have the
Charter. (Of course, he said it didn’t apply in that case either.) The Quebec Secession Reference of course implied various
rights and principles too. Judges may be implying new rights (even after 1982) in order to give themselves more
discretion.
((-Can see that after Implied Bill of Rights, courts became more comfortable w/ reading into cases b/c framework had been
set ))
Canadian Bill of Rights
CB 675

Enacted by Parliament in 1960; initiative by PM Diefenbaker
69




Two important external influences:
o International declarations about rights (UN’s Universal Declaration of Human Rights);
o the American Bill of Rights and the liberal interpretations by the SCC from the 1950s (esp., Brown v. Board
of Education a landmark decision about equality btw blacks and whites).
See excerpt of Bill of Rights beginning p. 676
The Canadian Bill of Rights is simply a statute of Parliament and is not entrenched. –
o Consequences:
 Can be amended, repealed, changed by maj. vote
 Governs only within federal jurisdiction (provincial autonomy protected);
 There are no special amendment procedures (although there have not been any significant
amendments)
Two major issues:
o Does the Bill override other statutes?
o How should the courts interpret the Bill (expansively or restrictively)?
The Canadian Bill of Rights is still in effect, but it has largely been eclipsed by the Charter.
-
something can violate both Can Bill of Rights and Charter
it includes some rights not cov’d by Charter
 e.g., “the enjoyment of property”  not in Charter b/c reflects concerns at time
It was enacted in 1960, a federal statute, and only applies to federal laws and government action.
o Sheppard asks why not more const entrenched prov human rights legislation
 Eg Quebec Charter
 Quebec will often try to use inoperability w/ Quebec Charter before resorting to Can Charter
 to avoid centralization
o Paramountcy could not be used to apply it to provincial laws.
The SCC was conservative and formalistic throughout the 1960s and 1970s, and the Canadian Bill of Rights was
interpreted narrowly.
-
Human rights statutes were enacted in most (all?) provinces during this period too.

-
In 1976 Quebec enacted its Charter.
 The SCC has said that these should have “quasi-constitutional” status.
Equality Provisions
R v. Drybones [1970]
- only case where the SCC used the Canadian Bill of Rights’s equality provisions to make part of another federal statute
inoperable.
o The Indian Act makes it an offence for any Indian to be intoxicated off a reserve.
o While there were also criminal laws making it an offence for anyone (Indian or not) to be intoxicated in a
public place, the penalties for Indians being intoxicated off a reserve (in a public place or not) were much
harsher.
o = offensive provision in Indian Act
o Result = differential treatment = rendered inoperable
o In subsequent cases, the SCC retreated completely.
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AG Canada v. Lavell [1974]
case challenged the section of the Indian Act which said that an Indian woman marrying a non-Indian man would lose
her Indian status, while an Indian man who married a non-Indian woman would not.
(It enshrined a patrilineal definition of Indianness.)
In a 4-3 split, the SCC rejected the challenge. Ritchie J relied on a classical Diceyan formulation of the rule of law to
interpret “equality before the law.”
  but used it to see equal application across entire group of Aboriginal women  as in equal over who it
applies to  and since only applies to them….
In subsequent litigation, Aboriginal women went through international human rights channels. The Sandra Lovelace
case from New Brunswick succeeded at the UNHRC. ((see later on ))
This is the background of the wording of s.15 of the Charter, where it talks about equality “before and under the
law.”  substantive equality
Following these Indian Act cases, the SCC was willing to uphold discriminatory legislation as long as there was a “valid
federal objective” (which didn’t even need to be specified).
Bliss v. AG Canada [1979]
- challenged the long qualifying period for unemployment insurance benefits for women whose employment was
interrupted by pregnancy.
- Bliss argued that she just wanted reg. unemployment insurance  not mat leave argued that she was available for
work  she had been laid off because she was pregnant—she actually would have wanted to keep working.
- The SCC refused the challenge unanimously. Ritchie J wrote that the unemployment insurance rules did not discriminate
on the basis of gender, but only on the basis of being pregnant or not. (“Any inequality between the sexes in this area is
not created by legislation, but by nature.”)  = narrow interpretation of equality
 ((Today, Ritchie J.’s argument has been somewhat repeated in autistic children cases. ))
- Ritchie J also distinguished Drybones by saying that unemployment insurance was about benefits, not penalties, a
privilege not a right.  where if gov provides benefit, has to provide it equally
- This is the background of the wording of s.15 of the Charter, where it talks about “the equal protection and equal
benefit of the law.”
((The SCC explicitly overruled Bliss in the Brooks case in the 1980s. ))
5)
Notion that the Charter goes beyond Can Bill of Rights
VII. THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
-
NOTE that Charter doesn’t really deal w/ social or ec. equality…
The Advent of the Charter and Approaches to Charter Interpretation
(CP 683)
-
Themes highlighted by Sheppard in material
o Factors in emergence of Charter
 1) Charter in sync w/ int’l movement to solidify and entrench human rights
A. CAIRNS, Charter vs. Federalism: The Dilemmas of Constitutional Reform
(1) The Erosion of Britishness – British parliamentary supremacy gradually lost its central position and prestige in
Canadian identity, especially with a large influx of immigrants who were unfamiliar with British parliamentary traditions.
71
From the 1950s to the 1980s, Canada became increasingly interested in American constitutional theory over British
traditions.
(2) International Sources of Politicized Ethnicity – Post-war trend of escalated nationalism and ethnicity that
politicized domestic cleavages (social movements re: language, race, ethnicity, gender, disability, youth, etc.) that diffused
with easy mobility of persons and ideas across national borders.
(3) The International Rights Dimension – Canadian human rights movement was most influenced by UN’s push for
respect for fundamental freedoms and human rights (1945 Charter, Universal Declaration of Human Rights). Reception
was lukewarm at first, claiming superior protection of rights under the British tradition, but became more open
throughout the decades.





2) Domestic law reforms
 Anti-discrimination laws/human rights codes
 Emergence of statutory recourse  rather than const amendments
3) Social movements’
 Women’s rights movement  esp in Eng. Can
 Disability rights etc (remember the sudden multiplication of wheelchair ramps and
wheelchair friendly sidewalks)
4) Civil Rights Movement in US
 Seen as model for many countries
 Can. was looking towards US and away from UK
5) Response to Can society becoming more heterogeneous w/ more immigration  action on
implied rights and freedoms no longer good enough  desire for actual legal text as
symbolic/educational/reassuring for incoming Canadians and as a model
6) Charter as a nation building tool
 Statement of national values
 Countered growing fragmentation
P. RUSSELL , The Political Purposes of the Canadian Charter of Rights and Freedoms (CB, 689)
2 purposes of Charter: (1) to contribute to national unity; (2) to protect rights. This excerpt focuses on national unity.

From mid-1960s, Quebec had been pushing for constitutional change (‘quiet revolution’). The Pearson
government responded by fiscal and administrative arrangements.

Confederation of Tomorrow Conference raised importance of Quebec’s constitutional discontents, and
discussions of a constitutional reform were pursued. Proposals were designed to meet Quebec’ demands in a
manner that would have a unifying effect on Canada. Provincial governments were pushed to give priority to
“that part of the Constitution which should deal with the rights of the individual – both his rights as a citizen of a
democratic federal state and his rights as a member of the linguistic community in which he ahs chosen to live”
(690).

Canada also influenced internationally: WWII, increasing concern for human rights, obligations to UN’s
Declaration of Human Rights, regret of treatment to Japanese Canadians, persecution to Jehovah’s witnesses,
repression of trade unionism, implications of post-war immigration

1960: Diefenbaker enacted Bill of Rights for federal government

1960s and 70s: “This emphasis on the connection between a constitutional Bill of Rights and the federal powers of
reservation and disallowance underlines a constitutional charter’s capacity for imposing national standards on the
provinces”

1978: Additional reasons for Charter: Application of European Convention on Human Rights to UK, accession to
International Covenant of Civil and Political Rights (1976), enactment of human rights legislation by provinces,
interest in constitutional codification of basic rights.

1971: Constitutional Bill of Rights replaced Victoria Charter. Trudeau wished to make this one binding to the
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provinces as well despite resistance to secure provincial agreement on patriation. “The insistence on coupling a
constitutional charter with patriation shows how strongly the Trudeau government believed in the nation-building
potential of a constitutional charter. They would risk dividing the country in order that it might become more
united” (693).
L. WEINRIB, Of Diligence and Dice: Reconstituting Canada’s Constitution (CB, 693)




Early 1960s: Goal of patriation with an amending formula to remove colonial status through BNA Act
1967: Goal broadened to include language rights and minority education rights in Report of the Royal Commission on
Bilingualism and Biculturalism
1971: Failed attempt with Canadian Constitutional Charter, 1971 aka Victoria Charter to protect political freedoms. It
was refused by Quebec because there was no provision for rights to minority language education and other social
protection
1978: Bill C-60 (Constitutional Amendment Bill) expanded Victoria Charter’s fundamental freedoms (protection for
freedom of press, right to life, liberty and security of person, right against deprivation of property contrary to law,
right to equality before the law and equal protection of the law). Also protected rights of citizens (mobility,
property holding, regardless of race, ethnicity, language, religion, age, sex). Expanded rights protected but
weakened mode of protection: VC was worded as though rights always existed, whereas the Bill states that each
“shall enjoy and continue to enjoy” rights.
L. WEINRIB, Canada’s Charter of Rights: Paradigm Lost? (CB, 695)
All drafts of the Charter reflected strong concern of legitimacy of judiciary. Two important elements of the Charter mark
culmination of federal-provincial negotiations, as ‘ways out’.
s.1 – Guarantee and limitation clause requires the state to formulate, as law, any exercise of power that limits guaranteed
rights
s.33 – Notwithstanding or override clause gives legislatures the last word (for max 5 yrs) unless the constitutional context is
transformed or consensus for constitutional amendment is met

Exclusion of Quebec in final negotiation of Charter in repatriation of Charter
 So Quebec thought process was illegitimate not content
M.E. GOLD, “The Mask of Objectivity: Politics and Rhetoric in the Supreme Court of Canada”
- SCC ruled that support of only Ontario and NB for original federal Charter initiative was not sufficient to declare the
federal Charter initiative (i.e. proposal to amend the constitution) constitutional therefore it could not go ahead until it got
more support from the other provinces
-common front between QC and other seven provinces opposed to the initiative fell through, partly because of mistrust of
QC, but also because public opinion was shifting in favour of Charter and constitutional amendment, and the provincial
governments were afraid to appear as obstructionists
-Quebec took this as an affront and Charter issues became one more battle ground in constitutional wars on division of
powers (generally) and QC’s place in confederation
Basic Structure and Framework for Interpreting Rights
-
2 prong approach for IDing violation
o Whether or not violates particular section of Charter/issue
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o
If there is a violation/infringement  is it demonstrably justified that should be subject to such reas limits
in free and democratic society (s.1 Charter)
 Gov has burden of proof to show this
 Criticism that you can gerrymander s.1 to fit problematic freedom violation by using a BROAD
INTERPRETATION
 Courts have taken dif approaches to dif sections of Charter
 w/ eg. internal limits
 some proof that courts would rather find no violation at all rather than a justified infringement
(CP 737)
-
The Purposive Approach
SCC has said A judgment about the scope or value of a particular right can only be made after the courts has ‘specified
the purpose underlying’ the right or ‘delineated the nature of the interests it is meant to protect
Hunter v. Southam [1984]  living tree approach  purposive approach
Facts
- Early Charter case  s. 8 guarantee of freedom from unreasonable search and seizure
- Search of newspaper offices carried out by the Combines Investigation Branch
- Statutory basis for search didn’t require prior judicial authorization
IMP  Dickson’s general comments about const interpretation –p738 – on dif btw statutory and constitutional
interpretation
 “A statute defines present rights and obligations. It is easily enacted and as easily repealed. A Constitution, by
contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate
exercise of governmental power, and when joined by a Bill or Charter of rights, for the unremitting protection of
individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must,
therefore, be capable of growth and development over time to meet new social, political and historical realities
often unimagined by its framers.”
 He said that the Charter “is a purposive document. Its purpose is to guarantee and protect, within the limits of
reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action
inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action.”
 Dickson CJC said that before one could assess the reasonableness of an impugned law or action, one would have
to specify its purpose.
 LIVING TREE APPROACH  vs statutory purposive approach which is frozen approach rejected in Persons’s
case(?)
- According to Dickson CJC, the purpose of s.8 was to protect a reasonable expectation of privacy, and the impugned
provisions of the Combines Investigation Act clearly violated this. Therefore they were illegal.
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Big M Drug Mart (deats on purposive)
(see also later on in summary for actual case) Lord’s Day Act violation of freedom of religion
 Dickson CJC elaborated this “purposive” approach to interpretation:
 “…the purpose of the right or freedom in question is to sought by reference to the character and the larger
objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical
origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights
and freedoms with which it is associated within the text of the Charter.”
 Dickson CJC argued for “a generous rather than a legalistic” interpretation.
 “At the same time,” Dickson wrote, “it is important not to overshoot the actual purpose of the right or
freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore…be
placed in its proper linguistic, philosophic and historical contexts.”
- Courts agree on imp of
o Larger purposive inquiry
o Contextual  esp. in relation to crim ( eg of Lavallee case and “Battered Wife Syndrome”)
o Historical origins of questions
o As applicable to other relevant rights and freedoms so CHARTER SHOULD BE INTERPRETED AS A WHOLE
- This shows new era where Charter is in use rather than Bill of Rights
o Era of protection of indiv and collective rights
Sources/aids of interpretation
for purposive interpretation
(CP741-748)
1. Interpretive Provisions in the Charter
1. Text of Charter
2. General normative values
o Charter includes several provisions that don’t entrench a particular right but AFFIRM
or HIGHLIGHT CERTAIN VALUES THAT ARE TO BE TAKEN INTO A CCOUNT WHEN
INTERPRETING the entrenched rights and assessing the justification under s. 1
 S.27 Charter “shall be interpreted in a manner consistent w/ the
preservation and enhancement of the MULTICULTURAL HERITAGE OF
CANADIANS”
 S.28  “notwithstanding anything in this Charter, the RIGHTS and
FREEDOMS referred to in it are GUARANTEED EQUALLY TO MALE AND
FEMALE PERSONS
2. Parliamentary and Committee Debates (w/ a bit of drafter’s intent)
 Eg. Reference re. Section 94(2) of the Motor Vehicle Act (BC) (see later in Life, Liberty and
Security of he Persons section)
o Court considers RELEVANCE OF THE COMMITTEE AND PARLIAMENTARY DEBATES,
which preceded the enactment of the Charter, to the interpretation of the
entrenched rights
3. Canadian Pre-Charter Jurisprudence
 In several early Charter judgments, SCC signalled that decisions under Can Bill of Rights had
ONLY LIMITED RELEVANCE to Charter cases B/C OF DIF CONST STATUS AND STRUCTURE OF
THE CHARTER
o Eg . R v. Therens
4. International Sources/jurisprudence  comparative jurisprudence
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
Eg. American Bill of Rights, International Covenant on CVL and Political Rights (adopted by
UN), European Convention for the Protection of Human Rights and Fundamental Fredoms
o American cases often used but with caution due to immense differences in context
etc
o Also note that Canada is bound by international obligations in terms of human rights
ALTHOUGH NOT BOUDN BY INTERNATIONAL LAW
D. GIBSON, “The Law of the Charter: Equality Rights”
International Human Rights Instruments:
- most fundamental: UN Universal Declaration of Human Rights 1948: legal equality (art. 7), etc.
- International Covenant on Economic, Social and Cultural Rights; International Covenant on
Civil and Political Rights (with UN Human Rights Committee, hearing complaints re countries
who agree to be bound by its jurisdiction); Optional Protocol to the International Covenant on
Civil and Political Rights (1966) + Universal Declaration of Human Rights = International Bill of
Human Rights: extend the rights and establish enforcement machinery for the UNUDHR and
now contains over 60 instruments, most focusing on inequality and discrimination (esp. racial
discrimination)
1. The Merits of Entrenchment and the Legitimacy of Judicial Review / 2.Approaches
to Interpretation Revisited
-
Integral connection btw approach to interpretation and extent of role of judges
Broad/liberal approach to interpretation raises questions as to role of judges/judicial review
o Too broad of an approach?
The left-wing critique of the Charter:
 Judges are not representative: they are elite lawyers with strong ties to business.
 Access to justice under the Charter is expensive.
 Historically, legislatures have been more progressive than courts.
 The Charter enshrines only negative rights, not positive rights.
 The Charter enshrines a classical liberal vision which sees the state as the source of infringement of rights, ignoring
private infringements on rights.
 The Charter turns political issues into legal ones.
The liberal response to critique of Charter:
 The insulation of judges from politics is a good thing, allowing them to make principled and reasoned decisions.
 There are flaws in the democratic process, and the Charter reinforces the representation of under-represented
groups. Taking this further, the Charter protects minorities from the tyranny of majorities.
 Courts don’t tell legislatures what to do; courts and legislatures have a “dialogue.”
 The Charter originated in the choice of democratically elected legislatures.
 Charter cases have a public aspect. They frame abstract issues in terms of human stories, and this may actually be
more conducive to broad public debate than the legislative process.
 The Charter forces the government to deal with important issues which may be politically taboo.
Critiques of judicial review based on charter
critique from the left
o what is the point of giving power to a group, elitist, that does not understand the interests and needs of the
people who are claiming them (less wealthy)
o Charter reflects understanding of government as in 19th C: freedom = no intervention by the state, state is a
source of limits on freedom  in reality, problems that are affecting freedom (poverty, etc.) can only be
solved by state protection and intervention (welfare state)
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o
-
People with resources to litigate have more power, therefore Charter used to help powerful, weak have no
access!
o But what rights are protected? Charter only protects civil and political rights (classic liberal) and not eco and
social rights, which may be at least necessary conditions for exercising the other rights
o Anti-democratic
 Anti-checks and balances
 Reduced dialogue
 Judges are elite portion of pop.
o Legislation of politics
 Is truly possible for judges not to import own belief system/biases etc.
Critiques from right include
o Too much influence by activist groups
Response to critiques
 Principle Interpretation (Weinrib) – Judges are interpreting the constitution; they actually are very restrained
o Conservative commentators would say the judges should only find rights which are clearly written in the
Constitution. The problems are that some concepts are open to interpretation, e.g. liberty, and new
concepts won’t be in the Constitution, e.g. right to same-sex marriage, abortion.
o Weinrib: Even if you don’t stick to the drafters’ intent, but try to understand underlying interest, judges are
still engaged in principled decision-making, separate from politics
 Representation reinforcement Theory (Monahan) – Judges should step in where there is a flaw in democratic
process only, not whenever they wish to impose their views. Classic example: American idea that if a discrete and
insular minority that does not have adequate representation, judges are justified to intervene because these groups
will not be able to have democratic majority.
o Fundamental to protect minority rights
 Imp to have check on political institutions and courts are only body that really have this  imp for
when political/legislative processes aren’t working when there is a procedural issue in democratic
process  so judges would be REINFORCING DEMOCRACY
 How do you determine when democracy has gone wrong? Judge’s leeway.
 Dialogue Response (Hogg and Bushell) – Dialogue (challenges) between legislature and judiciary. In many cases, the
SCC’s decision is not the final matter; the legislature would modify the decision. People are getting more cynical
about this. The mechanisms are:
o Notwithstanding clause. Legislature can strike down with regards to s.2 and ss.7-15 (language, equality
rights) of Charter.
o S. 1 of the Charter. Courts say ‘you can use this objective, but you have to use different means’.
o Dialogue still exists b/c pathway left open for some legislative amendment in the form of
dissent/commentary etc
 Obiter can have important shaping effect
- Internal limits on rights. ‘the way you are violating the rights are fundamentally objectable, so you must turn around
the legislature (e.g., to include a minority group)’. E.g. Thibodault case
BOGART, “Courts and Country” (CBp.701)
The Case for the Charter:
The Charter allows minorities to assert their rights. Before the Charter, Canadian society was elitist—executive federalism was
rampant. The Charter has strengthened other identities, e.g. women across Canada. There are conditional bases for accepting the
Charter—e.g. as long as judges do not use it to review the substantive decisions of legislatures.
The Case against the Charter:
- The Charter did not arise because of popular demand; it was designed by Trudeau to centralize Canada and combat Quebec
nationalism. In most cases, elected legislatures have been more progressive than judges. Legislatures are more open and
democratic than courts. The courts are way too expensive for most people.
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The following articles show development of attitudes towards the Charter and judicial intervention through time
PETTER , “The Charter’s Hidden Agenda” (1987) (CBp.704)
The Charter is “a regressive instrument more likely to undermine than to advance the interests of socially and economically
disadvantaged Canadians… [and is] at root, a 19th century liberal document set loose on a 20th century welfare state.”
Negative rights represent a systemic bias in favour of the upper classes.
Progress has come through legislatures not courts; if the Charter is progressive it is only in upholding legislation.
- Citizens’ groups will blow their money on Charter challenges, which are extremely expensive, thus limiting access to the courts.
Judges are wealthy lawyers and their decisions will reflect their class interests.
MONAHAN, “Politics and the Constitution” (1987) (CBp.708)
Monahan believes that Charter review should not be based on substantive ideas of justice. Rather, it should be “directed towards”
two distinct values: democracy and community. “…judicial review should be conducted in the name of democracy, rather than as a
means of guaranteeing or requiring “right answers” from the political process…”
- Monahan here draws on the idea of “representation reinforcement”: judicial review should try to ensure equal access to and
participation in the political process. Judges should be aware of their roles, and intervene only when the democratic process is flawed.
WEINRIB, “ ‘Limitations on Rights’ in a Constitutional Democracy” (1996) (CBp.711)
-
Weinrib describes a “supremacy of rights” model for understanding the Charter.
This is a liberal vision, emphasizing the dignity and autonomy of each individual.
The goal of the political community is to provide a structure in which each individual can pursue her conception of the good.
Legislatures are not designed to protect individual rights, and they often overlook minority issues.
An independent judiciary can keep legislatures in line, safeguarding the coherence of the legal system and its commitment to
rights
- Rights are not absolute. They “must be read as conditional upon the preservation of the whole system of government committed
to those underlying values,” and they can give way to the deeper principles underlying them. They cannot however simply give way
to assertions of majority interests.
HUTCHINSON, “Waiting for Coraf: A Critique of Law and Rights” (1995) (CBp.713)
-
Hutchinson’s critique of the Charter comes from both left and right.
He says that Charter rights are indeterminate, and that the act of interpretation can never be objective.
Charter cases are really about resolving social and political conflicts.
It is paradoxical to justify the Charter in terms of some kind of societal consensus of values. If we really had a consensus, we
wouldn’t need a Charter! All of the Charter litigation since 1982 proves that we have widely divergent values within Canadian
society.
- If we really has a consensus, why would we find it necessary to entrench it in a document that is almost impossible to change and
entrust the enforcement of that document to a small, unrepresentative group of people?
HOGG AND BUSHELL, “The Charter Dialogue Between Courts and Legislatures” (1997) (CBp.715)
-
Hogg and Bushell respond to critics of the Charter by describing a “dialogue.”
Courts can put issues into public debate and onto the legislative agenda.
Legislatures can reverse, modify or avoid judicial decisions.
In most cases, legislatures can respond to Charter review by making minor modifications that do not compromise the objective of
the legislation.
- The Charter has four features that facilitate dialogue:
s.33 provides a way for a legislature to circumvent the Charter.
s.1 limits rights to what can be reasonably justified.
Some rights contain internal limits, e.g. s.7 and s.8.
Equality rights give legislatures a choice between extending benefits to all or denying them to all.
-
There are also “barriers” to dialogue. The Morgentaler case provides an example of an issue becoming so divisive that legislatures
don’t want to touch it.
- The Charter has an influence beyond judicial decisions, such that legislatures consider rights questions when drafting legislation.
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Vriend v. Alberta [1998]
Facts
- Vriend was fired from his job at a Christian university because he was gay.
- The Alberta human rights statute (Individual’s Rights Protection Act) deliberately omitted protection against
discrimination on the basis of sexual orientation (and its list was not open-ended),
- so the Alberta Human Rights Commission said it couldn’t help him.
- The Alberta government argued that it couldn’t be faulted for failing to protect gays & lesbians, because it hadn’t
positively interfered with anyone’s rights.
Issues
- (1) Is the omission of protection from discrimination on the basis of sexual orientation a violation of equality rights,
pursuant to s.15 of the Charter?
- (2) Is this decision up to the legislative or judicial branch
Held
- Yes
- Judicial
Reasoning
- Decision overturned b/c sexual orientation seen as ANALOGOUS to equality rights s. 15
- This wasn’t just an oversight in the AB legislation  an intentional omission this CONTEXT is imp to consider for
judicial review
(1) The SCC decided that s.32(1) does not require a positive act for the Charter to be invoked. The terms “all matters
within the authority of the legislature” includes government inaction.
(2) Iacobucci J. goes on a discourse on the dialogue between the two branches.
- “Courts… must perforce scrutinize the work of the legislature and executive not in the name of courts, but in the
interests of the new social contract that was democratically chosen”.
- “Moreover, s.33, the notwithstanding clause, establishes that the final word in our constitutional structure is in fact left
to the legislature and not the courts”.
- “The Charter has given rise to a more dynamic interaction among the branches of governance… a ‘dialogue’”.
This seems to indicate a shift toward positive rights—does it give the government an obligation to address systemic
inequalities?
Iacobucci J. “paused” to reflect on the legitimacy of the Charter and judicial review. He argued:
 Legislatures freely chose to enact the Charter.
 Judges’ independence allows them to make “reasoned and principled decisions.”
 Courts should not make value judgments. (Prof. Sheppard asks how this is possible.)
 The limits on Charter rights imposed by ss.1, 33, etc. lead to a “dialogue.”
 The Charter advances a broader notion of democracy than simple majority rule.
This is a good summary of the various arguments in the defence of the Charter.
In addition to Iacobucci, the SCC also endorsed the dialogue theory in R v. Mills (1999) (CBp.724).
o to strike balance btw accused’s right to make full answer and defence and the privacy right of the
complainant
3.The Application of the Charter: Standing and State Action Governmental Actions
S.32(1) of the Charter states:
This Charter applies to the Parliament and government of Canada in respect of all matters within the authority of Parliament including
all matters relating to the Yukon Territory and Northwest territories; to the legislature and government of each province in respect of all
matters within the authority of the legislature of each province
The Charter protects individuals:
79



-

Citizens
Other persons in Canada
Sometimes corporations, depending on the text of the Charter and jurisprudence. Corporations are not directly
protected by ss.2(a), 7 (sort of) or 15, but they can invoke these sections when someone else’s right is being
infringed.
Why does Charter only apply to gov
o Notion that state and rest of society can be separated
o La Forest, J in McKinney
 “Gov is the body that can enact and enforce rules and authoritatively impinge on indiv freedom”
 “Only gov requires to be constitutionally shackled to preserve the rights of the indiv
 While other entities ie private sector may offend/impinge upon rights of indivs  gov can “either
regulate these or create distinct bodies for the protection of human rights and the advancement of
human dignity”
 “to open up all private and public action to judicial review could strangle the operation of society”
and diminish the freedom of the indiv
o Bottom-up protection in order to really establish rights protection
o Gov as historically most likely to impinge
o In many cases it’s not actually a matter of interference w/ gov but that state legislation etc is being
challenged
the Charter (especially equality rights) applies to the text of federal and provincial human rights legislation and statutes
w/ enshrine values of Charter, which does apply to the private sphere, and thus the Charter can apply indirectly to the
private sphere (as in McKinney v. University of Guelph, or Vriend v. Alberta).
 Human rights codes have quasi-constitutional status because they implicate rights that are considered important
to society. (This is a new in-between category that the courts have created.)
 Could do a broad reading of a statute  read it down
 Or could challenge a part of the Charter for not protecting a certain freedom
 But it would have to be something truly lacking in the legislation
(Dolphin Delivery) Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. [1986]
Facts
- Striking employees from Purolator picketed outside Dolphin because Dolphin had contracts with Purolator and was
working for it during the strike.
- Dolphin got an injunction to stop the “secondary” picketing (= picketing at a site other than the labour dispute site),
based on the common law tort of inducing breach of contract.  since applicable labour legislation, Canada Labour
Code, didn’t regulate secondary picketing
- Dolphin claims the picketing is protected by s.2(b) and expression of freedom (s.1).
Issues
- Is injunction against secondary picketing const?
Held
- Yes
Reasoning
- The court held that picketing was a form of expression, but that limits on secondary picketing could be justified.
- this was not a Charter case.
According to McIntyre J, the judiciary did not fall within the meaning of “government” under s.32.  so doesn’t
apply to private parties
- But under s. 52 applies to common law
- McIntyre J held that the Charter only applies to common law rules insofar as executive or administrative bodies act on
them.
- However, the Charter does not apply to common law rules or judicial decisions in private litigation.
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-
Nevertheless, the judiciary “ought to apply and develop the principles of the common law in a manner consistent with
the fundamental values enshrined in the Constitution” [this part confuses everyone].
Ratio
- There is a state action restriction BUT ONLY WHEN COURTS USING CML RULES TO SETTLE DISPUTES BTW
PARTIESlater cases have held Charter did apply to courts b/c they were enforcing statues
Comments
- problem here is that there is no government directly involved;
- case is between the private company and the union.
- There is no statute being challenged, secondary picketing is an issue of common law rules re: labour disputes.
- The injunction is a court order, so the issue is whether the courts are subject to the Charter.
- If a dispute between private parties isbased on a statute, the statute can be challenged. If it’s not in statute, you can
argue that the Charter values have not been applied.
-
The idea that the Charter should not apply to the judiciary has been criticized as incoherent. This decision has often
been ignored.
GOVERNMENTAL ACTORS
But what is government?
-
-
Governmental actors
o components and members of the legislative and executive branches (e.g. civil service) and governments, and
other entities controlled by government or that are exercising governmental functions (e.g. municipalities).
o If the courts conclude that an entity is a government actor, then the Charter applies to all of the entity’s
public and private acts. i.e., if you are employed with the government, your private contract is subject to
the Charter (Eldridge 800).
Non-governmental actors engaged in governmental acts
o Eg implementing a governmental program or exercising a power conferred by statute
Criteria for defining what is a government actor?
- Receiving gov. funding?
- Carrying out a public function?
- Set up/created by Statute No independent governing structure (statutory framework)? but then corporations
only exist when incorporated out of statute (so??)
- Controlled by government? [key criteria]
- Engaged in gov.-type activities  esp. relates to municipality controlled activities so Charter issues can be raised
even though they aren’t prov/fed b/c still carrying out gov. activities
Yes: Municipalities [debatable, see Comments????] (Godbout)
No: Courts (Dophin Delivery), Universities (McKinney)
-
Entities Controlled by Gov
McKinney v. University of Guelph [1990]  forcing retirement
Facts
- Several Ontario universities forced their employees to retire at age 65.
- Employees challenged this on the basis that it was age discrimination and violated equality rights guaranteed by s.15 of
the Charter.
- The Ontario Human Rights Code’s rules on age discrimination in employment only protected people between the ages
of 18 and 65.
Issues
- Are universities considered gov actors under s. 32 of Charter?
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- Was the impugned provision of the Ontario Human Rights Code unconst
Held
- NO
- No
Reasoning
1. The Charter does not apply to universities. It’s true that most universities are creatures of statute, and they receive most
of their funding from the government; it is also true that they perform an important public function. However, they have
independent governing structures, and their decisions with regard to hiring and contracts are completely independent.
What matters is the degree of government control (or institutional agency).
2. This provision of the OHRC violated s.15, but was justified under s.1. (but why does this matter if not a Charter issue?)
Comments
- The idea of an “important public function” could probably change radically over the years.
- Wilson J. (dissent) advocated a broader view of government looking at its roles, and set out 3 tests to identify which
bodies ought to be constrained by the Charter, and found that universities passed all 3.
Control test asks whether the legislative, executive or administrative branch of government exercises general control
over the entity in question
Government function test asks whether the entity performs a traditional government function or a function that in
more modern times is recognized as the responsibility of government
Statutory authority and public interest test asks whether the entity is one that acts pursuant to statutory authority
specifically granted to it to enable it to further an objective that government seeks to promote in the broader public
interest test.
La Forest J. (787): The exclusion of private activity from the charter… is a deliberate choice that must be taken. Reasons: (a)
Historical conception of government
Stoffman v. Vancouver General Hospital [1995]
- Another mandatory retirement issue
- Court rules not a gov institution  same as in McKinney
- Where a public service, even as imp as health care, didn’t qualify as government function under s.32
-
Entities Exercising Governmental Functions
Godbout v. Longueuil [1997]  eg of municipality exercising gov function
Facts
- The City of Longueuil required all new permanent city employees to reside in the city.
- Godbout was fired from her job when she moved to a neighbouring city.
- She claims that the requirement violates s. 5 of the Quebec Charter of Human Rights (respect for private life), and s.7
(life, liberty and security of the person).
- Judges found it unnecessary to consider the Canadian Charter.
Issues
- Did the city’s requirement violate privacy rights under Quebec Charter
- Could the Charter apply to the actions of a municipality
Held
- Yes
- Yes
Reasoning
1. [Not important for this summary]
2. Although municipalities have an independent structure, (i.e., not provincially appointed), La Forest J found that
municipalities were governmental entities exercising governmental functions, based on the fact that:
- (1) They were publicly/democratically elected;
- (2) They have the power to tax;
- (3) They can make and enforce laws;
- (4) They derive their existing and law-making authority from provincial legislatures.
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The fourth criterion is important, because governments should not be allowed to delegate the infringement of rights to
entities they have created.
- Moreover, La Forest J found that all of a municipality’s powers (public and “private”) are governmental.
- BUT La Forest J. was a minority. To this day, the question as to whether municipalities are subject to the Canadian
Charter is up in the air.
- However, this case deals with the Quebec Charter.
Comments
- What about Aboriginal governments: band councils, etc? What about law societies?
- Also note that courts prefer in general to use Quebec Charter where overlap exists and where possible rather than
Canadian Charter (federalism etc issue)
GOVERNMENTAL ACTS
- The government should not be able to avoid its constitutional responsibilities if it delegates its acts out to a nongovernmental actor.
- La Forest J. (Eldridge): “The Charter will apply to a private entity when engaged in activities that can be attributed in
some way to the government”.
o It seems clear then that private entity may be subject to the Charter on the basis of inherently government
actions.
o what are these actions?
What activities are government acts?
- Private entities acting in furtherance to a specific government policy or programme (Eldridge
p801).
- Yes: Hospitals (Eldridge), Administrative tribunals (Slaight???)
-
Entities Implementing Government Programs
Eldridge v. British Columbia (Attorney General) [1997]
Facts
- Three deaf people were not provided with free sign language interpretation in hospital,
- they claimed that this violated their equality rights (s.15).
- BC’s health legislation, Medical and Health Care Services Act, gave the Medical Services Commission the discretion to
decide which services to insure,
- and it gave hospitals the discretion to decide which services would be free.
- Plaintiff had given birth while writing notes
Issues
- Were hospitals bound by Charter?
- Did absence of free sign lang unconstitutionally violate equality rights?
Held
- Yes
- Yes (unanimous decision)
Reasoning
- 1. La Forest J began by repeating the rule from Slaight Communications Inc. v. Davidson, [1989] 1 SCR 1038, that “since
legislatures may not enact laws that infringe the Charter, they cannot authorize or empower another person or entity to
do so.”
- Although hospitals are private entities, they work to implement a “specific government program or policy” i.e., the
delivery of medical services.
- 2. La Forest J described two purposes of s.15.
- A) Besides the idea of human dignity emphasized by Iacobucci J in the Law case,
- B) he added the goal of rectifying and preventing discrimination against disadvantaged groups.
- La Forest J followed the statements in Andrews, that a facially neutral law may be discriminatory, and that it is not
necessary for a law to have had a discriminatory intent.
- La Forest J drew on Eaton v. Brandt County Board of Education (1997), which dealt with the application of equality
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rights to disability cases—it concluded strongly that equality meant the accommodation of difference.
La Forest J disagreed with the lower courts, which had said that sign language interpretation did not have to be
provided because it was an “ancillary service.”  He said that communication was integral to medical care; therefore
deaf people were being denied a benefit available to others.
- The respondents argued that benefit programs should only be scrutinized for adverse effects discrimination when the
adverse effects might exacerbate the disparities between the group and the rest of the population. The court rejected
this, saying that the government had an obligation to make sure disadvantaged members of society could take advantage
of the benefits being given.
- *****Gov has delegated an activity to a private actor****
- Courts found that hospital insurance and medical insurance act has accorded such services to the hospitals (even if had
done so saying issue was at their discretion????)
- **not enough that entity performs a ‘public function’ or that an activity is ‘public’ in nature IT MUST BE
IMPLEMENTING A SPECIFIC GOVERNMENTAL POLICY OR PROGRAM  contrast to Stoffman where its adoption of a
mandatory retirement policy did not implement government policy
Comments
- note how facts affect outcome of case
-
-
Entities Exercising Statutory Powers of Compulsion
Slaight Communications Inc. v. Davidson [1989]
Facts
- An adjudicator’s order required an employer, who had wrongfully dismissed an employee, to write a specific letter of
reference for his employee.
Issues
- Is the adjudicator bound by the Charter?
- Does the order violate the right of freedom of expression?
Held
- Yes adjudicator is a statutory creature who is appointed pursuant to a legislative provision and derives all his powers
from the statute
- Yes
Reasoning
- The Charter applies to non-governmental actors exercising coercive statutory powers. The adjudicator was exercising
powers conferred by the Canada Labour Code
Comments
- Result of Slaight is that some adjudicative bodies (e.g. administrative tribunals and labour adjudicators) are bound by
the Charter, while courts, following Dolphin Delivery, are not, at least insofar as their orders are at the request of private
litigants relying upon the common law.
GOVERNMENT INACTION
- Positive vs negative rights
- Classical theory = Charter should only be used when gov. does something wrong
Vriend v. Alberta [1998]  negative interference counts too  INTENTIONAL OMMISSION
Facts
- Vriend was fired from his job at a Christian university because he was gay.
- The Alberta human rights statute (Individual’s Rights Protection Act) deliberately omitted protection against
discrimination on the basis of sexual orientation (and its list was not open-ended),
- so the Alberta Human Rights Commission said it couldn’t help him.
- The Alberta government argued that it couldn’t be faulted for failing to protect gays & lesbians, because it hadn’t
positively interfered with anyone’s rights.
Issues
- (1) Is the omission of protection from discrimination on the basis of sexual orientation a violation of equality rights,
pursuant to s.15 of the Charter?
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- (2) Is this decision up to the legislative or judicial branch
Held
- Yes
- Judicial
Reasoning
- Decision overturned b/c sexual orientation seen as ANALOGOUS to equality rights s. 15
- This wasn’t just an oversight in the AB legislation  an intentional omission this CONTEXT is imp to consider for
judicial review
(1) The SCC decided that s.32(1) does not require a positive act for the Charter to be invoked. The terms “all matters within
the authority of the legislature” includes government inaction.
(2) Iacobucci J. goes on a discourse on the dialogue between the two branches.
- “Courts… must perforce scrutinize the work of the legislature and executive not in the name of courts, but in the interests
of the new social contract that was democratically chosen”.
- “Moreover, s.33, the notwithstanding clause, establishes that the final word in our constitutional structure is in fact left to
the legislature and not the courts”.
- “The Charter has given rise to a more dynamic interaction among the branches of governance… a ‘dialogue’”.
This seems to indicate a shift toward positive rights—does it give the government an obligation to address systemic
inequalities?
The courts have held on a number of occasions that once government has decided to implement a policy or program, it
must do so in a non-discriminate manner. This was a deliberate omission, so the courts requested that legislation
protecting gay and lesbian rights be written in. Vriend can be seen as simply confirming the view that the “under-inclusive”
government laws or programs can be subject to Charter review.
Iacobucci J. “paused” to reflect on the legitimacy of the Charter and judicial review. He argued:
 Legislatures freely chose to enact the Charter.
 Judges’ independence allows them to make “reasoned and principled decisions.”
 Courts should not make value judgments. (Prof. Sheppard asks how this is possible.)
 The limits on Charter rights imposed by ss.1, 33, etc. lead to a “dialogue.”
 The Charter advances a broader notion of democracy than simple majority rule.
This is a good summary of the various arguments in the defence of the Charter.
Dunmore v.Ontario (AG) [2001]  POSITIVE OBLIGATION OF GOV TO PROTECT VULNERABLE GROUPS –AG
WORKERS
- the SCC’s strongest statement in favour of requiring government action in re: positive obligations to protect
vulnerable groups (s.2(d)).
Ontario labour legislation excluded agricultural workers from the right to form a trade union and to bargain
collectively with their employers.
- Equality argument – must include agricultural workers in all workers
- (problem was there was no protection against agricultural workers per se, dissent said it was ‘analogous to’ other
cases).
- Nothing was said about ethnic/minority status of maj. of ag. workers
- Bastarache J. found in favour of the agricultural workers, deciding this case on the basis of freedom of association,
and suggested that the government did have a positive obligation to facilitate the freedom of association of
vulnerable groups.
- Failure to include ag workers  gov would be complicit in problem w/ freedom to associate
- However, Bastarache J distinguished between “legislative silence” and “under-inclusive legislation” (i.e., the state is
not always obliged to act where it has not already legislated) but where it has…
85
-
Note that Dolphin Delivery probably would have said no that Charter only applies to gov
APPLICATION OF THE CHARTER TO COURTS AND THE COMMON LAW (NOT IMP??)
Hill v. Church of Scientology of Toronto [1995]
Facts
- The Church of Scientology and its lawyer Manning alleged that Crown Attorney Hill misled a judge of the Supreme
Court of Ontario and breached orders sealing documents belonging to the Church at a press conference.
- These allegations were found to be untrue, and Scientology was found liable at trial
Issues
- Is CML of defamation inconsistent w/ the Charter values of freedom of expression
- Do amendments need to be made to include this in Charter
Held
- Yes
- No
Ratio
- The common law of defamation reflects an appropriate balance between the competing interests of freedom of
expression and the protection of the reputation of the individual.
- It is thus consistent with the underlying values of the Charter, and no amendments need to be made.
Comments
- Private parties can’t found their cause of action upon a Charter right:
- you can’t say that the common law violates a Charter right because Charter rights do not exist in the absence of
state action.
- You must claim that the common law is inconsistent with Charter values. “Therefore, in the context of civil
litigation involving only private parties, the Charter will ‘apply’ to the common law only to the extent that the
common law is found to be inconsistent with Charter values… The Charter values will then provide the guidelines for
any modification to the common law which the courts find necessary”.
WHO IS PROTECTED BY THE CHARTER (CB 814 INCLUDE?? NOT DISCUSSED IN CLASS?)
STANDING: WHO CAN RAISE CHARTER ISSUES (CB 1300  INCLUDE?? NOT DISCUSSED IN CLASS?)
JURISDICTION: WHERE CAN CHARTER ISSUES BE RAIED (CB 1302  INCLUDE? NOT DISCUSSED IN CLASS?)
4. Limits on Charter Rights
- defining limits in terms of the Charter
Kinds of limitations on Charter rights:
(1) Limits in terms of how we define rights: what we mean by “freedom of conscience,” etc.
 Scope etc.
(2) “Internal” limits within the text of each individual right:
 e.g. s.7: “…except in accordance with the principles of fundamental justice.”
 e.g. s.8: “…unreasonable…”
 e.g. s.15(2): affirmative action programs
(3) s.1: the “reasonable limits” provision, where the balancing is explicit – Main source of limitation
 This clause was modeled on international human rights instruments and the European Convention on Human
Rights.
 The US constitution has no such feature, but judges have “read in” limits. In more modern conventions, there is
usually an explicit provision.
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 The South African constitution has a similar article, and has followed the Canadian jurisprudence.
(4) s.33: the “override” provision or “notwithstanding clause”
 This is now seen as politically unacceptable.
 s.33—the override clause—can only be used to override ss.2 and 7-15. It therefore can’t be used to override
many important rights, including mobility rights and language rights.
 The case of Ford v. Quebec (A.G.), [1988] 2 SCR 712 (CBp.775) established that the court cannot review the
substance of legislation protected by s.33—it can only review the legislation’s form to make sure it fits with s.33.
 A legislature’s use of s.33 has a five-year limit; it must be renewed to remain effective.
 Quebec created an “omnibus” override law in June 1982, making all of its laws operate notwithstanding ss.2 and
7-15; however, this override was not renewed.
 Lorraine Weinrib notes that the override provision can counter criticism of judicial review: it gives legislatures
the last word.
 Hogg and Bushell cite s.33 as an opportunity for “dialogue.”
 However, s.33 has hardly ever been used.
SECTION 1- Defining limitations
- Balancing clause
- (s.1 analysis comes before enumeration of indiv rights??)
- 2 structural components to s.1 (this can vary if there are internal limits to the right in question)
o 1) requirement that all limits on rights be ‘prescribed by law’ = (formal requirement)
o 2) requirement that limits be ‘reasonable’ and ‘demonstrably justified in a free and democratic society’
(=substantive requirement)
-
A) Prescribed by law
Usually jumped over fairly quickly  hasn’t really come up in most cases
The idea here is accessibility and precision:
o If a government is planning to violate rights, it should say so precisely enough that citizens can plan their
behaviour around it.
 if there are reasons why a law will infringe a right, they MUST be set out in the law, to support case
for the limitation of the right:
 LeDain in R v. Therrens (CB 749):
o highlights the difference between limit prescribed by law and arbitrary limit;
o the SCC found that police discretion to order breathalyzer tests without informing a
suspect of his right to instruct and retain counsel was not a limit “prescribed by
law.”
o The police were acting pursuant to statutory authority, but their discretion was not
constrained by any clear legal rule.
o Underlying ‘prescribed by law’ are the ‘rule of law’ values
- Before the government may argue that competing interests justify the limitation of a Charter right, it must first show
that the limit is prescribed by law.
 This means that, to the average citizen, the law must be
 (a) accessible and
 (b) intelligible (circumstances, consequences, etc.) (Sunday Times v. United Kingdom
[1979] Cb 748). This requirement ensures public accountability for any restriction on a
constitutional right (rule of law).
- The courts have been reluctant to set too high a standard for the prescribed by law requirement, concerned that an
excessive emphasis on precision in language may unduly restrict legislatures in accomplishing their objectives.
o e.g., Irwin Toy v. Quebec (AG) – how to assess whether advertisement was directed at children under 13?
- issue of vagueness:
o vagueness can have constitutional significance in two ways:
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

1) law may be so uncertain that it is incapable of being interpreted as setting out any sort of
limit/restraint;
2) law which can be interpreted as a limit may STILL be vague enough to qualify as a reasonable limit
-most exclusive discussion of vagueness issue:
R. v. Nova Scotia Pharmaceutical Society [1992]
Facts
- Accused were charged under Combines Investigations Act with conspiring to lessen competition;
- moved to quash the indictment, arguing that provisions under which they were charged violated s. 7 on grounds of
vagueness;
- SCC rejected this argument.
Issues
- Did provision in Combines Investigations Act violate s. 7 (life, liberty, security of the person) on grounds of
vagueness (i.e. was provision too vague to be able to be used as a limit to s. 7 rights?)?
Held
- No
Reasoning
vagueness can be raised:
- a) under s. 7 of the Charter: principle of fundamental justice that laws are not too vague
- b) under s. 1: on the basis that enactment is so vague as to not satisfy the requirement that a limitation on Charter
rights be “prescribed by law”
- c) under “minimal impairment” stage of Oakes test: related to concept of overbreadth
 doctrine of vagueness is a single concept when applied to s. 7 or s. 1, goes further for minimal impairment
application
 vagueness may be raised 1) under substantive sections of the Charter whenever these sections comprise some
internal limitation, which would not otherwise be objectionable but for the vagueness of the impugned law; 2) outside
of these cases, in a s. 1 argument
-doctrine of vagueness founded on rule of law, principles of fair notice to citizens and limitation of enforcement
discretion
 fair notice to citizens: two aspects:
1) formal: (KNOWLEDGE OF THE LAW) acquaintance with actual text of statute; not a central concern of doctrine
of vagueness
2) substantive: (UNDERSTANDING OF THE LAW) defn: s notice, an understanding that some conduct comes under
the law; idea of fair notice would be empty if mere fact of bringing text to citizens’ attention was enough, esp.
since knowledge of the law is presumed by law
 often, there is already a social understanding of the message of the law (i.e. social understanding that
killing someone is wrong, mirrored in homicide laws) (substantive notice!) but even where there is
none, lacuna compensated for by bringing to attention of public the actual terms of the law so that
substantive notice is achieved
 limitation of enforcement discretion: law must not be so devoid of precision in its content that a conviction will
automatically flow from decision to prosecute; when power to decide whether a charge will lead to conviction or
acquittal becomes fused with power to prosecute (i.e. taken out of hands of judiciary), then law will be
unconstitutionally vague
factors to be considered in determining whether a law is too vague:
a) need for flexibility and interpretative role of courts
b) impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate
c) possibility that many varying judicial interpretations of a given disposition may exist/coexist
-legal rules only outline an “area of risk”, a framework for behaviour: certainty is only achieved when looking at specific
cases, therefore intelligibility of the framework is more relevant: if framework is not defined enough to be able to be
applied to specific situations consistently by judges, then the provision at the basis of that framework is vague and can
provide neither sufficient notice to citizens nor a limitation of enforcement discretion
-modern rule of law applies also to areas of life that are not clear-cut, where State has become involved in recent years:
social policy, economics; because these areas are so complex, provisions on those subjects will have to be general but
88
these kinds of frameworks can still be intelligible enough to give a sufficient indication as to how decisions must be
reached and factors to be considered, and keep within the judiciary the means of controlling the exercise of discretion
as to the applicability of the law
Ratio: Doctrine of vagueness applies to s. 7 and s.1 and Oakes test (minimal impairment); founded on principles of rule
of law, fair notice to citizens and limitation of enforcement of discretion; intelligibility not certainty is factor at core of
vagueness analysis.
-
B) Justification
-
Substantive requirement
Asks is the limitation demonstrably justified in a free and democratic society
-
o Oakes Framework/Test
Picks up and builds on Big M Drug Mart case early purposive approach
Sets out what is a reasonable limit that is justifiable in a “free and democratic society” (see list of protected values below).
A. There is a pressing and substantial objective
-( vaguely reminiscent of P&S real and stated objective etc)
B. The means must be “reasonable and demonstrably justified” (the “proportionality” test):
- 1) Rational Connection between Means and Objective.
The measures adopted must be carefully designed to achieve the objective in question (rationally connected to the
objective)
- 2) Minimal Impairment.
The means should impair “as little as possible” the right or freedom in question
- 3) Balance between Negative Effects and Objectives. [back-up/last resort prong]
Is it too intrusive on human rights?
There must be a proportionality between the effects of the measures which are responsible for limiting the Charter
right or freedom and the objective which has been identified as of “sufficient importance”.
i.e., comparison of actual impact of the law on the affected right with the actual contribution the law makes to its
substantial purpose.
-
Dickson CJC states that s.1 has two functions:
o (1) to constitutionally guarantee the rights and freedoms of a free and democratic Canadian society and
o (2) to explicitly state the exclusive justificatory criteria against which limitations of these rights and freedoms
can be measured.
o The rights in (1) are not absolute, and criteria to limit them are provided in (2).
o The onus of proof is on the party seeking to uphold the limitation,
 i.e. the government (since the rights and freedoms are guaranteed, the party must show exceptional
criteria).
 It is a civil, not criminal burden
 proof based on the balance of probabilities.
- The Oakes test addressed this concern by saying that the words “free and democratic society” set the standard for
justification.
o Note that this is subjective
 Should judges be judging by normative values
o For Dickson CJC, the words “free and democratic society” include:
 inherent dignity of the human person
 social justice and equality
 variety of beliefs
89
-
-
-
 respect for cultural and group identity
 respect for social and political institutions which enhance participation
Dickson CJC set out two criteria for justification for a limit to be deemed reasonable:
o 1. There should be a sufficiently important, “pressing and substantial” objective.
 The objective, which the measures responsible for a limit on a Charter right or freedom are designed
to serve, must be ‘of sufficient importance to warrant overriding a constitutionally protected right or
freedom eg. (R v. Big M Drug Mart);
 It may be unclear whether the court should look at the objective of the legislation as a
whole, or of the specific provision (or omission).
 Courts rarely use this stage of the Oakes test to say that legislation can’t be upheld
(although they did in Vriend, and in Big M Drug Mart—but Big M was before, no?).
 The objective must also be an admissible one, and not “shifting” (see Big M Drug Mart +
Butler). (???)
 There is a controversy over to what extent budgetary considerations can be a valid
objective.
2. The means must be “reasonable and demonstrably justified” (the “proportionality” test):
o Once a significant objective is recognized, then the party invoking s.1 must show that the means chosen are
reasonable and demonstrably justified.  R v. Big M Drug Mart Ltd. says this involves ‘a form of
proportionality test’ depending on the circumstances. [See more details 759-763]
 a) The means must be “rationally connected” to the objective.
 Courts rarely use this test to strike down legislation, although this is what they used in the
Oakes case itself.
 b) The means must impair the right in question “as little as possible” (“minimum impairment” test)
 This is the most frequent basis for striking down legislation.
 Of course, it can’t be interpreted strictly; one can almost always imagine some law that would
infringe rights even less.
o In Edwards Books, Dickson CJC said that a law should impair rights “as
little as reasonably possible.”
 c) Deleterious effects/disproportionate effects test
 There must be a balance between the negative effects and the objectives.
 Dagenais v. Canadian Broadcasting Corp [1994] adds that shouldn’t just consider the
objectives of the impugned law but also its salutary effects  there must be a
proportionality btw the deleterious and the salutary effects of the measure .
o This case’s modification of the Oakes test is also seen by some as a response to
Wilson J’s call in Edmonton Journal (see below) for a more contextual approach to
limits under s. 1
 BUT in reality courts have given relatively little weight to this final step
Oakes test appears to have been derived from a US Supreme Court case (see CBp.763)”
R. v. Oakes [1986]
Facts
s. 8 of Narcotic Control Act created rebuttable presumption that once possession established, intention to traffic
was automatically presumed unless the defendant established absence of such an intention;
- Oakes claimed that this reverse onus provision violated s. 11(d) of Charter (right to be presumed innocent);
- Court found in his favour and went on to discuss whether limitation could nonetheless be upheld under s. 1
Issues
- Can limit be upheld under s.1
Held
- No
90
Reasoning
-s. 1 has two functions:
1) constitutionally guarantees rights and freedoms set out in the rest of the Charter
2) states explicitly the justificatory criteria against which limitations on those rights and freedoms must be
measured therefore s. 1 inquiry must be premised on understanding that the impugned limit violates
constitutional rights and freedoms
-in assessing limit, Court must be guided by values and principles essential to free and democratic society (see p 757 for
enumeration) and they are the standard against which a limit on a right or freedom must be shown to be reasonable
and demonstrably justified
-onus of proving limit is reasonable in free and democratic society lies with party seeking to uphold limit
-standard of proof: preponderance of probabilities test; there are different degrees of probability depending on the
nature of the case, but the probability necessary in justifying violation of rights must be very high, must make clear the
consequences of imposing the limit or not
-two central criteria for establishing limit is reasonable and demonstrably justified in a free and democratic society:
1) objective of the measures that are violating a right/freedom is sufficiently important to warrant overriding a
constitutional right/freedom
2) means by which objective is being implemented must
a) be rationally connected to the objective;
b) even if rationally connected, must impair as little as possible the right/freedom overridden by the provision;
c) there must be a proportionality between effects of the measure limiting right/freedom and the objective=>
the more severe the deleterious effects, the more important the objective must be for the measure to be
declared reasonable
Ratio: S. 1 analysis must be guided by contextual considerations: 1) the provision must violate a constitutional right or
freedom; 2) violation of right/freedom must respect principles and values of free and democratic society to be
considered justified.
Comments
- Contrast to Irwin Toy
o Critique of Oakes test
NOTE The Oakes test was developed in a criminal case, where one would want to have a more stringent test.
o = sets a very high hurdle for govs to overcome if they want to set rights limitations
- The SCC has approached the Oakes test differently depending on the right being infringed,
o Inconsistency and unpredictable jurisprudence
 Shows s.1 requires difficult, value-laden assessments of complicated social + econ legisltation
o Has a lot to do w. how frame arg and right  context
 Purpose vs means  interpreting purpose as narrow can strike down laws at that (beg
stage)  if interpret broadly then can strike down at means stage
 Impossible to reduce s. 1 inquiry to rigid test or formula w/ predictable results
 SO OAKES IS MORE OF A FRAMEWORK AND A METHODOLOGY THAN AN ACTUAL TEST 
formulaic
 Contextual/subjectivity allows courts to construct desirable results
 Eg distinction btw Therrens and Irwin Toy
o   this is why post-Oakes courts have shifted towards means test to strike down laws
  esp minimal impairment (2nd prong of means test)  b/c it’s least politically contentious
- so sec. 1 can allow judges to engage w/ policy and notions of btw dif rights and freedoms but even though channelled
through elaborate means test in the end some say comes down to value judgement
o eg. Hate speech/freedom of speech what right trumps
-
91
o In the wake of Oakes test subsequent development of Oakes test: Context and Deference
Two major themes in post-Oakes development
-
1) Emergence of the contextual approach
2) The Court’s willingness to defer in certain circumstances to the legislature’s judgment about the need for, and
effectiveness of, a particular limit on a Charter right
 1) Contextual Approach
- to s. 1 analysis (assess value of the right and its restriction in context not in abstract) and deference to legislature have
emerged as parts of s. 1 analysis since Oakes case.
o  there is significant disagreement as to what degree deference is acceptable
- Origins of contextual approach:
Edmonton Journal v. Alberta (AG) [1989]  contextual approach
Facts
- Newspaper challenges constitutionality of s. 30(1) of the Alberta Judicature Act limiting publication of information
arising out of court proceedings in matrimonial disputes;
- claimed that s. 30(1) was contrary to s. 2b) of the Charter (freedom of expression)
Issues
- Did s. 30(1) violate freedom of expression?
- Was the violation a reasonable limit on s. 2b)?
Held
- Yes (unaniumous)
- No (split court)
Reasoning
Wilson J (majority): depending on which approach to Charter application one takes, the results are sometimes
different; abstract approach v. contextual approach
-under each approach, must:
1) ascertain underlying value the right allegedly violated was designed to protect, through a purposive
interpretation of Charter rights
2) ascertain legislative objective sought to be advanced by the impugned legislation, through ascertaining intent of
legislator enacting the legislation
3) if clear that legislative objective cannot be achieved without some infringement of the right, ascertain whether
impugned legislation constitutes reasonable limit on the right (as per s. 1)
-abstract approach:
underlying value is determined “at large”: freedom of expression as a fundamental part of development of Canadian
institutions, therefore very important
-****contextual approach:
 goes further than abstract approach
 underlying values are more specific: rights have different values in different context: freedom of expression might
have more value in political context than in disclosure in court context
 here, freedom of expression = right of the public to an open court process
 right to open court process must be balanced against right to freedom of privacy
-must not balance one value at large and conflicting value in its context
-contextual approach recognizes that a particular right might have a different value depending on the context=> this is
important in terms of the s. 1 balancing exercise
2 aspects of contextual approach:
1) must understand how right impacts on individuals’ lives to decided if it is or not important;
2) must understand how does debate between two conflicting rights connect to history, social patterns, larger
context
Ratio:
92
-
Importance of a right or freedom in the context of the s.1 balancing exercise to determine the reasonableness of a
limit on a right must be assessed in the context of the situation rather than in the abstract, as must its purpose. The
right or freedom must then be given a generous interpretation aimed at fulfilling the purpose stated and securing for
the individual the full benefit of the guarantee offered by the right/freedom in question.
Notes
- Wilson J’s call for a more contextual approach has been seen as requiring a greater flexibility in application of
Oakes test and greater deference to legislative judgement
- Disadvantages  if too contextual might not create good precedent
Lessons of Edmonton Journal v Alberta:
Wilson J. describes a context-sensitive approach to s.1, which she deems more worthwhile than a general, abstract
comparison of competing values:
(1) Ascertain underlying value which the right alleged to be violated was designed to protect
 Achieved through a purposive interpretation of Charter rights
(2) Ascertain the legislative objective sought to be advanced by the impugned legislation
 Achieved by ascertaining the intention of the legislator in enacting the particular piece of legislation
(3) When both the underlying value and the legislative objective have been identified, and it becomes clear that the
legislative objective cannot be achieved without some infringement of the right, it must then be determined whether the
impugned legislation constitutes a reasonable limit on the right which can be demonstrably justified in a free and democratic
society.
 A virtue of the contextual approach is that it recognizes that a particular right or freedom may have a different value
depending on the context. It brings into light the aspect of the right or freedom that is truly at stake in the case as well as
the relevant aspects of any competing values.
Thomson Newspapers Co. v. Canada [1998] overview of contextual approach
Facts
- federal ban on the publication of voter opinion polls in the last few days before an election ruled an unjustified
restriction on freedom of expression
Issues
- overview of contextual approach used to reach above decision
Reasoning:
-contextual analysis must be applied to all steps of Oakes test
-factors that must be taken into account in assessing whether a limit has been demonstrably justified according to civil
standard of proof (preponderance of probability):
 vulnerability of group which legislator seeks to protect
 group’s own subjective fears and apprehension of harm
 inability to measure scientifically a particular harm or the efficaciousness of a remedy
 nature of the activity which is infringed (degree of constitutional protection depends on nature of activity)
R v. Lucas [1998]  CONTEXTUALITY SHOULD ONLY BE USED IN THIRD STAGE OF OAKES TEST
Facts
- majority upheld defamatory libel provision of Criminal Code as a justified restriction on freedom of expression;
McLachlin J dissented
Issues
- contextual approach and reference—how far?
Reasoning
- does not agree with assigning different values to different natures of a particular activity and affording different level
of protection (i.e. applying s.1 more or less stringently) to each value level;
- feels that this use of contextual analysis (that assigns different values to different natures of an activity) undermines
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the utility of the Oakes test, because the outcome depends no longer on the application of the Oakes criteria to each
situation but on the judge’s assessment of what kind of a particular activity (i.e. expression) deserves more protection
than other/is more valuable;
- feels should apply rational connection and minimal impairment steps of proportionality test INDEPENDENT of the
value judgement of the kind of activity being limited, while CAN apply contextual approach to the final stage of the
proportionality test, the balancing of detrimental and salutary effects.
Ratio:
- Contextual approach should not be used in the first two stages of the proportionality test of Oakes Test, but can
apply to the third, in order to ensure an equal level of protection for all forms of an activity while maintaining the
flexibility and contextual nature of s. 1 analysis.
b) Proper balance between individual rights and community:
 achieved through looking at the nature of infringed right and values relied on by the state to justify infringement
contextually
-
 2) Deference to legislative judgement
Highest level of judicial deference
In Irwin Toy, the court said that judicial deference in s.1 analysis was appropriate where:
 the issue involves complex social-science evidence (e.g., macroeconomics, or the effects of advertising)
 the government is seeking to protect a vulnerable group
 the government is balancing the interests of different groups competing for limited resources
Irwin Toy Ltd. v. Quebec (AG) [1989]  key case on judicial deference
Facts
- restrictions on advertising directed at children
Issues
- Is deference to legislative judgement appropriate
Reasoning
- more deferential attitude is ok in case where government mediating between 2 groups with conflicting interests:
- if the legislature has made a reasonable assessment as to where the line between conflicting interests is most
properly drawn, especially if that assessment involves weighing conflicting scientific evidence and allocating scarce
resources on this basis, it is not for the court to second guess, as this would just replace one estimate with another;
courts also have less competence than legislatures to assess decisions of social policy.
 courts must be cautious in this case not to allow better situated individuals to use the Charter to roll back legislation
which has as object the improvement of the conditions of less advantaged persons
-more stringent application of s.1 in case where the government is directly affecting an individual’s rights, and there are
no other conflicting interests: especially when government’s purpose is to maintain authority and impartiality of
judicial system, courts can assess with some certainty whether the least drastic means to implement the objective have
been chosen
Ratio: Where government is mediating between competing claims, as long as they have made a reasonable estimate
where the proper line between the two claims lies, court should defer to legislative judgement, since the best they can
offer is another estimate, not necessarily more accurate than the legislature’s.
Where there are no conflicting rights, and it is just government affecting an individual’s rights, courts can, because of
experience, more accurately assess whether the least dramatic means are being used to further the government’s
objective.
Greater deference to legislative choice is appropriate where:
- government has sought to balance competing rights, protect a socially vulnerable group, balance interests of
various social groups competing for scarce resources, address conflicting social science evidence as to the cause of a
social problem (courts have both less legitimacy and competence in this latter issue).
Comments
- Note  it’s easier for eg Tobacco Company to do a freedom of speech case (eg Irwin Toy)  easier for them to be
94
claimants rather than defendants and gov can then mitigate
RJR Macdonald Inc. v. Canada (AG)  FREEDOM OF EXPRESSION TABACCO ADVERTISING
Facts
- general ban on tobacco advertising struck down
Issues
1- ) freedom of expression;
2- 2) application of Oakes test
Reasoning
- 1) see Freedom of Expression
- 2) Context is essential in determining legislative objective and proportionality, but it cannot be carried to the extreme of
treating the challenged law as a unique socio-economic phenomenon of which Parliament is deemed the best judge, as
this would undercut Parliament’s obligation to justify limits it places on Charter rights.
- Deference: distinction between situations of competing rights and state v individual is not easily applicable; also, while
some deference must be paid to legislators and inherent difficulties of drafting legislation, limit prescribed by law cannot
be struck out just because courts think that they can conceive of a less restrictive alternative (i.e. replace an estimate with
another estimate);
- finally, courts must take care not to extend notion of deference to the point where government is relieved of its burden
to justify limits on Charter rights, courts cannot abandon their role to determine whether Parliament’s choice falls within
the limiting framework of the constitution.
Ratio: Context, deference and flexible and realistic standard of proof are essential aspects of s. 1 analysis but they must
not be taken to the point that they relieve the State of the burden imposed by the Charter of demonstrating that the
limits imposed on our constitutional rights and freedoms are reasonable and justifiable in a free and democratic
society.
Deference and Context:
-
3 ways to defer to legislative judgement or to lower standard of judgement:
o 1) judicial deference to relevant findings of fact by legislature (or lowering standard of proof legislature must
meet when establishing factual basis for justification of an argument) (see Irwin Toy)
o 2) deference to legislature’s accommodation of competing values/interests: courts reluctant to substitute
their own judgement of what is a reasonable balancing of interests in place of that made by the legislature
o 3) lowering of the standard of justification under s.1: courts have held that less a substantial or significant
competing interest may support the restriction of a less valuable form of expression such as commercial
advertising or hate promotion; while Oakes test premised on all limits to rights having the same structure,
this is not quite true, therefore the framework of standards or tests to test limits to rights will inevitably be
vague and flexible, to cover all possibilities.
- Four factors taken into consideration when deciding to defer or not:
o 1) facts of the case
o 2) Purpose of the legislator
o means used by the legislator
o nature of affected right: used when there are competing interests at stake that must be balanced
Application of s. 1 test:
Newfoundland (Treasury Board) v. N.A.P.E. [2004]
Facts:
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-
1988, gov of Newfoundland and Labrador signed a Pay Equity Agreement in favour of female employees in the health
care sector.
- 1991, the same government introduced the Public Sector Restraint Act, which deferred from 1988 to 1991 the
commencement of the promised pay equity increase (s. 9) and extinguished the 1988-91 arrears.
- This saved NFLD about $24 mil.
- justification was that the government was experiencing a financial crisis unprecedented in the Province’s history and
The gov adopted other severe measures to reduce the Province’s deficit.
Grievances were filed on behalf of some female employees affected by the cut to pay equity.
- The Arbitration Board ordered the government to comply with the original terms of the Pay Equity Agreement,
holding that s. 9 of the Act infringed s. 15(1) of the Canadian Charter of Rights and Freedoms and that the infringement
could not be saved under s. 1.
- On judicial review, the motions judge quashed the Board’s decision and dismissed the grievances. He agreed that s. 9
infringed s. 15(1) but found the infringement justifiable under s. 1.
- The Court of Appeal upheld the motions judge’s decision. In so doing, one appeal judge suggested that explicit
recognition of the separation of powers doctrine should be added to the s. 1 test.
Issues:
- Is s. 9 of the Public Sector Restraint Act limit on s. 15(1) justifiable under s.1?
Held
- Yes
Reasoning
s. 15 discrimination: yes:
- The contextual factors listed in Law lead to the conclusion that the targeting of an acquired right to pay equity
amounted to discrimination within the meaning of s. 15(1) of the Charter.
- First, a pre-existing disadvantage is shown since “women’s jobs” are chronically underpaid and the Act perpetuated
and reinforced the idea that women could be paid less for no reason other than the fact that they were women.
- Second, the postponement of pay equity did not correspond to the actual needs, capacity or circumstances of the
claimants. Indeed, it did just the opposite.
- Third, the Act did not have an ameliorative purpose in relation to the workforce.
- Fourth, since work is an important part of life, the interest affected by the Act was of great importance.
- In sum, s. 9 of the Act affirmed a policy of gender discrimination which the provincial government had itself
denounced three years previously.
s. 1 justification: yes: Section 9 of the Public Sector Restraint Act is justifiable under s. 1 of the Charter.
1) pressing and substantial legislative objective: The need to address the fiscal crisis was a pressing and substantial
legislative objective in the spring of 1991. The crisis was severe and not taking it into account would have had harsh
consequences on the province’s ability to borrow, and on its ability to continue to provide adequate healthcare, jobs,
education and social welfare.
 justifying infringement on Charter rights on the basis of budgetary constraints is not something courts like to do, as it
undermines the Charter, as there are always budgetary constraints; however, when budgetary constraint is so large that
government is forced to choose between its priorities, courts cannot ignore it as a justification
2) proportionality test: The government’s response to its fiscal crisis was also proportional to its objective:
a) rational connection between means and objective: pay equity payout represented a significant portion of the budget,
its postponement was rationally connected to averting a serious financial crisis.
b) minimal impairment: the government’s response was tailored to minimally impair rights in the context of the problem
it confronted: government implemented pay equity plan at a slower pace, looked for alternative measures, implemented
other cuts; because situation exceptional, legislature must be given room to manoeuvre.
c) detrimental v salutary effects balancing: detrimental impact of a delay in achieving pay equity did not outweigh the
importance of preserving the fiscal health of a provincial government through a temporary but serious financial crisis;
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given the seriousness of the crisis, the fiscal measures adopted by the government did more good than harm, despite the
adverse effects on the women hospital workers.
Separation of powers:
-
Separation of powers cannot be invoked to prevent operation of s. 1; Section 1 itself reflects an important aspect of
the separation of powers by defining certain express limits on legislative sovereignty. Judicial review of governmental
action long predates the adoption of the Charter. Since Confederation, courts have been required by the Constitution
to ensure that legislatures comply with the division of legislative powers. The Charter has placed new limits on
government power in the area of human rights, but judicial review of those limits involves the courts in the same role in
relation to the separation of powers as they have occupied from the beginning, that of the constitutionally mandated
referee. It is not the courts which limit the legislatures. It is the Constitution.
- ***The doctrine of separation of powers is an important concern, but the Oakes test, which is itself based on the text
of s. 1, provides the proper framework in which to consider what the doctrine requires in situations where legislative
action is alleged to come into conflict with entrenched constitutional rights. The suggestions that the onus be
transferred to an applicant to show that the exercise of the claimed Charter right is reasonable, that the Court exempt
legislation embodying “policy initiatives” from Charter review, and that the Court decline to consider what, if any, less
infringing measures were available to the legislature to achieve its policy objectives, must all be rejected.
Ratio
***Fiscal crisis is an important enough legislative objective and, where the situation is extraordinary, there is a
connection between the objective and the slowing down of pay equity implementation, as well as there is minimal
impairment. The balancing of deleterious and salutary effects also concludes that the slowing down of pay equity
schedule is a justifiable infringement on s. 15 rights. Separation of powers doctrine cannot be invoked to prevent the
operation of s.1 because courts, regardless of whether the law is federal or provincial, are constitutionally mandated
referees in any legislative activity in Canada****.
Notes:
-recognition that context (=what legislator trying to do) matters
-costs considerations CANNOT be a reason for deference to the legislator unless in extraordinary circumstances where
legislator trying to achieve something
Sheppard
1 – critics have suggested Court too quick to let gov off w/out providing enough evi (also see this issue related to National
Security  many things can be construed as a threat)
2 – why must women bear burden during financial crisis
 Question of when does money/costs justify rights violation  here the financial
crisis justified an infringement on equity
3 – discussion about separation of powers  suggestion that Oakes test gives courts too much power and they’re
overstepping  courts reject this
Oakes test amended in use
 Edward Books [1986]  SCC makes Oakes more flexible while upholding Ontario’s Sunday-closing legislation. Dickson
held that “limit on rights was permissible as long as it impaired the right as little as reasonable possible”
 Irwin Toy [1989]  suggested more deferential standard to review under s.1 should apply in cases where the legislature
was ‘mediating btwn competing claims of different groups.”
 Shows courts deference to legislature when latter has to draw lines.
s. 33 THE OVERRIDE
(P 775 CB)
-
states that Parliament/leg of prov may declare that act/provision shall operate notwithstanding
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o limitation on time = 5 years
- This section permits legislatures to override certain Charter rights by enacting ordinary legislation
- Notwithstanding clause immunizes statute in question from Charter attacks and judicial review.
- No need for legislature to specify which particular Charter right is being overridden. But use of override must be express
rather than implied (see Ford)
- Advantage of override: serves as check on judicial power, ensuring legislature has mechanism to trump exceptional
judicial decision that imposes unacceptably high and inappropriate costs on community.
 (movement to include notwithstanding clause in s. 28 that would trump s.33)
 S.28 hasn’t really been used much b/c equality rights in s. 15
(From beg of section)
-
-
This is now seen as politically unacceptable.
s.33—the override clause—can only be used to override ss.2 and 7-15. It therefore can’t be used to override many important rights,
including mobility rights and language rights.
The case of Ford v. Quebec (A.G.), [1988] 2 SCR 712 (CBp.775) established that the court cannot review the substance of legislation
protected by s.33—it can only review the legislation’s form to make sure it fits with s.33.
A legislature’s use of s.33 has a five-year limit; it must be renewed to remain effective.
Quebec created an “omnibus” override law in June 1982, making all of its laws operate notwithstanding ss.2 and 7-15; however, this
override was not renewed.
Lorraine Weinrib notes that the override provision can counter criticism of judicial review: it gives legislatures the last word.
Hogg and Bushell cite s.33 as an opportunity for “dialogue.”
However, s.33 has hardly ever been used.
In wake of passage of Charter where Quebec had been left out at end of process
o So in protest has re-enacted all its laws to include a mention of the provision through an omnibus
amendment enactment included in the re-enacted laws, making them exempt from the operation of the
Canadian Charter
o Only place where s.33 has actually been used
o =Ford case
Ford v. Quebec [1988]  OVERRIDE
Facts:
- challenge to Quebec Charter of French Language provision requiring French only in advertising, signs, posters
(passed using s. 33);
- successfully challenged under both Charter and Quebec Charter; this is done using a standard clause stating that s.
2-7 and 15 of Charter are not applicable to Quebec law (including the French Language provisions)
Issue:
- 1) Was Quebec’s standard clause, omnibus use of the override valid?
- 2) Did French-only rule infringe freedom of expression? (see Language Rights section)
Reasoning:
-main contention of Ford: override provision did not sufficiently specify the rights which the legislation intended to
override
-s. 33 lays down requirements of FORM only, not requirements for substantive review of the validity of legislature’s use
of it in a particular case
 no apparent link between the overriding Act and the guarantees of rights and freedoms to be overridden needs to be
proven for a use of the s. 33 notwithstanding clause to be valid, because such a link is a substantive ground for review=>
the validity of standard override provision is judged on whether it respects requirements of form not by any substantive
standards
 a legislature might not be in a position to foresee all the Charter rights that could successfully be invoked against an
Act, therefore should be in a position to be able to override all provisions of rights which it is permitted to override by
the terms of s. 33 (s. 2, s. 7-15)=> an override clause governing a law can be general and does not have to specifically
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name the rights which are being overridden, only needs to refer to the number of the section of the Charter that
contains a provision to be overridden
 procedure for repealing and amending laws is an important part of the democratic process: if it does not require
anything more than naming the provisions to be repealed or amended, by number, there is no reason why an overriding
declaration under s. 33 should require that the specific provisions being overridden must be specified, on top of the
numbers of their sections
 omnibus nature of standard override provision: standard override provision introduced into all Quebec law enacted
prior to a certain date by a single enactment; this does not detract from validity of standard override clause’s enactment
 retrospective effect of standard override provision: s. 33(1) can be interpreted both broadly (override provision can
have retrospective effect) and narrowly (override provision cannot have retrospective effect), court chooses narrow
interpretation and thus legislature cannot enact retroactive override provisions
Essential contention was against the validity of the standard override provision was that the provision didn’t
substantially specify the guaranteed rights or freedoms which the legislation intended to override
Court also decided that the validity of its enactment isn’t affected by the fact that it was introduced into all Quebec
statutes enacted prior to a certain date by a single enactment
If law complies w/ formal requirements of s.33 then it’s ok
Ratio:
The validity of the enactment of an override provision as part of a law hinges on requirements of FORM not on
substantive requirements, thus it is not necessary for legislature to specifically list all rights they seek to override. S.
33 does not suggest any such need. The fact that override provision is introduced in multiple laws by a single
enactment does not detract from an otherwise valid enactment of an override provision. However, the narrow
interpretation of s. 33(1) dictates that any enactment of an override provision cannot have retroactive effect.
Courts cannot review SUBSTANCE of legislation protected by s. 33 just the FORM of it (in this case, the omnibus
standard override provision), to make sure s. 33 applied correctly.
*****Comments
- for those who see judicial review as a way to protect rights, existence of s. 33 undermines Charter’s protection of rights
-for those who see judicial review as a danger to legislative supremacy and see it as undemocratic, s. 33 is a way to give
the legislature the final say over appropriate scope and limits of certain basic rights
-Lorraine Weinrib argues that s. 33 can be beneficial for judicial review: since legislatures have it at their disposal to
abrogate Charter rights when they need/want to (through s. 33), as long as they do so expressly, it can be understood
that when they choose not to avail themselves of that opportunity, the judges are free to carry their judicial review
responsibilities without being accused of stifling legislative supremacy; it is up to legislatures to bear the political
consequences burden of curtailing rights, leaving courts to do their job if legislature chooses not to bear this burden
-s. 33 use by a legislature can be interpreted not as overriding/curtailing a right, but rather the judicial interpretation of
that right: not taking away rights, just preventing judicial activism
Random
- Politicized nature of notwithstanding clause
- Can Bill of Rights has one too  that Trudeau enacted to use War Measures Act
- In a choice btw sec. 1 and sec. 33  govs tend to favour sec. 1
o (Question of whether sec 33. violates ROL)
5. FUNDAMENTAL FREEDOMS  Case Studies:
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Note in charter  two types of violations
o 1) direct, overt purposive act (infringement)
o 2) or unintended effects  which can come from neutral policies but end up violating
  otherwise good ideas (like no weapons policy) BUT where effects intrude on a minority
group  UNEQUAL EFFECTS
o  question of what reas limits is
 What to do Get rid of rule  change norm for rest of society
  BUT the neutral rule/norm may have unintentional effects  like bad for society (no


weapons policy is good and taking it out would have negative effects on society )  SO
how far do you to go to accommodate
 REASONABLE ACCOMODATION  at what point does state seem to support a
particular group/minority (in opposition to the good of the rest of society –such a balancing
act)
  (this was a concern w/ Multani)  at what point does gov go from being secular
to being implicated in religion
(a) Fundamental Freedoms  Freedom of Religion (s.2[a])
-
Basic protection under section 2(a)
Also under s.15 equality rights  so no discrimination
Claimants usually raise both sources
Quebec Charter has many of the same protections
o Eg. s. 3  every person has right to fundamental freedoms  list includes religion
If s. 2 and 15 don’t work, can always go back to 1 (Quebec equivalent sec.9(1) also note Quebec sec. 10 = nondiscrimination
Also in Can S. 27 endorses multiculturalism and s. 28 gender equality interpretive provision (in Quebec  no equiv to
multiculturalism provision)
Note mention of ‘
Supremacy of God’ in the preamble
R. MOON  ‘The Secularization of Religious Freedom’ (CP 817)
Locke’s argument for freedom of religion was based on 2 ideas:
1.
If government imposes a religion they might mistakenly ban the one true religion.
2.
The acceptance of God and religious truth is meaningless if coerced.
Early proponents of the freedom assumed the existence of religious truth and that its promotion was a good thing, but
disagreed as to whether state support for religion was compatible with this freedom. Some believed it was fine, but others
believed that better religious truths should rise to the top on their own. This formed the basis of the separation of church
and state.
However, both groups, coming from a context of a defined and dominant religion (Protestantism), did not see the total
exclusion of religion from the public sphere as necessary or inherent in freedom of religion.
The modern pluralistic conception of religion instead now sees the root of the freedom in individual autonomy and identity
which rejects the acknowledgement of any particular conception of religious truth. This is a “secular” view of religious
freedom that is fundamentally opposed to the way adherents see themselves or the world.
Modern society’s rejection of these original assumptions has given rise to many questions:
 Agnosticism leads one to ask if there should be such thing as freedom from religion.
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



Diversity raises the question of how far the majority must go to accommodate minorities.
Given freedom of conscience, should religion be treated differently than other moral beliefs?
Are conscience and religion separable in the modern context of individual differences in religious practice?
When the state gives a relative advantage to one faith by its policies, is this an infringement?
Modern religious freedom now entails two more general ideas:
1.
Freedom to religion – the absence of interference by the state in individual practice
2.
Freedom from religion – the absence of imposition by the state of any particular practice
Now there is often a focus on indirect religious imposition rather than religious coercion. Broadly, this implies that
separation of church and state be complete, as in that the state not ever bring in specific religious practices or value systems
into the public sphere. However, does this necessitate the privatization of religion? Many adherents believe that this is not a
neutral position and limits their ability to live according to their religion. Further, it is far easier for the Judeo-Christian
majority to describe their values and practices as “secular” and thus justify them.
“There is no neutral position from which to decide these issues. The judgment as to what must accommodated–what is
reasonable–must be based on a particular moral or political perspective, presumably that of the majority community.”
-
-
-
-
Interculturalism vs. multiculturalism
Hierarchy of rights
Key issues
o When can it be infringed upon
o When causes harm or infringes on rights of others
-In Big M Drug Mart, Dickson CJC articulated the idea that “a truly free society is one which can accommodate a wide
variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct.”
o This reflects the modern identity and autonomy basis of the freedom (i.e. it is not so philosophically
different than multiculturalism, equality, or expression).
When assessing freedom of religion cases, courts have to apply a rational perspective to something fundamentally
irrational.
What is religion
o Does it just include established religion  What about cults
 Freedom of religion has both individual and collective aspects. The government must both avoid
adverse effects to identifiable religious groups and transgressions against individual beliefs.
 Dickson CJC defined “freedom” in this context as “the absence of coercion or constraint, and the
right to manifest beliefs and practices.”
 This seems to include both negative and positive rights: the state may be required to uphold
freedoms.
 e.g. O’Malley – a department store required a Seventh-Day Adventist employee to work on
Saturdays. The court said that the employer should try to accommodate such beliefs.
However, the employer’s duty was limited: it should not have to suffer “undue hardship.”
The employee also had a duty to facilitate this arrangement. (Reasonable
accommodation!!!)
 e.g., a prisoner with a vegetarian diet: the state would have to provide special treatment in
order to provide equal enjoyment of rights.
there is also a concern that state accommodation of religion in situations like this can lead to state entanglement with
religion.
o Atheists and agnostics could then claim that their rights are violated by having to accommodate religion
beyond the reasonable (the effects of which are amplified if they are asked to accommodate every religion).
o Canadian secularism is also possibly tainted by a long Judeo-Christian legacy.
101
Multani v. Commission scolaire Marguerite-Bougeoys [2006]
Facts:
-
Montreal high school
One day Kirpan falls out of clothing by accident
School accommodates wearing of Kirpan but sets a bunch of restrictions
reasonable accommodation of sit
-
After this school commission gets involved and reversed decision to reasonably accommodate
Goes to SCC claiming injunction (quicker than going to Quebec Human Rights Commission since they have
such a backlog
Issues:
- To what extent can religious beliefs be intruded upon to hold up apparently neutral policy (in this case = no
weapons policy  ‘code de vie’)
Held:
- Decision restricting plaintiff from wearing kirpan is null  court finds this on the 2nd prong of Oakes test 
schools should accomodate
Reasoning:
- Government funds schools so it’s under Const law
- Key Charter Rights or Freedoms at issue and their definition and leading cases  (so B and C)  (Sheppard
highlights the following passages):
6. Infringement of Freedom of Religion
32
This Court has on numerous occasions stressed the importance of freedom of religion. For the purposes
of this case, it is sufficient to reproduce the following statement from Big M Drug Mart, at pp. 336-37 and 351:
The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person
chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to
manifest religious belief by worship and practice or by teaching and dissemination. But the concept means
more than that.
. . . Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or
morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his
beliefs or his conscience.
...
. . . With the Charter, it has become the right of every Canadian to work out for himself or herself what his or her
religious obligations, if any, should be and it is not for the state to dictate otherwise.
33
It was explained in Amselem, at para. 46, 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
102
religious dogma or is in conformity with the position of religious officials. [Emphasis added.]
34
In Amselem, the Court ruled that, in order to establish that his or her freedom of religion has been
infringed, the claimant must demonstrate (1) that he or she sincerely believes in a practice or belief that has a nexus with
religion, and (2) that the impugned conduct of a third party interferes, in a manner that is non-trivial or not insubstantial,
with his or her ability to act in accordance with that practice or belief.
(so what HE sincerely believed  not what official sheik religion laid out)
Another key issue  source of violation of right
- Neutral policy
Section 1 analysis
- Prescribed by law (and underlying rule of law principles)
-  b/c under education act ==prescribed by law
(42
As I mentioned above, the council of commissioners made its decision pursuant to its discretion under s. 12
of the Education Act. The decision prohibiting the wearing of a kirpan at the school thus constitutes a limit prescribed by
a rule of law within the meaning of s. 1 of the Canadian Charter and must accordingly be justified in accordance with that
section:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only
to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. )
Oaks test
- 1) objective pressing and substantive b/c ensuring safety in schools  (but not absolute safety b/c this would
then have to extend to metallic objects etc etc. anything that could be construed as a weapon)
- 2) rational connection  yes has the characteristic of a bladed weapon and therefore there’s a rational between
the objective of safety in schools and the object in question.
- 3) minimal impairment  courts have duty to to make reas accommodation for indivs who are adversely affected
by a policy or rule that is neutral on its face and that duty extends only to the point at which it causes undue hardship
to the party who must perform it (para 53)  could they accommodate  burden of proof on gov to show if no
note specifics of situation/school setting  boy didn’t have a violence problem or any history of behavioural
problems (contextual
- Evidentiary (could this discussion maybe have taken place under the deleterious and salutary effects
part??)Sheppard says this is most convincing arg (evidentiary) :
59
In her brief reasons, Grenier J. explained that her decision was based in part on the fact that [TRANSLATION]
“the evidence revealed no instances of violent incidents involving kirpans in schools in Quebec” and on “the state of
Canadian and American law on this matter” (para. 6). In fact, the evidence in the record suggests that, over the
100 years since Sikhs have been attending schools in Canada, not a single violent incident related to the presence of
kirpans in schools has been reported. In the reasons for his interim order, Tellier J. stated the following:
- Contextual vs abstract  it’s a kind of knife so why not limit to increase safety
Sunday Observance Cases
R v. Big M Drug Mart Ltd. [1985]
Facts:
- The federal Lord’s Day Act prohibited opening any business on Sundays.
- Big M Drug Mart stayed open on a Sunday, and was charged.
- Big M challenged the constitutionality of the Lord’s Day Act.
Issues:
- Did the Lord’s Day Act unjustifiably infringe on freedom of religion?
Held:
- Yes
Reasoning:
103
-
Dickson CJC emphasized that both the purpose and the effects of the legislation are independently relevant to
whether there is a s. 2(a) infringement.
- In this case, the purpose of the Lord’s Day Act was found to be religious, i.e., the observance of the Christian Sabbath.
He rejected attempts by the government to recharacterize the law as secularly providing a common day of rest. (There
could be no “shifting purpose”: the Lord’s Day Act’s original religious purpose from 1906 was not replaced by a secular
one over time.)
- The Lord’s Day Act violated freedom of religion because it coerced minorities into observing the Christian Sabbath.
Since the law’s purpose violated freedom of religion, it was unnecessary to examine its effects.
- A purposive approach to freedom of conscience and religion is centred around the centrality of human dignity and
individual conscience. A minimum standard of this would be that the government cannot compel individuals to observe
a specific religious practice.
Comments:
- Because the purpose of the legislation could not be justified, Dickson CJC did not undertake a full s.1 analysis. (This
case came before Oakes.) He said that one cannot use a wrong purpose to justify under s. 1: “it seems clear that
Parliament cannot rely upon an ultra vires purpose under s. 1 of the Charter. This use of s. 1 would invite colourability,
allowing Parliament to do indirectly what it could not do directly.” He furthered this point, saying that it, “is
fundamentally repugnant [to] justify the law upon the very basis upon which it is attacked for violating s. 2(a).”
- In essence, he seems to be saying that if the purpose violates s. 2(a), there is an unjustifiable infringement without
any need of s. 1 analysis.
- The claim that the Lord’s Day Act was secular also contradicted the federalism arguments. If the law was argued to
have a secular purpose, it would lose its federal criminal law “morality” justification, and it would fall under the
provincial head of property and civil rights.
- The SCC has said that strong parties shouldn’t be allowed to use the Charter to roll back protective legislation. What
about the rights of retail workers under pressure from their employers to work on Sundays?
- Issue of standing: It seems strange that a corporation (which doesn’t have a religion or beliefs) could have invoked
freedom of religion to protect its rights. In general, corporations are not protected by section 2(a) because they don’t
have religions or consciences and a subjective analysis is necessary. However, here the purpose objectively violated s.
2(a). One can also imagine religiously-based corporations that could wish to invoke s. 2(a).
In Big M, Dickson CJC provides (what are still) the basic definitions of freedom of religion:
1. “The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses,
the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest
religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.”
(CCL 825)
2. “Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals
or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or
his conscience.” (CCL 825)
3. “In my view, the guarantee of freedom of conscience and religion prevents the government from compelling
individuals to perform or abstain from performing otherwise harmless acts because of the religious significance of
those acts to others. The element of religious compulsion is perhaps somewhat more difficult to perceive (especially
for those whose beliefs are being enforced) when, as here, it is non-action rather than action that is being decreed,
but in my view compulsion is nevertheless what it amounts to.” (CCL 828)
 The phrase “significance to others” shows that it is the plaintiff’s subjective perspective that matters, not the
defendant’s or an objective perspective. (Amselem is the most recent reaffirmation of this principle). The court
now only questions the sincerity of the belief. Once that is proven, the belief is seen as worthy of s. 2(a)
protection.
Edwards Books and Art Ltd. v. The Queen [1986]
Facts:
Edwards Books and three other stores (a fruit market, a fur shop, and a Kosher grocery store) were convicted under the
Ontario Retail Business Holidays Act for having their stores open on Sunday.
104
Issues:
Did the ORBHA unjustifiably infringe on freedom of religion?
Held:
- No
Reasoning:
Dickson CJC found that unlike the federal Lord’s Day Act, the ORBHA had a valid purpose, that of providing uniform
holidays to retail workers (who happened to be predominantly women). However, it had the effect of violating the
freedom of religion of Saturday Sabbath observers.
S.1 analysis:
The purpose of providing a day of rest was self-explanatory.
The rational connection of the Act was justified in singling out the retail industry (because of competitive pressure on it),
and in establishing exemptions for some kinds of businesses.
In terms of minimal impairment, Dickson CJC noted the fact that exceptions were made for small businesses (with seven
employees or less) which closed on Saturday or Sunday. He found this preferable to several alternative arrangements he
could think of.
In the end, he upheld the ORBHA because the means were well-designed to meet the objective.
Beetz J agreed with Dickson CJC in his result, but argued that the ORBHA did not violate freedom of religion, so the s.1
analysis was unnecessary.
Wilson J dissented with Dickson CJC’s upholding of the ORBHA’s exemptions for small businesses. She didn’t like this
patchwork approach to the problem, protecting the religious freedom of some but not others. She would have preferred
a scheme giving anyone the right to open on Sunday rather than Saturday for religious reasons.
Ratio:
POINT:
1. Either purpose or effects can each independently be sufficient to violate s. 2(a).
2. If the purpose of the legislation violates s. 2(a), that constitutes a clear infringement unjustifiable by
s. 1.
Comments:
The Ontario legislature later amended the laws to match Wilson J’s dissent
Two themes arise in discussions on freedom of religion:
1. the nature of the right
- The court takes a generous approach, including belief, declaration and practice.
- It tends to be articulated in individualistic terms, but the collective dimension is underscored in both anti-discrimination
and parental consent cases.
2. the nature of the violation
 In Big M Drug Mart, there was a purposive violation: The government clearly intended to interfere with religious
freedom. The legislation was struck down.
 In Edwards, and Baby Sheena, there were merely effective violations: Secular purposes interfered with religious
freedom. In these cases the legislation was upheld.
Freedom of religion is not absolute.
 ((((In the Baby Sheena case, the parents’ practice of their religion was limited by safety. )))))))
 To what extent are the limits on freedom of religion internal to the right?
 In Big M Drug Mart, Dickson CJC had added the provison that religious practices were protected only if “such
manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and
practices of their own.” But, this limitation was later made part of s.1, not part of s.2(a) itself.
105
(b) Fundamental Freedoms  Freedom of Expression (s.2[b])
Key Rationales for Freedom of Expression (dissent by McLachlin J. in Keegstra, CB 893)
(1) Democracy and political self-government. This also emerged during Bill of Rights area in Alberta case. It reflects the ideal
that the highest speech that the Constitution should protect is political speech in order to protect and advance democracy.
(2) Search for truth. This is Holmes J.’s concept of free competition in the marketplace of ideas as the best way to the truth.
However, this assumes that 1) there is truth, 2) that we will actually reach the truth through simply allowing the freedom, 3)
and that we won’t cause more harm than good in the process of allowing all ideas to be dispersed (as history can show many
cases of).
(3) Intrinsic value/Self-actualization. Self-expression is inherently valuable. This helps show why things such as artistic
expression are protected. However, it is vulnerable to the criticism that it is too broad and amorphous and that other selffulfilling activities satisfy the same criteria
R. MOON ‘The Constitutional Protection of Freedom of Expression’ (CB 896)
 Freedom of expression is grounded in three values: democracy, truth, and individual autonomy (same as McLachlin J).
 The first two of these are instrumental accounts of freedom of expression; the third is an intrinsic account.
 The instrumental/intrinsic dichotomy mirrors the individual/social split in the purpose of the right.
 However, they all rest on a premise that “human agency flourishes in communicative interaction.” All three can be
rewritten in terms of social and community life that transcends the dichotomy.
It also transcends the false “speaker-centred/listener-centred” dichotomy.
Shep on this
- Moon suggests that there is an unduly individualistic approach where speech should be understood in collective,
social dimension  as relational
- That speech operates in community
OWEN FISS Liberalism Divided: Freedom of Speech and the Many Uses of State Power (CB 899)
 The development of modern liberalism has shifted our goals from just liberty as freedom from state intervention to the
pursuit of liberty and equality. These are usually seen as opposed to each other – the achievement of equality often
comes through state intervention in ways that limit liberty. This is the way limits on freedom of expression are usually
seen (e.g. hate speech, media regulation, campaign finance).
- However, one can reconceive limits on freedom of expression as redressing the “silencing” effect that certain
expressions have on disadvantaged groups and compensating for the distortion of public debate.
Shep on this
-  where intervention/monitoring is what is necessary to establish a neutral starting point in freedom of speech
(controlling for hate speech etc.) rather than the traditional view that freedom = non-intervention
- So two version of freedom  positive and negative  liberty and equality (there doesn’t have to be a trade-off)
R v. Keegstra [1990] (Note  Sheppard said we could omit this case) (hate speech) 
Facts:
- Keegstra was a high school teacher who taught his students an anti-Semitic, Jewish conspiracy theory worldview.
- He was prosecuted under s. 319(2) of the Criminal Code.
Issues:
- Did the impugned Criminal Code provisions unjustifiably infringe on freedom of expression?
Held:
- No  4-3 split though
106
Reasoning:
Dickson CJC – majority:
- Using the test set out in Irwin Toy, Dickson CJC quickly found that s.319(2) violated freedom of expression.
- 1) It was a message with meaning that
- 2) was being prohibited directly by the purpose of the legislation.
- He added that “the content of a statement cannot deprive it of the protection accorded by s.2(b), no matter how
offensive it may be.”
-
He then did the s.1 analysis to find whether it was justified or not:
- He found that the Criminal Code provisions did have a “pressing and substantial” objective:
1. Protecting members of target groups from harm (mainly emotional/psychological harm; there are some cases where
hate speech can promote physical violence against groups, but the causal connection evidence is slim, e.g., porn and
violence).
2. Preventing harm to society at large; reducing racial, ethnic and religious tension.
(In finding this, Dickson considered international human rights instruments as well as other Charter provisions, notably
ss.15 and 27.)
-
Before reaching the proportionality tests, he discussed how hate speech is not connected to the core principles of
the freedom and is even opposed to them: Hate speech, “can work to undermine our commitment to democracy
where employed to propagate ideas anathemic to democratic values…This brand of expressive activity is thus wholly
inimical to the democratic aspirations of the free expression guarantee. Indeed, one may quite plausibly contend that it
is through rejecting hate propaganda that the state can best encourage the protection of values central to freedom of
expression, while simultaneously demonstrating dislike for the vision forwarded by hate-mongers.”
-
Rational connection – This requirement was somewhat problematic, because of many arguments that the
criminalization of hate speech does not achieve the reduction of hate-mongering. However, he found that these
arguments were not strong enough to undermine the rational connection between the suppression of hate speech and
the prevention of harm caused to targeted groups. = Rational connection
- Minimal impairment – This requirement was also problematic, because of the possibility of overbroad legislation
and/or a “chilling effect.” However, Dickson CJC held that s. 319(2) was precise enough because of its definitional limits,
the many defenses provided in s. 319(3), and the requirement of a mens rea element that the promotion of hatred be
willful. He considered alternative policy instruments for reducing racism and hate speech, and he praised these, but
held that there was still a limited role for s. 319(2). He also asserts that requiring that actual harm be proven would
impose too great a burden on the government and that they have the right to act on prevention of harm (e.g. drinking
and driving).
McLachlin J – dissent:
- Rational connection – She disagreed with Dickson CJC, arguing that criminalization has been shown to give a platform
to hate-mongers and this undermines claims of effectiveness of the legislation.
- Minimal impairment – She also disagreed and considered the legislation too vague and broad with respect to alternative
remedies:
1) Hate speech is hard to define: “hatred is a broad term capable of catching a wide variety of emotion”
2) The “willful” intention component still doesn’t prevent innocent speech from being convicted – there should instead
be a requirement of proof of actual harm caused by the hate speech.
3) The goals can be achieved in a less intrusive way: using civil regulation rather than criminal.
4) The “chilling effect – will cause self-censorship contrary to the goal of s. 2(b).
Comments:
- Dickson CJC’s comments about needing to restrict hate speech because of the harm come from the fact that,
according to the Cohen Committee Report, “individuals can be persuaded to believe ‘almost anything’ if information or
ideas are communicated using the right technique and in the proper circumstances.”
- This seems to be an idea incompatible with freedom of expression’s underlying principle of allowing the truth to come
out and letting better ideas convince the public.
107
-
McLachlin J made an important comment in her “rational connection” section: “Prosecutions of individuals for
offensive material directed at a particular group may bolster [targeted] members’ beliefs that they are valued and
respected in their community, and that the views of a malicious few do not reflect those of the population as a whole.”
This communitarian justification for hate speech restrictions seems to be too often overlooked. (MARTYRING)
-
To what extent do teachers have freedom of expression in the classroom anyway? They perform a job whose duties
are acutely sensitive to any abuse of their position with respect to their students.
- The court rejected a side argument that hate speech could constitute a form of “violence” that is not within the
scope of Freedom of Expression as per Irwin Toy.
(Dolphin Delivery) Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. [1986]
(SEE MORE IN DEPTH SUMMARY ABOVE)
the first s.2(b) case that came to the SCC. The SCC held that picketing (and any non-violent activity that conveys a
message) is expression under s. 2(b). However, since it was secondary picketing and constituted the tort of inducement
to breach a contract, the infringement was saved by s. 1.
Framework for a Doctrinal Structure for Freedom of Expression Cases (Dickson CJC, Lamer and Wilson J. in Irwin
Toy – CB 907)
1. Did the activity count as “expression”? (Does it convey meaning)
This test is very broad: “…if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie
falls within the scope of the guarantee.”
2.Is it being prohibited?
- A) (Directly) Did the government’s action have the purpose/intent of restricting freedom of expression?
Here the judges make a distinction between restrictions on forms of expression (e.g., anti-pamphleting laws) and restrictions
on the physical consequences of forms of expression (e.g. anti-littering laws which affect pamphleting). It can’t just be the
consequence of an action that did not have the intent.
- B) (Indirectly) Did the government’s action have the effect of restricting freedom of expression?
The plaintiff must state (burden is on plaintiff) her claims with regard to one of the three principles underlying freedom of
expression, demonstrating “that her aim was to convey a meaning reflective of the principles underlying freedom of
expression.”
Comment: Why are the core principles of freedom of expression only relevant to the effects and not also to the
purpose/intent of the government action/legislation? Some argue that this distinction is redundant because any activity that
conveys meaning will be found to serve the values underlying the guarantee.
 NOTE: There is a lot of criticism on what seem to be arbitrary distinctions. Even limiting expression that
constitutes criminal or tortious conduct is suspect since expression often involves advocating for things not
permitted by law (i.e. civil disobedience). Also, the court has not adequately defined “violence” in order to know
where the limit on expression is. Judges are thus often in disagreement about what constitutes the right and
how it should be enforced.
Irwin Toy Ltd. v. Quebec (AG) [1989]
Facts:
- The Quebec Consumer Protection Act banned advertising aimed at kids under age 13.
- The Office de la Protection du Consommateur said that Irwin Toy had violated these provisions
- Irwin Toy brought an action claiming that the provisions were ultra vires the province and inconsistent with the
Quebec Charter.
- Once the federal Charter came into force, Irwin Toy amended its actions to use s. 2(b).
Issues:
- Did the impugned provisions of the CPA unjustifiably infringe on freedom of expression?
Held:
108
- No
Reasoning:
See Test above [Framework].
Dickson CJC, Lamer and Wilson J. found that the advertising counted as expression, and that it was restricted by the CPA.
So the real test was under s.1. The judges found that the legislation had a valid objective, i.e., protecting children from
manipulation. Although the social science evidence of harm was uncertain, the judges said, “This Court will not, in the
name of minimal impairment, take a restrictive approach to social science evidence and require legislatures to choose
the least ambitious means to protect vulnerable groups.”
On a separate note, the court also found that s.7 does not apply to corporations
(c) Life, Liberty and Security of the Person (s.7)
Section 7 – everyone has the right to life, liberty and security of the person AND fundamental justice
 2 pronged inquiry  is there an interference related to or deprivation of:
 1) Security of the person, and liberty (life in rare cases)
 2) Fundamental justice (procedural preferred because it is less intrusive for courts to intervene + substantial
 the law itself)
 But lots of times both are considered see cases below
-
s.7 appears at the outset of the section on “legal rights”: ss.7-14 deal with criminal procedure issues.
How does this interact with s.1? s.1 for emergency only? Still widely debated.
“Everyone” includes: every person on Canadian soil, including undocumented immigrants. It does not include
corporations (this was decided in Irwin Toy) or fetuses (see Borowski).
-
There is also the idea of “natural justice,” which says that if someone is affected by state action in a distinct and
particular way, they should be entitled to a hearing overseen by independent and impartial officials.
- In Canada, liberty generally means freedom from physical restraint or from being compelled to submit to fingerprinting,
to produce documents, etc.
 The SCC rejected the idea that “liberty” includes economic liberty or freedom of contract.
 Political liberties are protected elsewhere in the Charter; they are not covered by s.7.
 (( Pretty much, every time there is risk of imprisonment your right to liberty is at risk  even if the intention was
absent))
 The right to property was deliberately omitted from s.7 (and from the Charter as a whole), although property is still
protected (vis-à-vis the federal government) by the Canadian Bill of Rights.
- The idea of “the principles of fundamental justice” evolved from “natural justice,” which is purely procedural. It was
unclear whether “fundamental justice” was purely procedural or substantive too, until BC Motor Vehicles Reference.
This was the first case to deal with nature and scope of s.7:
Reference re Section 94(2) of the Motor Vehicle Act (BC) [1985]
Facts:
- The BC Motor Vehicles Act imposed a fine and imprisonment on anyone who drove while their licence was suspended,
regardless of whether they knew about the suspension.
- No defences were allowed.
- Fundamental problem = in crim law idea that you should have a guilty mind need mens rea, actus reus
Issues:
- Did the impugned provision deprive persons of their liberty in a way not in accordance with the principles of
fundamental justice?
Held:
- Yes
Reasoning:
- Lamer J held that “life, liberty and security of the person” was a threshold inquiry.
- “Principles of fundamental justice” was meant to be a substantive test.
109
-
-
Lamer refers to drafters intent where they appear to have been limiting life, liberty etc to procedural where
substance of law couldn’t be challenged but how it was applied
((so then the principles of fundamental justice refer to the substantive aspect and life liberty etc is a procedural test))
(s.7 was certainly not just meant to be an umbrella to introduce ss.8-14. ss.8-14 were specific illustrations of the
general principle in s.7.)  AND the sections that follow involve both substance and process
However, Lamer J shied away from defining the principles of fundamental justice, except to say that they “are to be
found in the basic tenets of the legal system”, i.e. interpretation fundamental justice should be decided by judges not
policy makers and must be distinguished from natural justice.
He held that “principles of fundamental justice” had two prongs:
1. Is the law substantively fair? (Should we have a law at all?)
2. Is the procedure fair?
== so Lamer concludes that law is substantively unfair in that there is no ‘guilty mind’ and strikes down the law
and affirms that the test go beyond solely procedural
(my explanation >>so where substantive is the actual laws, rights etc and procedural is that which connects these
points, or their application >>>so he’s saying that the test should not just look at the application of the laws but
should go beyond and actually consider the laws themselves>>>and actually strike down a law where it is unfair)
Gosselin case dealt with a woman who received a very small social assistance cheque.
- Arbour J, dissenting, found that citizens had a positive right to basic welfare entitlements.
According to Arbour J dissenting, interprets s. 7 differently saying that s.7 should be interpreted to include two sets
of rights:
“life, liberty and security of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justice”
“life, liberty and security of the person” per se, without reference to fundamental justice.
- Meaning that life, liberty, and security of person should be a positively implemented right
This reading is supported by the French version of the text, which uses a semicolon rather than the word “and.”
However, the mainstream interpretation of s.7 is as one single set of rights, with a qualification.
R v. Morgentaler [1988]
Facts:
- Note  this is the Charter challenge case not the other one from federalism
- Morgentaler was prosecuted under s.251 of the Criminal Code, which prohibited anyone from performing abortions.
- (s.251(4) created an exception for abortions performed in accredited hospitals and approved by a “therapeutic
abortion committee” of three doctors other than the doctor who would perform the abortion.)
- Issue of whose rights are we dealing w/
Issues:
- Did the impugned provision violate constitute a charter violation under s.7  violation of security of person for women
and fundamental justice? (what about foetus?)
Held:
- yes (what is a person)
Reasoning:
Dickson CJC, for the majority,
- took the least controversial route, overturning the law for procedural reasons.
- He found that the therapeutic abortion committee requirement impinged on security of the person by interfering with
“a woman’s bodily integrity in both a physical and emotional sense.” (so more than just bodily constitutes violation
of security of person)
- He also appears to have alluded to the idea of choice, if only in passing: he talked about the Criminal Code provisions
in terms of “criteria entirely unrelated to her own priorities and aspirations” and “the removal of decision-making
power.”
110
-
Dickson CJC held that this impingement was not in accordance with the principles of fundamental justice, because
the Criminal Code provisions made legal abortions inaccessible to many women in practice. If the Criminal Code
provides a defence to a criminal charge, it must be a real one. The provisions were “manifestly unfair.”
Beetz J wrote a concurring judgement
- in which he held that the law did conform to the principles of fundamental justice, but was not justified under s.1.
- He did not talk about autonomy and decision-making  only the risk of some women being denied access to
abortion because of circumstances.
Wilson J (the first woman appointed to the SCC, and the only one at this point) wrote a concurring judgement
- focused on substantive issues.
- She held that s.251 violated women’s liberty as well as their security of the person.
- Her judgment had a strong feminist tone, including an assertion that it was probably impossible for a man to respond
to such a dilemma  and that human rights in general have been prefaced on men’s concerns
- Wilson J’s judgment contained both liberal and communitarian elements. On one hand, she wrote about an “invisible
fence over which the state will not be allowed to trespass.” On the other, she wrote about “the way the woman thinks
about herself and her relationship to others and to society at large.”
- She also writes of respect for indiv decision-making as an imp part of being a liberal society
- Refers to Big M Drug Mart case where reference to  beliefs about human worth and dignity as political trad
underlying the charter
All of the majority judges agreed that the law could not be saved by s.1.
- Wilson wrote that the state’s interest in protecting the foetus would grow stronger as the pregnancy progressed.
MacIntyre J and La Forest J dissented,
- saying there is nothing in constitution about rights to terminate a life, so it should not be read in.
Comments:
Shep
- flaws of therapeutic abortion committee blur line btwn substance and process
-
The arguments about delays seem to beg the question. If it was only a process issue, why strike down the law? (cf.
Little Sisters)
- This is why Wilson J believed it necessary to confront the problem head on.
- Some argue that abortion should have been dealt with under equality rights. b/c could be said that limiting
reproductive freedoms of women? not so much though
NOTE  Foetuses are not included within “everyone” under s.7 (or any other Charter right). This was decided by the
Manitoba Court of Appeal in Borowski v. A.G. Canada, a pro-life challenge to s.251. While Borowski was preparing to appeal,
the SCC decided Morgentaler, and then declined to hear Borowski’s appeal.
Rodriguez v. British Columbia (AG) [1993]
Facts:
- Rodriguez suffered from Lou Gehrig’s disease.
- She sought a declaration that she was entitled to help committing suicide when her condition became unbearable and
if she was unable to commit suicide on her own.
- s.241(b) made it a criminal offence to help someone commit suicide.
Issues:
- Did s.241(b) of the Criminal Code infringe s.7?
Held:
- NO
Reasoning:
Sopinka J held that
- liberty and security of the person had to be balanced against other principles. These had to be legal principles, not
just a vague moral ideals. (This was part of the definition of “fundamental justice in a substantive stance.”)
- In this case, he found that the purpose of s.241(b) was preserving the sanctity of life and protecting the vulnerable—
111
which were both legal principles.
He acknowledged that s.241(b) impinged on Rodriguez’s security of the person: This case confirmed that questions of
bodily integrity were governed by “security of the person.”
- ***However, Sopinka J found that the law was not contrary to the principles of fundamental justice.
- He held that there was a meaningful distinction between assisted suicide and overdoses of painkillers in the guise of
“palliative care” or natural death through refusal of treatment.
McLachlin J, dissenting,
- argued parallel to the Morgentaler case, that s.241(b) deprived Rodriguez of security of the person, because it denied
her the right to make decisions surrounding her own body.
- She held that this was not in accordance with the principles of fundamental justice. A law that is “arbitrary” or
“unfair” cannot be in accordance with the principles of fundamental justice. In this case, physically disabled people
were denied a choice that was available to others. (so discriminatory against disabled  could this be an equality issue
then?)
- McLachlin J held that countervailing principles were not relevant to a s.7 analysis—they should be saved for s.1. In s.7,
the burden of proof was still on the claimant.
ILamer CJC also dissented,
- arguing that s.241(b) discriminated on the basis of physical disability—he would have overturned it for violating
equality rights.  differential effect of law He would have suspended the invalidity for one year, granting Rodriguez a
constitutional exemption in the meantime.
Also  issue of risk of abuse
Comments:
- principals of fundamental justice must reflect society  sanctity of life etc.
- This case was almost entirely about substantive issues.
- The court hasn’t resolved the issue of whether to balance countervailing principles under s.7 or only under s.1.
- Hogg uses this as an example of the “broader” approach to “the principles of fundamental justice,” considering
societal values, not just the principles of the legal system.
- Rodriguez went and received assisted suicide anyway, and the people who helped her were never prosecuted.
-
Suresh v. Canada (Minister of Citizenship and Immigration) [2002]
Facts:
- Sri Lankin refugee
- Found to be involved in terrorist activities and was to be deported
- Argued that if he were deported he would face torture
- To what extent is Can gov and Charter implicated, where deporting people, in the responsibility for their
torture/death/etc.
Issues:
- Is deportation when known torture will occur in violation of s. 7 and the Charter?
Held:
- Yes
Reasoning:
 Gov is liable and Charter can be violated when take an act where it is known person will receive the death penalty
etc (security of person will be violated?)
 Balancing act btwn combating terrorism and refugee’s interest in not being deported to torture
 Refugee was able to meet the threshold of establishing a prima facie case that there may be a risk of torture upon
deportation
 Ultimately leaves it open to minister to decide on this states that the result of the deportation must be known
 The SCC here seemed to minimize the role of s.1 in s.7 cases—it said that s.1 should only be used in exceptional
circumstances (like war).
 Generally, the court has held that s.1 can not be used to justify a breach of s.7. If a law is not in accordance with
the principles of fundamental justice, it cannot be justified. The SCC has used s.1 analysis in s.7 cases, but
according to Hogg, it has never been used by a majority to justify a breach of s.7.)
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(d) Equality Rights (s.15)
-
Notion of equality comes from Canadian Bill of Rights
o Non-discrimination and equality before and under the law
s. 15 of Canadian Charter of Rights and Freedoms:
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.
(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.
-EQUALITY OF OPPORTUNITY
MAIN RULE ABOUT EQUALITY RIGHTS:
 while court cannot force government to provide benefits, if the government chooses to do so, they must do so equally (to
everyone, cannot leave out some groups/individuals=> courts will enforce this)
 Canadian law now recognizes a duty to accommodate difference, to the point of “undue hardship”: effects on others are
taken into account.
 s.15 can only be invoked by “every individual” (corporations and groups are specifically excluded). ( as opposed
corporations’ exclusion from s. 7)
 However, the French version of s.15(1) says “personnes” rather than “individus,” so it’s unclear.
 s.15 provides that every individual is:
 equal before the law: This was the phrase used in the Canadian Bill of Rights.--> more formal equality situation
 equal under the law: This was meant to refute Ritchie J’s suggestion in the Lavell case.  this is more the
substantive aspect
 and has the right to
 equal protection of the law: This is derived from the US constitution.
 equal benefit of the law: This was meant to refute Ritchie J’s suggestion in the Bliss case.
- 1950s-60s  beg to see emergence of anti-discrimination legislation
- Even when Charter and equality provision implemented  didn’t come into effect until c. 1985 as time was need to go
through all of the different legislation to weed out equality problems
- 1970s-80s  can see early questioning of notion of equality as sameness
o  emergence of adverse effects doctrine  where can have discrimination even treatment is the same
across the board
o Discriminatory effects vs adverse effects
- Mid-80s  idea that a truly discriminatory had to show intent to mistreat or harm a particular group etc
Critique of equality as assimilation
- Notion that must act the same to be treated the same
o Eg for a female to have act more male in order to be treated as his equal
o Equality of sameness  conforming
- Remedies for incidental effects
o Change neutral rule
 Implications?
o Or accommodate
 Where differential treatment CAN ACTUALLY BE MORE EQUAL
o Or can leave the rule unchanged and essentially let the disadvantage go un-addressed
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 Sheppard gives eg. of the “mummy” track at law firms
Legal equality can be more complicated
- Emerged first in statutory context and moved into constitutional realm where gov being challenged
-
Formal equality vs substantive equality  equality that is applied the same across the board vs ACTUAL equality
- In Andrews, courts begin to go down a dif path
Andrews v Law Society of BC (1989)=> first s. 15 case; set out a test for discrimination that was reformulated in Law v Canada
(Minister of Employment and Immigration) (1999):
Andrews v. Law Society of British Columbia [1989]  sets out first s.15 test  intersection w/ s.1
Facts:
- Andrews, British subject permanent resident of Canada, brought action for declaration that Canadian citizenship
requirement for admission to the Law Society of BC violated s. 15 of Charter
Issues:
- Did Canadian citizenship requirement violate s. 15 of Charter?
Held:
- yes
Reasoning:
McIntyre:
Concept of Equality:
 -S. 15(1): for every individual, a guarantee of equality BEFORE AND UNDER THE LAW, equal protection and equal
benefit of the law without discrimination=> applies to Acts of Legislature
 equality means that a law meant to bind all equally should not have more burdensome effects on some because of
irrelevant personal differences
 s.15 seeks to ensure equality in the formulation and application of the law
 -promoting equality entails promotion of a society in which all are secure in the knowledge that they are recognized at
law as human beings equally deserving of concern, respect and consideration
 large remedial component
 -promotion of equality under s 15 has a more specific goal than mere elimination of distinctions
 s. 15(2): fact that identical treatment may frequently produce serious inequality is recognized
Discrimination:
 s. 15: guarantee against law-enforced discrimination
 defn: distinction based on grounds relating to personal characteristics of the individual group, which has the effect of
imposing burdens, obligations or disadvantages on such individual or group not imposed on others, or which
withholds or limits access to opportunities, benefits, and advantages available to other members of society
 impact of discriminatory rule or standard on the affected person is what matters in looking at an instance of
discrimination
 approaches to interpreting s. 15: McIntyre disagreed with 2 of them
1) every distinction made by the law is discriminatory and thus justifiable only pursuant to s. 1  thought that it
trivialized the notion of discrimination and denied role to s. 15;
2) discrimination as unfair or reasonable differences in treatment=  rejected this b/c left no role for s.1
3)(but adopted this view)  that s. 15 is limited prohibiting difs in treatment on the basis of prohibited grounds
 = the enumerated and analogous grounds approach (analogous groups  not explictly: right model of interpretation
for s. 15

not enough to focus only on the alleged ground of discrimination and
decide whether or not it is an enumerated or analogous ground=> effect on the complainant of distinction
being made must be considered

complainant under s 15 must show:
1) he is not receiving equal treatment before and under the law OR law has a different impact on him in
the protection or benefit accorded by law;
2) legislative impact of law is discriminatory

discrimination=breach of s. 15; where s. 15(2) dn apply, any
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consideration of factors that could justify breach take place under s. 1
citizenship status=analogous ground of discrimination, because as
Wilson J concurred, non-citizens are vulnerable to having their interests overlooked in the legislative
process because they lack political power; consequently, they should have access to s. 15 rights

La Forest J added that because citizenship status is

1) immutable, beyond control of individual at least temporarily;

2) generally irrelevant to legitimate work of government and to
individual’s ability to perform/contribute to society, it should be seen as an analogous ground for
discrimination, and thus give rise to a s. 15 challenge
S. 1 justification:
 while Court was unanimous on the interpretation of s. 15, they diverged on the point of whether the violation was
justifiable under s. 1:
 McIntyre (minority on the issue) said that it was introducing a deferential approach to the state’s burden of
justifying s. 15 violations; the rest of the court thought that citizenship requirement was not linked closely enough
with candidate’s ability to practice law, therefore violation not justifiable.
 McIntyre: s. 15(1) is very broad guarantee and it should not be interpreted so strictly that it hinders government
work which includes unavoidable decisions and categorizations; violations of rights can be upheld if governments
are pursuing sound objectives in a reasonable manner  relaxing of the Oakes s. 1 test to lessen the burden on
government so that they may go on with their work unhindered
 Wilson and LaForest JJ: given that s. 15 is designed to protect those groups who suffer social, political and legal
disadvantage in our society, the burden should rest on government to justify discrimination (by way of s. 1
analysis).
Basically McIntyre J said that the purpose of s.15 was not to eliminate all unfairness completely, but to prohibit
discrimination based on immutable personal characteristics. - sameness vs differentiation
Ratio:
Andrews Principles framing idea of constitutional equality:
1) equality cannot be reduced to sameness of treatment: because of differences, laws treating all the same may
actually discriminate, and laws treating people differently are not necessarily legal discrimination
2) equality cannot be reduced to a requirement that laws be framed rationally and administered consistently
(rejection of similarly situated test)
3) actual effects of challenged law must be focus of analysis, not whether discrimination was intentional or not.
4) To amount to a violation of s. 15, must establish differential treatment that amounts to discrimination on the
basis of personal characteristics that is either enumerated in s. 15 or analogous to one of the enumerated
characteristics.
5) Personal characteristic will be accepted as analogous ground if it shares essential characteristics of enumerated
personal characteristics in s 15.
THREE STAGE TEST for determining whether breach of s. 15 has occurred:
To prove breach, the claimant must establish:
1) differential treatment
2) on the basis of an enumerated or analogous ground
3) that had the effect of imposing a disadvantage


The Andrews case set the stage for the substantive equality approach. It was followed by a fracturing of consensus. All
kinds of tests were devised.  until Law case and a consensus was finally reached
Law v. Canada (Minister of Employment and Immigration) [1999]
Facts:
- Nancy Law was 30 years old when her husband died;
- she was denied benefits under the Canada Pension Plan (survivor’s benefits) because she was younger than 45 at the
time of her husband’s death.
- (Law had no disability, and no dependent children.)  and can’t receive benefits until 65
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Issues:
- Was the minimum age requirement for CPP benefits unconstitutional?
Held:
No
Reasoning:
Summarizing the court’s approach, Iacobucci J wrote:
1. It is important to interpret s.15(1) purposively and contextually, and not to use a rigid test.
2. The court should focus on three central issues:
A. whether there is differential treatment, in purpose or effect
B. whether the differential treatment is based on enumerated or analogous grounds (And also compare to
opposite type group)
C. whether the differential treatment has discriminatory purpose or effect (in substantive sense  so even if not
in formal  are there adverse effects)
3. The court should make three “broad enquiries”:
A. Does the impugned legislation
(a) make a formal distinction based on personal characteristics
or
(b) fail to consider disadvantage resulting in substantively different treatment?
(If yes to this question, there is differential treatment.)
B. Is the differential treatment based on one of the enumerated or analogous grounds?
C. Does the differential treatment discriminate substantively, considering prejudice, stereotyping, historical
disadvantage, etc.? (This third prong is subject to the most criticism.)
4. The purpose of s.15(1) is “to prevent the violation of essential human dignity and freedom through the imposition of
disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal
recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern,
respect and consideration.”
5. To find a violation, the impugned law must conflict with this purpose when considered in context.
6. Acknowledging that equality is a comparative concept, Iacobucci says that it should be up to the claimant to choose the
reference point for comparison (i.e. comparator group) (although the court may refine this).
7. The court should consider contextual factors both subjectively and objectively: it should use the point of view of the
reasonable person “possessed of similar attributes to, and under similar circumstances as, the claimant.”
8-9. A variety of contextual factors can be considered, such as
 pre-existing disadvantage or vulnerability
 relationship between differential treatment and the claimant’s needs or circumstances
 the ameliorative purpose or effect of the law on other persons or groups
 the nature and scope of the interest affected (e.g. employment, housing, health care)
This list is not closed. The general theme, according to Iacobucci J, is that “an infringement of s.15(1) of the Charter exists
if it can be demonstrated that, from the perspective of a reasonable person in circumstances similar to those of the
claimant who takes into account the contextual factors relevant to the claim, the legislative imposition of differential
treatment has the effect of demeaning his or her dignity.”
10. The claimant doesn’t necessarily have to show evidence of a violation of dignity or freedom. (although the onus proof
is on the claimant under s.15)
Iacobucci emphasized that the intention of the legislation did not have to be discriminatory. (adverse effects)
- **In this case, the court found that there was differential treatment based on age, but that this was not discriminatory
since people under 35 were not a disadvantaged group, and that the law was designed to help older surviving spouses.
-even though there was differential treatment  it was reas b/c it was specifically set to protect people needing
full benefits  so justified
Comments:
Commentators like Hogg think the human dignity requirement, even with specified contextual factors to consider, is too
vague.
It also shifts much of the discussion to s.15 and leaves little for s.1, which leaves much of the burden of proof on the
claimant. (Iacobucci acknowledged this problem and mitigated it to some extent with #10—the claimant not having to
show evidence)
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Test of Equality laid out in Law v. Canada (CB1162)
The Law test attempted to provide a formula for when it’s fair to treat people the same, and when it’s fair to treat them
differently.
A. Does the impugned legislation
(a) make a formal distinction based on personal characteristics; or
(b) fail to consider disadvantage resulting in substantively different treatment?
(If yes to this question, there is differential treatment.)
B. Is the differential treatment based on one of the enumerated or analogous grounds of s.15?
C. Does the differential treatment discriminate substantively, considering prejudice, stereotyping, historical disadvantage,
etc.? (This third prong is subject to the most criticism.)
The Law case established a unified but malleable test: it has been interpreted in many different ways.
The SCC has recognized four “analogous grounds” of discrimination:
 citizenship (Andrews)
 the court emphasized lack of political power.
 sexual orientation (Egan)
 La Forest J (and three others) emphasized immutability.
 Cory J (and three others) focused on historical disadvantage, stereotyping and prejudice.
 marital status (Miron v. Trudel)

McLachlin J emphasized individual dignity and freedom, historical disadvantage and prejudice, and nearimmutability.
 off-reserve Aboriginal status (Corbière)
IACOBUCCI J’s TEST FOR DISCRIMINATION FROM Law:
A) Differential Treatment:
FIRST STAGE OF s. 15(1) analysis: is there differential treatment:
a) Direct discrimination: explicit differential treatment/distinction based on a prohibited (listed or analogous) ground; law
erects a barrier for one segment of the population that does not affect the rest
(i.e. Andrews)
b) Adverse effects discrimination/indirect differential treatment: there is formal but not substantive equality; law fails to
ensure that a benefit available to everyone can be taken advantage of by everyone; meaning of s. 15(1) is said to be
substantive not formal equality.
B) Enumerated and Analogous Grounds:
SECOND STAGE of s. 15(1) analysis: is differential treatment done on basis of a personal characteristic either listed or
analogous to the listed characteristics in s. 15(1)
 different views on the merits of grounds in s. 15(1) analysis: l’Heureux Dube (1995 trilogy) says courts could better
analyse experience of discrimination if dropped requirement of grounds; Pothier (below) defends role of grounds on the
basis that they focus attention on history and social reality of unequal power relations
--Andrews: personal characteristic=analogous ground only if it shares essential features of an enumerated ground for
discrimination (i.e. group characterized by lack of political power—first analogous ground of discrimination)
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--three other analogous grounds of discrimination: Egan: sexual orientation because it is a characteristic unchangeable or
changeable at an unacceptable personal cost, and form a group historically disadvantaged and an identifiable minority;
Miron v Trudel: marital status because has to do with essential dignity of a person, patterns of historical disadvantage and
because individual does not exercise exclusive control; marriage is inaccurate marker of relationships characterized by
financial interdependence relevant to objective of legislation in Miron; Corbiere: status of off-reserve member of Aboriginal
band because it is an immutable characteristic; ruled that characteristic might be analogous if:



It is immutable, difficult to change, or can only be changed at an unacceptable cost.
The group is lacking in political power, disadvantaged, or vulnerable.
If the ground is recognized in human rights statutes (e.g., social condition)
REVIEW: differential treatment based on analogous grounds:
 When deciding if a certain characteristic of a minority is analogous, must take into account:
 Whether minority is insular
 What the comparator group is
 Whether the ground is immutable
 Whether the ground is a historical marker of discrimination
3) Substantive discrimination:
THIRD STAGE of s. 15(1) analysis: does discriminatory treatment have discriminatory purpose or effect? Does differential
treatment discriminate in substantive sense?
 Law states that purpose of constitutional guarantee of equality is protecting human dignity? Look at what reasonable
claimant would feel
Critiques of Iacobucci test for discrimination from Law:
--formula does not provide a way of knowing outcome of discrimination cases
--human dignity idea: supposed to underscore substantive equality but makes it more difficult for claimants who have to
prove that their dignity has been affected
Duty to accommodate:
 if accommodating minority causes undue hardship on institution/other groups, there will be countervailing justification
for not accommodating them (burden is on institution who has to accommodate to show undue hardship)
R. v. Kapp [2008]
Facts:
- The federal government has pursued various policies with a view to increasing aboriginal involvement in the
commercial fishery.
- These policies are] united under the umbrella of the “Aboriginal Fisheries Strategy,”
- [which] has three stated objectives: ensuring the rights recognized by the Sparrow decision are respected; providing
aboriginal communities with a larger role in fisheries management and increased economic benefits; and minimizing the
disruption of non-aboriginal fisheries
- The appellants are commercial fishers, mainly non-aboriginal,
- who assert that their equality rights under s. 15 of the Canadian Charter of Rights and Freedoms were violated by a
communal fishing licence granting members of three aboriginal bands the exclusive right to fish for salmon in the mouth
of the Fraser River for a period of 24 hours on August 19-20, 1998.
- The appellants are all commercial fishers who were excluded from the fishery during the 24 hours allocated to the
aboriginal fishery under the communal fishing licence
Issues:
- Were rights of commercial fishers equality rights violated under s. 15
Held:
- No  protected under s. 15(2)
Reasoning:
- Back to Andrews test  where concept of equality doesn’t necessarily mean identical treatment
118
-
-
-
-
-
Idea that s.15(1) and (2) work together to promote vision of substantive equality underlying s.1 as whole
S.15(1)  aimed at preventing discriminatory distinctions that impact adversely on members of groups identified by
the grounds enumerated in s. 15 and analogous grounds
Law case establishes 2 part test for 15(1)
1) does law create a distinction based on an enumerated or analogous ground
2) does distinction create disadvantage by perpetuating prejudice or stereotypic --Law divides this into three step 
but here they say the view is just  what is substance
In Andres discriminatory impact viewed through lens of two concepts
1) the perpetuation or disadvantage to members of a group on the basis of personal characteristics IDed in the
enumerated and analogous grounds
2)stereotyping on the basis of these grounds that results in a decision that doens’t correspond to a claiment’s or group’s
actual circumstances and characteristics
From Law case  look at discrimination in terms of impact on the ‘human dignity of members 4 contextual factors
1)pre-existing disad
2) degree of correspondence btw the differential treatment and the claimant group’s reality
3) Whether the law or program has n ameliorative purpose or effect
4) the nature of the interest affected
Law case (?b/c of this?) achieved unification of div in approach to s. 15 by reiterating and confirming the Andrews
interpretation of 15 as a guarantee of formal and not just substantive equality
But difficulties from Law case in relation to employing human dignity as a legal text
But acknowledgement that human dignity is an abstract and subjective notion
As per Law  4 factors
1) pre-existing disadvantage and nature of interest affected
2) stereotyping
3) ameliorative focus or effect of law  is purpose remedial w/in the meaning of 15(2)
= Law test affirms Andrews approach to substantive equality
15(1) focuses on preventing govs from making distinctions based on enumerated or analogous grounds that have the
effect of perpetuating group disadvantage and prejudice or impose disadvtge on basis of stereotyping
15(2) focuses on enabling govs to pro-actively combat existing discrimination through affirmative measures
McIntyre in Andrews says  complainant under s. 15(1) must shownot only that not receiving equal treatment bef and
under the law or that law has differential impact on him in the protection or benefit accorded by law BUT MUST ALSO
SHOW that the legislative impact of he law is DISCRIMINATORY  meaning that not every distinction is
discriminatory (like in Nancy Law)  by very nature programs designed to ameliorate the disadvantaged group will
inevitably exclude indivs from other groups. Andrews requires THAT DISCRIMINATORY CONDUCT ENTAIL
MORE THAN DIFFERENT TREATMENT
(IN THIS CASE) appellants argue that they were treated differently based on an enumerated ground, race.  Gov
argues that program ameliorated conditions of disadvtg inivs or groups
(IN THIS CASE) dealing w/ statutue and regulation  qualifies as ‘law, program or activity’ within meaning of
15(2)  what about remaining criteria of 15(2)  the having object of amelioration of conditions of disadvantaged
groups thing
(NOTE LOVELACE CASE DEALS EXPLICTLY W/ RELATIONSHIP BTWN 15(1) AND 15(2)  where can read
15(2) as an interpretive aid to 15(1) or read it as an exception or exemption from the operation of 15(1) IACOBUCCI
FAVOURS INTERPRETIVE AID APPROACH
*** HERE IAOCOBUCCI SUGGESTS 3RD OPTION  if gov can show that an impugned program meets 15(2)
criteria it may be unnecessary to conduct a s15(1) analysis at all so where 15(1) AND 15(2) SHOULD BE READ AS
WORKING TOGETHER TO PROMOTE SUBSTANTIVE EQUALITY
 where 15(1) prevents govs from making distinctions based on enumerated or analogous grounds and 15(2)
enables them to pro-actively combat discrimination
[41] We would therefore formulate the test under s. 15(2) as follows. 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. In proposing this test, we are
mindful that future cases may demand some adjustment to the framework in order to meet the litigants’ particular
circumstances. However, at this early stage in the development of the law surrounding s. 15(2), the test we have
described provides a basic starting point — one that is adequate for determining the issues before us on this appeal, but
119
leaves open the possibility for future refinement.
[42] We build our analysis of s. 15(2) and its operation around three key phrases in the provision. The subsection protects
“any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups”.
While there is some overlap in the considerations raised by each of these terms, it may be useful to consider each of them
individually.
Has as at its object
Purpose or effect of legislation
Lang of 15(2) suggests legislative goal rather than actual effect is the paramount consideration  favours the purpose
approach --intent!
Ameliorative purpose  Shep highlights this prong as imp
- Court ccan find little justification for requiring the ameliorative purpose to be the sole object of a program it’s
unlikely that a single purpose will motivate any particular program
- Suggestion that laws designed to restrict or punish behaviour would not qualify for 15(2) protection
Disadvantaged
- As laid out in Andrews
-  just need group as a whole to have experienced discrimination
Application of 15(2) to this case
-
Ratio:
Comments:
Lovelace [2000] (extra)
(from Kapp)
[35] Iacobucci J. in Lovelace perceived two possible approaches to the interpretation of s. 15(2). He believed that the
Supreme Court could either read s. 15(2) as an interpretive aid to s. 15(1) (the approach adopted in Lovelace) or read it as an
exception or exemption from the operation of s. 15(1).
[36] He favoured the interpretive aid approach, while acknowledging that the exemption approach had some support. …
Interpretive aid approach to s.15(1) vs explanatory function of 15(1)
- Or integrative approach
- Advantage of explanatory = don’t preclude people who might not be exempt (?)
o But exemption approach might keep people out of courts  (good ec. at least)
-
Claims for equality often lead to segregation
Eldridge v. British Columbia (AG) [1997] adverse effects doctrine
Facts:
- Three deaf people were not provided with free sign language interpretation in hospital, and they claimed that this
violated their equality rights.
- BC’s health legislation gave the Medical Services Commission the discretion to decide which services to insure,
and it gave hospitals the discretion to decide which services would be free.
Issues:
1. Does Charter apply to the hospitals themselves?
2. Did the absence of free sign language unconstitutionally violate equality rights? (Were the hearing impaired petitioners
offered “equal benefit of the law without discrimination” within the meaning of s. 15(1)?)
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Held:
- Yes Yes No
Reasoning:
1. La Forest J began by repeating the rule from Slaight Communications Inc. v. Davidson, [1989] 1 SCR 1038, that “since
legislatures may not enact laws that infringe the Charter, they cannot authorize or empower another person or entity
to do so.” Although hospitals are private entities, they work to implement a “specific government program or policy,”
i.e., the delivery of medical services.
2. La Forest J described two purposes of s.15. Besides the idea of human dignity emphasized by Iacobucci J in the Law
case, he added the goal of rectifying and preventing discrimination against disadvantaged groups (not necessary to
show membership in disadvantaged group, important issue is that law draws a distinction on the ground that defines
disadvantaged group)
--La Forest J followed the statements in Andrews, that a facially neutral law may be discriminatory, and that it is not
necessary for a law to have had discriminatory intent: the purpose of s. 15(1) is to offer substantive not merely formal
equality (i.e. offer equal benefit of the law without discrimination) so its purpose is still not achieved even if
discrimination is done without intent to single out a particular group
--La Forest J drew on Eaton v. Brandt County Board of Education (1997), which dealt with the application of equality rights
to disability cases—it concluded strongly that achieving substantive equality meant the accommodation of difference.
- --La Forest J disagreed with the lower courts, which had said that sign language interpretation did not have to be
provided because it was an “ancillary service.” He said that communication was integral to medical care; therefore deaf
people were being denied a benefit available to others. (i.e. deaf ppl were being denied communication with their
doctor, which others enjoyed)
- --The respondents argued that benefit programs should only be scrutinized for adverse effects discrimination when
the adverse effects might exacerbate the disparities between the group and the rest of the population. The court
rejected this, saying that the government had an obligation to make sure disadvantaged members of society could take
advantage of the benefits being given.
ON it’s face BC health legislation treated everyone the same but lack of accommodation of deaf groups makes
outcomes unequal = adverse effects discrimination (positive rights outcome)  reasonable accommodation!!!ONCE
A GOV PROVIDES A SERVICE, LIKE HEALTHCARE  THEY MUST PROVIDE IT EQUALLY
Ratio:
- Adverse effects discrimination stems not from the imposition of a burden not faced by the mainstream population
(direct discrimination) but from a failure to ensure that all people (including the groups discriminated against) benefit
equally from a service offered to everyone. (hospital / medical care in this case)
Comments:
 Eldridge v BC is example of meaning of s. 15(1) being substantive NOT formal equality
 The Eldridge case is a good example of “adverse effects” discrimination: a “facially neutral” law resulting in differential
treatment:
To what extent does differentiation lead to victimization  highlighting of differences might not always be desirable
depending on the context or the indiv
- CONTEXTUAL VS PURPOSIVE APPROACH TO CONST EQUALITY
-
- Vriend v Alberta (see further above) is also a case of adverse effects discrimination, as a result of the fact that sexual
orientation was not a prohibited grounds for discrimination in Alberta Human Rights Act; both direct discrimination (ban
from working) and adverse effects discrimination (omission).
- Both Eldridge and Vriend involved facially neutral rules that had more burdensome impact on members of a minority
group
Corbiere v. Canada (Minister of Indian and Northern Affairs [1999]
Facts:
- According to Indian Act  had to be “ordinarily resident” in order to be able to vote in band council
- Still affected them, regardless of whether could vote or not
121
Issues:
- Does this violate equality rights under s.15
Held:
- Violated s. 15 and not justifiable under s.1
Reasoning:
- Distinction in Indian Act was based on stereotype
- Criteria to identity analogous ground  various contextual factors
- Effects  historical discrimination
- Under s. 1 although restriction on voting was rationally connected to the objective of giving a voice in the affairs
of the reserve only to the persons most directly affected by the decision of the band council, it was minimally
impaired of equality rights
- Reserve and non-reserve  could perhaps relate this to gender inequality
- These historical cases are imp b/c if issue has been dealt w/ historically  can use this to establish recognized ground or
analogous ground
6. Minority Language Rights (s. 23)
-Language rights are very important in Canada as a result of the historical French-English tension. However, sections 91 and
92 do not assign administration of language-related issues to a specific level of government, so it is treated as an ancilliary
sphere over which both levels of government have some control. Language is not a ground listed in section 15, although it
may be analogous. The most important provisions relating to language in the constitution are in s133 (the right to use either
official language in court and in parliament) and in the Charter between ss16 and 23, the latter being the right to minority
language education.
- often divisive nature of dif.
- note how eng and fr. are treated in their respective provs of minority
Issue
- Whether/to what extent should lang rights be symmetrical the way our law is framed symmetrically
o Arg that sit is dif btwn Eng and Fr communities b/c Eng community in Quebec b/c is sustained by rest of
country and also b/c Eng community in Quebec usually associated w/ ec. successs/business etc
 This is not the same for French minorities in other provs
 So ec. impetus for assimilation
BRAEN , “Language Rights”
 The British government’s 18th-century treaties, acts, proclamations, etc. did not address language, but functional
bilingualism began almost immediately after the conquest of Quebec.
 The Act of Union, 1840 made English the single official language, but official bilingualism was restored by the United
Parliament in 1848.
 Inspired by the Laurendeau-Dunton report, New Brunswick adopted official bilingualism in 1968, and the Canadian
Parliament adopted the Official Languages Act in 1969.
- In 1977, Quebec introduced the French Language Charter, making French the only official language of legislation, of the administration of justice and of public administration, but court challenges have somewhat reduced the scope of this law.
COULOMBE, Language Rights in French Canada
 Quebec and other Canadian francophone communities needs strong laws to protect the French language, because there
is a real danger of assimilation. Anglophones who see these laws as attacks on individual human rights fail to understand
that market forces benefit the powerful. The state must intervene to protect the vulnerable from market forces of
language just as it must intervene to protect social welfare or the environment.
 A minimum concept of language rights can be called “negative language rights”: not interfering with people’s right to
use the language of their choice, and not discriminating on the basis of language.
- Coulombe is arguing instead for a positive form of state language planning in Quebec. He points to the fact that English
has historically been seen as the language of prestige, to the demographic decline of French Quebeckers, the high rate of
emigration from Quebec, and the tendencies of immigrants to learn English rather than French (although he acknowledges
122
that this is changing).
- ***IMP OF ASYMMETRICAL LANG PROTECTION!
Bilingualism in Constitutional Statutes

s.133 of CA1867 mandated bilingualism for Parliament, the Quebec legislature and the Quebec courts. This section
did not propose the “symmetry” later found in the constitution: there was no insistence on the use of French
outside Quebec.
 Some other consititutional statutes provided for institutional bilingualism along the lines of s.133, such as the
Manitoba Act, 1870.
 In 1877, the Canadian Parliament instituted bilingualism in the Northwest Territories, but this Northwest Territories
Act did not have constitutional status. Bilingualism in the Northwest Territories was repealed in1892
Bilingualism in the Charter



ss.16-23 of the Charter deal with language rights.
o s.16 makes English and French official languages, equal in status and use in Canadian government
institutions.
o s.16.1, added enacted in 1993, consititutionalized bilingualism in New Brunswick, including educational and
cultural institutions
s.23 of CA1982 covers minority language education rights.
o These apply to all provinces, except s.23(1)(a), which does not apply to Quebec.
o s.23(1)(a) is only for citizens of Canada (including immigrants): if their first language learned and understood
was that of the English or French minority language of the province in which they reside.
 As a result of a political compromise, this not in force in Quebec.
o s.23(1)(b) is also for citizens of Canada, but only those whose primary school was in Canada and was in the
English or French minority language of the province in which they reside.
o s.23(2) gives parents who have had one child instructed in a minority language the right to have their other
children educated in the same language.
o s.23(3) says that s.23(1) and (2) apply wherever numbers warrant, and include the right to public funding.
You have to be sufficiently non-assimilated in order to get access to this right. They’re collective rights that
impose positive obligations on the State. They are very historically and nationally specific to the Canadian
context.
The “symmetry” of ss.16-23 is problematic:
o Anglophones in Quebec are not a vulnerable minority, threatened with assimilation, as are francophones in
other provinces.
o In Quebec, language divisions also have class dimensions.
o The majority in Quebec is a minority in the country, on the continent, and in all nine of the other provinces.
o The “symmetry” also promotes the idea of two founding nations/communities, ignoring the special role of
Aboriginal peoples. (This is one of the reasons the Meech Lake accord was blocked.)
Mahe v. Alberta [1990]
Facts:
- A group of Edmonton francophone parents claimed that s.23(3)(b)’s reference to “minority language educational
facilities” required a separate school board.
Issues:
- 1. Do s.23 rights include a right to management and control of a school board, given sufficient numbers?
- 2. Are the numbers in Edmonton sufficient for this?
Held:
- Yes
- NO
Reasoning:
1. This was the SCC’s first major interpretaton of s.23. Characteristically, Dickson CJC set out a test including
considerations of purpose and context.
123
Purpose: to promote and preserve the two official languages and their respective cultures. (Dickson CJC emphasizes the
link between language and culture.)
Dickson CJC also mentions a second, remedial purpose: remedying the historical problem of the erosion of minority
language rights. Group rights which place positive obligations on government (top of p.1242)
Dickson CJC here casts doubt on earlier, narrower interpretations of language rights by Beetz J.
Context: Dickson CJC said that s.23 should be interpreted as a general right to minority language instruction, (BROAD
INTERPRETATION) qualified by minimum numbers requirements. He supports a “sliding scale” approach. Depending on
numbers, s.23 would justify separate classes, separate schools, representation on a school board, or a whole separate
school board.
The right to receive minority language instruction depends on you being in a community with other people with the same
right.
Dickson CJC refrained from attaching numbers to the sliding scale, but he described in detail situations where minorities
should have special representation on majority-language school boards.
2. [not important for this summary]
Ratio:
Comments:
Ford v. Quebec (AG) [1988]
Facts:
- Ford challenged the sections of Quebec’s language laws dealing with business signs, on the basis of s.2(b): freedom of
expression.
Issues:
- 1. Does freedom of expression include the right to express oneself in the language of one’s choice?
- 2. If so, would such a violation be justified under s.1?
Held:
- Yes
- NO
Reasoning:
- 1. “Language is so intimately related to the form and content of expression that there cannot be true freedom of
expression by means of language if one is prohibited from using the language of one’s choice.” One can’t separate the
message from the medium. This fact is supported by the Quebec Language Charter itself. The court made a distinction
between language rights (in ss.16-23) and language freedoms (which are not really covered in the Constitution), pointing
out that the issue in this case was a language freedom.
- 2. In its s.1 analysis, the court recognized that the French language is vulnerable and that preservation is a pressing and
substantial objective. The court also recognized the importance of language in the public domain. However, it found that
the exclusive use of French was not necessary; a simple predominance of French would be a more proportionate measure.
Oakes test?
-
challenge to Bill 100  even signs were to be ONLY in French
it was 1988, the override provision they had enacted had expired does it violate s. 2(b) is it justified under s. 1
(reas limits  purpose ok but not means
Comments:
Quebec protected its legislation using s.33; later, it amended the legislation to permit English as long as French is
predominant (an example of dialogue).
Quebec anglophones challenged the law to the UN Human Rights Committee, and succeeded in part.
- it’s a challenge to think of how to protect collective rights in Can  easier to protect rights of indiv
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7. Remedies (s. 24 of Charter and s. 52(1) of Const)
- Where you don’t want legislation struck down, you go for a remedy  when gov isn’t fulfilling it’s const obligation (see
below Doucet-Boudreau)
- When you make a const challenge you have to specify what section you’re dealing w/ and what remedy you want
-
Sends message that rights w/out remedies are hollow
o Rights define remedies
o How do you ensure rights and freedoms in Charter aren’t hollow
o S. 24 tailored indiv remedies
Remedies for Lang
Doucet –Boudreau v. Nova Scotia (Minister of Education) [2003]
Facts:
- francophone minority in Nova Scotia did not have secondary schools in their language; although numbers warranted
it, and s. 23 of the Charter dictated it,
- the province was dragging its feet in establishing secondary schools; community went to court over it
Issues:
(for purposes of this topic) Was injunction obligating Ministry of Education to fulfill its obligations a proper remedy? Was
order to report progress on the issue to the Court a proper remedy?
Held:
- Yes. No, but case outlines test for what IS appropriate as a remedy.
Reasoning:
: 1) it is written in the Constitution (s. 23 Charter) that government must set up minority schools and there was failure to
do so, therefore Court declaration that government must fulfill its obligation is proper.
2) Court of Appeal: Declaration that government had to report progress to the Court (retention of jurisdiction over the
matter by the Court after the trial) is against separation of powers doctrine and doctrine that judge has no more authority
over case once makes judgement.
 definition of what appropriate remedy should be: court should provide remedy that:
i.
meaningfully vindicates rights of the claimants
ii.
is done by means that are legitimate in the framework of constitutional democracy
iii.
vindicates right within the court’s institutional competence (i.e. respects separation of powers idea)
iv.
is fair towards party against whom it is given
v.
is chosen keeping in mind that novel and creative remedies are sometimes necessary to ensure
appropriate vindication
Shep highlights the following segment of the case:
(3) The Meaning of “Appropriate and Just in the Circumstances”
52
What, then, is meant in s. 24(1) by the words “appropriate and just in the circumstances”? Clearly, the task of
giving these words meaning in particular cases will fall to the courts ordering the remedies since s. 24(1) specifies that the remedy
should be such as the court considers appropriate and just. Deciding on an appropriate and just remedy in particular circumstances calls
on the judge to exercise a discretion based on his or her careful perception of the nature of the right and of the infringement, the facts of
the case, and the application of the relevant legal principles. Once again, we emphasize McIntyre J.’s words in Mills, supra, at p. 965:
It is difficult to imagine language which could give the court a wider and less fettered discretion. It is impossible to reduce
this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to
pre-empt or cut down this wide discretion.
53
With respect, the approach to s. 24 reflected in the reasons of LeBel and Deschamps JJ. would tend to pre-empt and
reduce this wide discretion. Their approach would also, in this case, pre-empt and devalue the constitutional promise respecting
125
language rights in s. 23. In our view, judicial restraint and metaphors such as “dialogue” must not be elevated to the level of strict
constitutional rules to which the words of s. 24 can be subordinated. The same may be said of common law procedural principles such
as functus officio which may to some extent be incorporated in statutes. Rather, as LeBel and Deschamps JJ. appear to recognize at
paras. 135 and following, there are situations in which our Constitution requires special remedies to secure the very order it envisages.
54
While it would be unwise at this point to attempt to define, in detail, the words “appropriate and just” or to draw a
rigid distinction between the two terms, there are some broad considerations that judges should bear in mind when evaluating the
appropriateness and justice of a potential remedy. These general principles may be informed by jurisprudence relating to remedies
outside the Charter context, such as cases discussing the doctrine of functus and overly vague remedies, although, as we have said, that
jurisprudence does not apply strictly to orders made under s. 24(1).
55
First, an appropriate and just remedy in the circumstances of a Charter claim is one that meaningfully vindicates the
rights and freedoms of the claimants. Naturally, this will take account of the nature of the right that has been violated and the situation
of the claimant. A meaningful remedy must be relevant to the experience of the claimant and must address the circumstances in which
the right was infringed or denied. An ineffective remedy, or one which was “smothered in procedural delays and difficulties”, is not a
meaningful vindication of the right and therefore not appropriate and just (see Dunedin, supra, at para. 20, McLachlin C.J. citing Mills,
supra, at p. 882, per Lamer J. (as he then was)).
56
Second, an appropriate and just remedy must employ means that are legitimate within the framework of our
constitutional democracy. As discussed above, a court ordering a Charter remedy must strive to respect the relationships with and
separation of functions among the legislature, the executive and the judiciary. This is not to say that there is a bright line separating
these functions in all cases. A remedy may be appropriate and just notwithstanding that it might touch on functions that are principally
assigned to the executive. The essential point is that the courts must not, in making orders under s. 24(1), depart unduly or
unnecessarily from their role of adjudicating disputes and granting remedies that address the matter of those disputes.
57
Third, an appropriate and just remedy is a judicial one which vindicates the right while invoking the function and
powers of a court. It will not be appropriate for a court to leap into the kinds of decisions and functions for which its design and
expertise are manifestly unsuited. The capacities and competence of courts can be inferred, in part, from the tasks with which they are
normally charged and for which they have developed procedures and precedent.
58
Fourth, an appropriate and just remedy is one that, after ensuring that the right of the claimant is fully vindicated, is
also fair to the party against whom the order is made. The remedy should not impose substantial hardships that are unrelated to securing
the right.
59
Finally, it must be remembered that s. 24 is part of a constitutional scheme for the vindication of fundamental rights
and freedoms enshrined in the Charter. As such, s. 24, because of its broad language and the myriad of roles it may play in cases,
should be allowed to evolve to meet the challenges and circumstances of those cases. That evolution may require novel and creative
features when compared to traditional and historical remedial practice because tradition and history cannot be barriers to what reasoned
and compelling notions of appropriate and just remedies demand. In short, the judicial approach to remedies must remain flexible and
responsive to the needs of a given case.
Ratio:
In choosing a remedy, courts must be aware and respect separation of powers issues, and provide a full remedy, so that
the claimants’ rights are ensured and that this is done with as little interference in the legislative sphere as possible.
--explicit Charter provision for enforcement of freedoms: s. 24:
s. 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court
of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
--also s. 52(1): supremacy clause:
s. 52 (1): The Constitution of Canada is the supreme law of Canada and any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no force or effect.
Distinctions
126





Unlike s.52(1), s.24(1) appears to give the courts wide discretion.
s.24(1) is only for Charter rights, while s.52(1) is for all constitutional issues.
s.24(1) is used when the court is not actually striking down the law in question. It is more of a declaration, can in
some instances involve an injunction, or damages.
In some cases, such as Morgentaler, the person bringing the challenge is not the one affected by the law, so s.24(1)
wouldn’t help.
Changing the way the government administers a law (e.g., Little Sisters, Eldridge) is a s.24 remedy.
MAIN RULES FOR REMEDIES:
 s. 52 remedies: available where LAWS’ constitutionality is being challenged (substantive?)
 s. 24: available where Charter infringement is result of the way laws are being implemented (procedural?)
--main issue: large degree of discretion involved in choice of constitutional remedies: which factors should influence it?:
KENT ROACH Constitutional Remedies in Canada (CB 1264)
- Debates about remedies reflect debates about the legitimacy of judicial review and the attempt to balance interests
affected by remedies with respect for appropriate institutional roles. Kent Roach identifies two main theories:

1) A corrective theory of remedies sees only a limited role for courts: repairing harm caused by
government’s proven violations of rights.

2)In a “regulating government behaviour” theory, courts can design remedies to achieve compliance with
the constitution in the future, not just to repair past wrongs. They can use all of their powers to order
remedies that may not be directly connected to proven violations, and to balance all of the interests
affected by the remedy.
- It seems like a paradox that, in the name of judicial restraint, courts have been so shy about reading in new provisions
that they’d rather strike down entire laws instead of saving it by reading in terms or granting constitutional exemptions.
-main issue: separation of powers: judges must respect separation of judicial and legislative powers
1) Remedies under S. 52(1) of the Constitution Act 1982:
--first comprehensive treatment of remedial issues raised by Charter:
Schachter v. Canada [2002]
Facts:
- The federal Unemployment Insurance Act provided new mothers with 15 weeks of coverage for maternity leave and
adoptive parents with 15 weeks of parental leave, to be divided between the parents as they chose.
- Schacter argued that the denial of paternity benefits discriminated in favour of adoptive parents and against natural
fathers.
Issues:
- 1. Did the differential treatment violate s.15 equality rights?
- 2. What kind of remedy should the court grant?
Held:
- 1. Yes.
- 2. The court would have struck down the provision but suspended the invalidity, but in this case there was no need to do
so because Parliament had already amended the legislation.
Reasoning:
1. [not important for this summary—only went to SCC on issue of remedies]
2. Lamer CJC undertook a general discussion of remedies. Among his various points:
 The fact that reading down is more common in Charter cases than federalism cases makes sense: rights violations are
often the result of particular provisions, whereas division of powers issues usually concern the legislation as a whole.
 The test for reading down should be whether the legislature would still have passed the legislation without the
impugned provision.
 The same basic test should be used for reading in, where the solution is to include something or someone that the
statute unconstitutionally excluded.
 It would be absurd to say that reading in could never be used, because this would make everything depend on
127
syntax—whether an inclusive or exclusive phrasing was used.
 The use of reading in and reading down should be guided by two principles:
 respect for the role of the legislature
 respect for the purposes of the Charter
 It would be especially absurd not to allow reading in in benefits cases; otherwise the court would have to
strike down legislation designed to provide benefits to some, rather than extending them to all.
 When applying s.52, courts should:
1. define the extent of the inconsistency (including using the Oakes test)
2. decide whether severance or reading in is appropriate, depending on:
 remedial precision
 interference with the legislative objective
 This includes budgetary considerations, although budgetary considerations cannot be used to justify a
law under s.1.
 the change in significance of the remaining portion
 In benefits cases, this includes the relative size of the group to be added vis-à-vis those already
included.
 the significance or longstanding nature of the remaining portion
3. decide whether to temporarily suspend the declaration of invalidity
 **This is especially appropriate if striking down the law would pose a danger to the public or to the rule of
law.
 It may also be appropriate in cases of underinclusive benefits, where the government should be allowed
to decide whether to extend the benefits to all or cancel them altogether.
 Lamer CJC emphasizes that delaying invalidity may be more intrusive on legislatures, not less, because it
forces an issue onto the legislative agenda, forcing the legislature to act.
 Applying this logic to the case, Lamer CJC held that in cases of positive rights (such as this one) reading in/reading
down and suspensions of invalidity were more likely to apply than an immediate striking down of the legislation.
s.1 analysis is important for remedies: reason it fails s.1 is often relevant to determining remedy
Comments:
 This was a strange case; Schacter won on equality grounds at lower court levels, and the case only went to the SCC on
the issue of remedies. Because Parliament amended the legislation in the meantime (allowing 10 weeks for everyone),
Schacter didn’t get any special remedy (like damages); however, he did get costs.
- Schacter was smart to use adoptive fathers rather than natural mothers as his reference point!
Possible remedies under s. 52(1)
1) striking down the law to the extent of the inconsistency with the Constitution:
a) Total invalidity: problem: in case of underinclusive law, striking down the law means depriving those
covered without extending benefits to those who were not covered
 when are able to, courts prefer to go for more limited remedies that will save permissible applications of the law while
excluding those that are impermissible: severance, reading down, constitutional exemptions, temporary suspension of
invalidity
b) Partial invalidity (severance): limited remedy that is less intrusive into the sphere of the legislature; respects
the separation of powers more
 federalism remedy: partial invalidation of the law (see Margarine Reference); used to preserve parts of the law that do
not violate Charter
2) reading in: where there is nothing that can be struck out to fix inequality, but there is something missing that is causing
inequality which needs to be read in
 used in situations of underinclusive laws (i.e. in Vriend), courts interpret a narrow law more broadly, by, for example,
implying more categories in the meaning of the law (i.e. Philips: single mothers means not only single mothers but single
parents, thus including single fathers in the benefits scheme)
128
 Vriend and M v H: illustrate different remedial responses to underinclusive laws through application of factors laid out
in Schachter:
Vriend v. Alberta [1998]
Facts:
- religious college employee gets fired when his homosexuality is found out;
- Alberta HR legislation omits sexual orientation from list of prohibited grounds for discrimination
Issues:
- Should sexual orientation be read into the IRPA (Alberta HR legislation) as a prohibited ground for discrimination?
Held:
- yes
Reasoning:
 Iacobucci J applied the Schacter test in the Vriend case (1998) (CBp.1277), including summarizing it along these lines:
 Writing on behalf of the majority in Schachter, Lamer C.J. stated that the first step in selecting a remedial course
under s. 52 is to define the extent of the Charter inconsistency which must be struck down….Once the Charter
inconsistency has been identified, the next step is to determine which remedy is appropriate. In Schachter, this
Court noted that, depending upon the circumstances, there are several remedial options available to a court in
dealing with a Charter violation that was not saved by s. 1. These include striking down the legislation,
severance of the offending sections, striking down or severance with a temporary suspension of the declaration
of invalidity, reading down, and reading provisions into the legislation….Lamer C.J. noted that when determining
whether the remedy of reading in is appropriate, courts must have regard to the "twin guiding principles",
namely, respect for the role of the legislature and respect for the purposes of the Charter…. Lamer C.J. noted
that the twin guiding principles can only be fulfilled if due consideration is given to several additional criteria
which further inform the determination as to whether the remedy of reading in is appropriate. These include:
remedial precision (details about what is read in should not preclude the reading in since legislature can always
intervene on matters of detail not dictated by Constitution)
budgetary implications (must be substantial to preclude reading in of a prohibited ground)
effects on the thrust of the legislation (if reading in does not affect legislation to substantial degree, can read in under
the assumption that legislature would have enacted provision anyway)
interference with legislative objectives (but Charter scrutiny will always involve SOME interference with the legislative
will).
cannot excuse government violation for underinclusion if government does so in a deliberate manner because that
would put too much power into legislature’s hands, negating balance between the role and power of legislature and the
role of the Constitution; any such intentional violation shall be read as an attempt to defer to the courts
Major J: dissent
-it is the legislature’s job to enact changes to legislation to make it compliant with Constitutional requirements, not the
Court’s
-feels suspension of declaration of invalidity is a better remedy than reading sexual orientation in, because this would
give time to legislature to adjust the statute, accomplishing BOTH the purpose of the Charter and not interfering with
role of legislature (twin guiding principles from Schachter)
Ratio:
There are certain factors that guide if a specific remedy should be used, and the analysis of which remedy to apply must
be done in concordance with the twin guiding principles established in Schachter: respect for purposes of Charter and
respect for role of legislature.
Two sections of CA1982 direct courts toward giving remedies:
A. s.52: the “supremacy clause,” which can be used to read down or strike down laws, etc. There are six options for s.52(1)
remedies:
1. Total Invalidity – declaring the entire law invalid, usually when the purpose of the legislation is
inconsistent with the Charter (e.g., Big M). Pretty rare.
2. Partial Invalidity/Severance – strike down only section of legislation that is invalid, leave the rest intact
129
(e.g., Morgentaler).
3. Reading in/Extension – Adding to what is actually written in the legislation (e.g., Vriend read in sexual
orientation). Controversial because giving discretion to judges: ‘legislative re-writing’.
4. Temporary Suspension of Invalidity of the declaration – Can be partial or total invalidity. (Rule of law,
protecting those who rely on those rights; Judicial deference)
5. Reading down – Unlike severance, this just changes the interpretation, not the actual words. This has a
parallel in the interjurisdictional immunity doctrine in federalism cases (e.g., Butler)
6. Constitutional Exemptions from applicability of the law – Under both s. 52 and s. 24(1).
B. s.24(1) of the Charter allows individuals whose rights have been infringed to look ask courts for any remedy considered
“appropriate and just in the circumstances,” incl. injunctions or damages. This has huge implications for standing
130
131
Canadian Charter of Rights and FreedomsConstitutional Law Problems
Framework of Analysis
A.
PRELIMINARY ISSUES: STATE ACTION DOCTRINE & STANDING
 Governmental Action
 Governmental Actor? s. 32
o Criteria for defining what is a government actor?
 Receiving gov. funding?
 Carrying out a public function?
 Set up/created by Statute No independent governing structure (statutory
framework)? but then corporations only exist when incorporated out of
statute (so??)
 Controlled by government? [key criteria]
 Engaged in gov.-type activities  esp. relates to municipality controlled
activities so Charter issues can be raised even though they aren’t prov/fed
b/c still carrying out gov. activities
 Governmental Acts?
o Criteria for defining:
 Private entities acting in furtherance to a specific government policy or
programme
 Must be implementing a specific governmental policy or
program
 (((Standing?)))
B.
IDENTIFY KEY CHARTER RIGHTS OR FREEDOMS AT ISSUE



FUNDAMENTAL FREEDOMS S.2 (RELIGION, EXPRESSION)
i. s. 2(a) RELIGION
1. TEST
a. DEF’N OF RELIGION  SEE BIG M, ED BOOK
i. SINCERE BELIEF IN ACTIONS ETC  MULTANI, AMSELEM
ii. S.2 (b) EXPRESSION
1. TEST (IRWIN TOY)
a. EXPRESSING?
b. PROHIBITED?
i. DIRECTLY
ii. INDIRECTLY
LIFE, LIBERTY AND SECURITY OF THE PERSON s. 7
i. TEST
1. 2 pronged inquiry  is there an interference related to or deprivation of:
a. 1) Security of the person, and liberty (life in rare cases)
b. 2) Fundamental justice (procedural preferred because it is less intrusive for courts
to intervene + substantial  the law itself) (NOTE THAT THIS IS AN INTERNAL
LIMIT WHICH MEANS THAT S.1 IS RARELY USED)
EQUALITY s. 15
i. TEST (LAW, KAPP, ANDREWS)
1. OBJECTIVE AND SUBJECTIVE TEST
a. DISCRIMINATION?
i. DIRECT
ii. OR ADVERSE EFFECTS
132

C.
WITH RESPECT TO EACH CHARTER RIGHT OR FREEDOM:


D.
b. ENUMERATED AND ANALOGOUS GROUNDS
2. 4 FACTORS FROM KAPP
a. PRE-EXISTING DISADVANTAGE AND NATURE OF INTEREST AFFECTED
b. STEREOTYPING
c. AMELIORATIVE PURPOSE?
d. NATURE OF INTEREST AFFECTED
MINORITY LANGUAGE EDUCATION RIGHTS s. 23
DEFINITION OF RIGHT OR FREEDOM AS ELABORATED IN LEADING SCC JURISPRUDENCE
APPLICATION TO ALLEGED VIOLATION AND FACTS OF THE PROBLEM
SECTION 1 – REASONABLE LIMITS ANALYSIS (GOV HAS THE BURDEN OF PROOF)
o If impugned law or government action limits or violates a substantive right THEN ask CAN IT BE JUSTIFED
UNDER S.1

PRESCRIBED BY LAW? (IT’S PRESCRIBED IF NOT OPERATING OUTSIDE THE REALMS) (INCLUDES RULE OF LAW DISCUSSION)
JUSTIFIED IN A FREE AND DEMOCRATIC SOCIETY? (ALSO SEE THERRENS)


This means that, to the average citizen, the law must be
o (a) accessible and
o (b) intelligible (circumstances, consequences, etc.) (Sunday Times v. United
Kingdom [1979] Cb 748). This requirement ensures public accountability for any
restriction on a constitutional right (rule of law).
 FOR VAGUENESS SEE NOVA SCOTIA PHARMACEUTICAL
OAKES TEST

ASSESS OBJECTIVE  IS IT PRESSING AND SUBSTANTIAL (SUBSTANTIVE) (ALSO INCLUDES ITS STATED AND
ACTUAL PURPOSE  REMINISCENT OF P&S)

MEANS/PROPORTIONALITY TEST/SUBJECTIVE ASSESSMENT
o
o
o
IS OBJECTIVE RATIONALLY CONNECTED TO THE MEANS
IS THERE MINIMAL IMPAIRMENT OF THE RIGHT
BALANCE DELETERIOUS AND SALUTARY EFFECTS OF LIMITATION (BALANCE BTW NEGATIVE EFFECTS
AND THE OBJECTIVE)
E.
REMEDIES S. 24, S. 52
133
VIII.
The Constitutional Entrenchment of Aboriginal Rights
1. The Constitutional Entrenchment of Aboriginal Rights
Ab Rights vs Ab Title
- Ab title
o Subcat to Ab Rights
o developed as judge made doctrine (as CML developed)
o Linked to territory and arises when Ab groups can show they occupied land for time immemorial = “sui
generis” land title
- Const doesn’t bring back right s extinguished by the Indian Act
o Notion that gov could legislate away title/rights by statute
2 characteristics that made Aboriginal title sui generis (key features of judgment):
(1) Inalienability except to the Crown and untransferable to 3rd party
(2) Surrender to Crown creates fiduciary obligation, so Crown must deal w/ surrendered land in best interest of
Aboriginal peoples concerned.
Delgamuukw [1997]  Lamer CJ elaborated on Aboriginal titles as one manifestation of a broader-based conception of
Aboriginal rights, that arises from significant connection w/ a piece of land; whereas Aboriginal right is a distinctive practice,
custom or tradition not connected to specific location or land.
o Exclusive use/occupation of land provided that use isn’t incompatible with Ab title
Extinguishment of right
- Notion that gov could legislate away title/rights by statute  Const doesn’t bring back extinguished rights
- Prior to 1982  no const protection of Ab rights so could be extinguished as were subject to doctrine of parliamentary
sovereignty
- 1982  Constitutional Status of Aboriginal Rights  s.35 unilateral extinguishment can’t continue (Parliament can’t
abrogate or derogate Ab Right, even through statute)
o Although can’t un-extinguish rights that were extinguished?  but narrow this application?
- Rights will now be recognized and affirmed
- Also s.35 not subject to limitation under s.1 nor to the notwithstanding clase (s.33)
Sparrow  question of whether or not Fishing Act extinguished rights to longer fishing nets
R v. Sparrow [1990]
Facts:
- Sparrow, a member of the Musqueam band, was charged under s.61(1) of the Fisheries Act for fishing with a drift net
that exceeded regulation length.
Sparrow was fishing for personal use.
- Sparrow argued that he was exercising an existing aboriginal right to fish and that the net length restriction was
inconsistent with s.35(1) of CA1982 and therefore invalid.
Issues:
- Were the fishing net regulations inconsistent with Aboriginal rights?
Held:
- There wasn’t enough evi  new trial ordered
Reasoning:
Dickson CJC and La Forest J wrote jointly, setting out a framework for interpretation.
Defining (a) “existence” and (b) the scope of the Musqueam right to fish.
(a) Rejection of frozen rights and adoption of a flexible definition. Takes a flexible interpretation (// ‘unextinguished’)
to permit evolution over time. Rejects idea that it means that rights must have existed when CA1982 came into
134
effect: too restrictive and forms a ‘patchwork quilt’ of different nations.
(b) The Musqueam right to fish has always existed and has not been extinguished. Evidence shows that 1) the
Musqueam lived in the area before the settlers arrived, and 2) fishing has always been an integral part of their lives.
The question is whether the right had been extinguished by regulations under the Fisheries Act.
 Test of extinguishment: “the Sovereign’s intention must be clear and plain if it is to extinguish an aboriginal
right”. Not clear in this case.
Defining “recognized and affirmed” and the impact of s.35(1) on the regulatory power of Parliament
s.35(1) should b construed in a purposive and be given a generous and liberal interpretation. s.35(1) is not subject to
s.1 of the CA1982, but these rights are not absolute (e.g., may be limited by conservation).
Parliament must embrace the fiduciary relationship created [honour at stake]
Doubt or ambiguity must be resolved in favour of aboriginal peoples (R. v. Sutherland)
See test for prima facie interference w/ an existing aboriginal right below.
Comments:
- This was the SCC’s first major case on the interpretation of s.35(1).
- Note though the colonial mentality continued w/ continuation of terra nullius
- Also notion that gov should act more in a fiduciary manner (like a trust sit) rather than adversarial  but to what extent
can you have this type of relationship btw equals
Test for deciding whether something is an Ab right or not
THE SPARROW TEST
1) Claimant must demonstrate s/he was acting pursuant to s.35 protected right. Two elements:
(A) What, precisely, is the nature of the claim being made?  this means the nature of:
(i) the particular activities,
(ii) the impugned govt regulations; and,
(iii) the custom or tradition being relied on
(B) Is it based on practice, custom or tradition integral to distinctive culture of Aboriginal ppl claiming right?
2) Determine whether right in qn was ‘existing right’  ie. right that hasn’t been extinguished prior to 1982
3) Has there been infringement of protected aboriginal right?
 such infringements generally found where regulation in question significantyl burdens preferred mode or manner of
exercise of protected right.
4) If yes, can the infringement be justified?  bc Aboriginal and Treaty rights are not absolute
(i) law must have “compelling and substantive objective”
(ii) is infringement unduly restrictive? Can it be accomodated under Crown’s fiduciary relationship w/ Aboriginals?
o note how closel this test mirrors Oakes test
Turning point  gov decided to begin comprehensive treaty negotiations where there had never been treaties
Calder v. BC (AG) [1973]  Changed views on origins of aboriginal rights. Held that Aboriginal title was a legal right
derived from Aboriginal ppl’s historic occupation of lands- not just result of Royal Proclamation
o But had to give land rights in exchange for claims to land????
Priorities shift where it is suggested that commercial fishing won’t necessarily trump non-Ab commercial fairness  also
issue of regional discrimination
R v. Gladstone [1996]
Facts:
- Gladstone was a member of the Heiltsuk band; he was charged for attempting to sell herring spawn on kelp without a
proper licence.
Issues:
1. Did members of the Heiltsuk have an Aboriginal right to sell herring spawn on kelp?
2. Was the restriction on this right justified?
Held:
- Yes
135
- Unclear, new trial needed
Reasoning:
1. Lamer CJC applied the test in Van der Peet, and found that the sale of herring spawn on kelp was a distinctive feature of
Heiltsuk society.
- 2. Lamer CJC held that there wasn’t enough evidence to determine whether an infringement had been justified. He
recognized (in the abstract) the overwhelming importance of conservation, both to Aboriginal groups and to Canada as
a whole. He went on to say that, once conservation goals had been met, various other criteria could justify infringement
of Aboriginal rights, such as “economic and regional fairness” and the historical fishing practices of non-Aboriginal
groups.
Comments:
Revises and adapts Sparrow test.
“Objectives such as the pursuit of economic and regional farness, and the recognition of the historical reliance upon, and
participation in, the fishery by non-aboriginal groups, are the type of objectives which can (at least in the right
circumstances) satisfy the standard. In the right circumstances, such objectives are in the interest of all Canadians and,
more importantly, the reconciliation of aboriginal societies with the rest of Canadian socieity may well depend on their
successful attainment” (568).
o Another option is to claim Ab rights under s.15
Test for prima facie interference w/ an existing aboriginal right (R. v. Sparrow, Cb 541)
(1) Does the legislation in question interfere with the existing right? If yes, infringement on s.35(1), go to next step.
Is the limitation unreasonable?
Does the regulation impose undue hardship?
Does the regulation deny the holders of the right thir preferred means of exercising that right?
(2) If yes, is the interfringement justified?
Is there a valid legislative objective? [valid if “necessary for the proper management and conservation of the resource or in
the public intrest”]
Is the Crown respecting its fiduciary duty to aboriginals?
Van Der Peet [1996]  Lamer CJ set out general theory of legal sources and nature of Aboriginal rights. Also made
distinction that Aboriginal title is exclusive right to occupy and use land and subcategory of Aboriginal rights
R v. Van der Peet [1996]
Facts:
- Van der Peet. a member of the Sto:lo, was charged under s.61(1) of Fisheries Act for selling salmon she had caught
under an Indian food fish licence, which only allowed the fishing of salmon for food.
Fishing for commercial purposes [exchange dimension]. V argues infringement on s.35(1).
Issues:
- Were the restrictions on trading salmon inconsistent with Aboriginal rights?
Held:
- No
Reasoning:
Lamer CJC enters into a purposive analysis of s.35(1)
Declaration that Aboriginal rights were justified by the fact that Aboriginal peoples were here first, not by the
recognition of these rights in European or Canadian law. He emphasized that s.35(1) should be interpreted in
light of the fiduciary relationship, which means that ambiguities must be resolved in favour of Aboriginal peoples.
[separates status of aboriginals from other minorities]
Test for defining Aboriginal rights: “…in order to be an aboriginal right an activity must be an element of a practice,
custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.” See test below.
136
Lamer CJC held that Van der Peet did not have an aboriginal right to sell fish, because the exchange of fish was not a
distinctive part of Sto:lo culture; it was just “incidental” to other aspects of Sto:lo culture.
L’Heureux-Dubé J, dissenting, took an “abstract” approach (more liberal) that emphasizes significance of activity to natives
rather than focusing on the particular practice, custom or tradition in question.
 “all practices, traditions and customs which are connected enough to the self-identity… of aboriginal societies
should be viewed as deserving the protection of s.35(1)”.
 s.35(1) does not protect “a catalogue of individualized practices, traditions or customs”; it protects Aboriginal
cultures as a whole.
 Opted for a dynamic rights approach (permitting evolution) rather than Lamer’s frozen rights one (overstates
impact of Europeans, creates an arbitrary date, unfair burden on natives).
McLachlin J, dissenting, argued that the law has historically recognized Aboriginals’ right to sustain themselves from the
land and waters, and to trade as far as necessary to sustain themselves. She argued that ancestral rights may be exercised
in modern forms. Takes a dynamic approach re: exercise of right.
Comments:
Case defines what is an aboriginal right
Sheppard: Lamer’s judgment can be taken as the current state of the law.
Would self-government be an Aboriginal right under s.35(1)? Prof. Sheppard thinks that the Van der Peet test would
uphold the right to self-government. But there would still be an issue of defining the scope of self-government.
Shep comments that THIS CASE PROVIDES A FRAMEWORK FOR RECONCIALTION BUT NOTION OF REMEDYING (of abuses
during period of colonization) IS MISSING HERE  WHEREAS SPARROW HAS SOME DISCUSSION OF REMEDIAL RIGHT
NOTHING IN VAN DER PEET
- She also draws a link to Mahe case  role of s.23 as remedial provision to alter status quo  correcting erosion of
minority lang
Distinctive Culture Test (R. v. Van der Peet, Cb 550)
Defines what is an aboriginal right.
“…in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the
distinctive culture of the aboriginal group claiming the right.”
Courts must:
- Consider perspective of aboriginal people themselves (but “…the perspective must be framed in terms cognizable to the
Canadian legal and constitutional structure”).
- **Identify precise nature of the claim to determine if right existed
- **Assess whether the custom/practice/tradition is of central significance to the aboriginal society in question (Would
the culture be fundamentally altered without this practice?)
- **Ensure that the practices in question have continuity with practices existing prior to contact. NB: May be modern
form of practice.  so no frozen rights perspective  NB: Interruption is allowed
- **Approach rules of evidence in light of evidentiary difficulties inherent in adjudicating aboriginal claims
- **Accept claims on a specific case-by-case basis, rather than a general one.
- Ensure that practice is of independent significance to the aboriginal culture in which it exists (not incidental)
- Ensure that the practice is distinctive, not distinct.
- Look only at influence of European culture if it has influenced the distinctiveness of the practice
- Take into account the relationship of aboriginal peoples to land and the distinctive societies of aboriginals
Sheppard highlights focus on negative rights  and also asks what about new practices? esp since test does state that it
isn’t enforcing frozen rights perspective
137
Think about what else you could relate Ab rights to  religious rights etc
Note Court’s concern w/ floodgates  so imp of limiting Ab rights
Mitchell v. Canada (Minister of National Revenue-M.N.R) [2001]
Facts:
- Crossing boarder case
- Wants to cross border into Canada from the US w/out paying customs and excise taxes
- Metis?
Issues:
- Does restriction of this go against s 35(1)
Held:
- Claim not successtul
Reasoning:
- Test for finding  rights etc must relate to past integral practice/right etc that is integral to group
- Imp in this case
- 1)McLachlin C.J.’s useful synopsis, at the beginning of her judgment for the majority, of the Court’s understanding of
aboriginal rights and their origins.
- Of note is the recognition of the survival of aboriginal customary laws after the assertion of British sovereignty.
- basically the same thing as outlined in Van der Peet case
-  note that once an ab right is established  the issue is whether the act which gave rise to the case at bar is an
expression of that right
-  once again  Ab rights aren’t frozen in their pre-contact form ANCESTRAL RIGHTS MAY FIND MODERN
EXPRESSION
-  the question is whether the impugned act represents the modern exercise of an ancestral practice, custom, or trad
- 2) Binnie J.’s minority concurring judgment, of the sovereignty claims entailed by the aboriginal right claimed in this
case and his contentious incorporation of the doctrine of “sovereign incompatability
s 35(1) extends const protection only to those ab practices, customs, and trads that are compatible w/ the historical
and modern exercise of Crown sovereignty
-  pursuant to this arg  any Mohawk practice of cross-border trade, even if established on the evi, would be barred
from recognition under s.35(1) as incompatible w/ the Crown’s sovereign interest in regulating its borders (wonder if it’s
the same thing and unilateral extinction of rights  where this had happened would be the same sort of thing?)
-  also this arg finds its source in the doctrine of continuity which governed the absorption of ab laws and customs into
the new legal regime upon assertion of Crown sovereignty over the region
- Court hasn’t expressly invoked doctrine of ‘sovereign incompatibility’ in defining the rights protected under s. 35(1) 
but has affirmed the doctrines of extinguishment, infringement, and justification as the appropriate framework for
resolving conflicts btwn ab rights and competing claims including claims based on Crown sovereignty
- Crown is now contending that ‘sovereign incompatibility’ is an implicit element of the Van der Peet test for identifying
protected ab rights, or at least a necessary addition
-
Claim to trading/mobility rights as a member of the Iroquois Confederacy  this is incompatible w/ the historical
attributes of Canadian sovereignty  question of whether this conclusion is at odds w/ the purpose of s.35(1)  answer
is that focus should be on our national interests that we all have in common rather than to distinctive interests that for
some purposes differentiate an ab community  reconcilation of these interests favours an affirmation of our collective
sovereignty
138
R v. Sappier [2006]
Facts:
- Harvesting timber
- Unauthorized possession of Crown timber
Issues:
Held:
Majority holds that the harvested wood can’t be sold, traded or bartered to produce assets or raise money  Binnie dissents
pointing out the div of labour that existed in pre-contact societies  so bartering and selling w/in the local ab community
shouldn’t be a problem
Reasoning:
3 For the reasons that follow, I find that all three respondents have established an aboriginal right to harvest wood for
domestic uses. Given this Court's decision on the aboriginal right issue, I need not decide whether Messrs. Sappier and
Polchies also benefit from a treaty right to harvest wood
Ratio:
Comments:
LECLAIR Federal Constitutionalism and Aboriginal Difference (WebCT) (this is the same article as way above in the other
Aboriginal law section)
- Federal constitutionalism ---sovereignty over own internal affairs and while indiv abs could participate directly in fed
and prov govs w/out having to proceed through the intermediary of ab representatives
- Actors/ active members w/in Can Const rather than outside subjects acted on
- Judicially developed strategies for Ab gov
- Suggests moving away from formal legal text of const towards more informal/bottom-up/organic way of looking at
formal and informal sources of Const Law ---like history, lived practice
o This is what would allow Ab peoples to become actors w/in federalism rather than passive victims ----gives
them a role
- Critique of cultural essentialism –and defining Abs by what they were in the past ---which keeps Ab peoples as
separate entities
- Suggests treaty style federalism emphasizes pre-1950 historical horizon of ab/non-ab relationships and ignores the
interdependence born out of both coerced and voluntary proximity -----and also that it discourages participation
- Identities are more nuanced than ab or non---multiple identities
-
-
Where courts appear to have adopted a negative rights approach to Ab rights (eg. Van der Peet, Sparrow)What
would a positive rights approach look like?
o Shep. suggests maybe would look like Kapp decision?
Does the current test take into account the international approach to indigenous peoples eg. right to revitalize
and transmit culture
2.
Constitutional Recognition of Métis Rights
The backward looking approach to Ab rights where look at past/pre-contact is problematic for Metis sit since no pre-contact
-
Pre-contact rights don’t work here  so new test
Based on self-identification  not blood content  but must show relationship to community etc.
o Which is interesting b/c this relationship was so often a source of stigma and so was hidden historically
139
R v. Powley [2003]
Facts:
Steve Powley and his son Roddy were charged with unlawfully hunting moose and knowingly possessing game hunted in
contravention of the Game and Fish Act, R.S.O. 1990, c. G-I. They both entered pleas of not guilty. They admitted having
killed the moose without a hunting licence. They claimed, however, that as Metis they had an Aboriginal right to hunt for
food in the Sault Ste. Marie area and that this right could not be infringed by the Government of Ontario without
justification. The Trial Court, Superior Court, and Ontario Court of Appeal agreed with the Powleys.]
Issues:
Held:
- Infringement on moose hunting not justified
Reasoning:
- Court beings by setting out Van der Peet test and then trying to apply to Metis community
- (also note in Const Metis named as specific group)
- Modified test rather than new paradigm
- Who are the Metis:
[31] First, the claimant must self-identify as a member of a Métis community. This self-identification should not be of
recent vintage: While an individual’s self-identification need not be static or monolithic, claims that are made belatedly in
order to benefit from a s. 35 right will not satisfy the self-identification requirement.
[32] Second, the claimant must present evidence of an ancestral connection to a historic Métis community. This
objective requirement ensures that beneficiaries of s. 35 rights have a real link to the historic community whose practices
ground the right being claimed. We would not require a minimum “blood quantum”, but we would require some proof
that the claimant’s ancestors belonged to the historic Métis community by birth, adoption, or other means. Like the trial
judge, we would abstain from further defining this requirement in the absence of more extensive argument by the parties
in a case where this issue is determinative. In this case, the Powleys’ Métis ancestry is not disputed.
[33] Third, the claimant must demonstrate that he or she is accepted by the modern community whose continuity with
the historic community provides the legal foundation for the right being claimed. Membership in a Métis political
organization may be relevant to the question of community acceptance, but it is not sufficient in the absence of a
contextual understanding of the membership requirements of the organization and its role in the Métis community. The
core of community acceptance is past and ongoing participation in a shared culture, in the customs and traditions that
constitute a Métis community’s identity and distinguish it from other groups. This is what the community membership
criterion is all about. Other indicia of community acceptance might include evidence of participation in community
activities and testimony from other members about the claimant’s connection to the community and its culture. The
range of acceptable forms of evidence does not attenuate the need for an objective demonstration of a solid bond of past
and present mutual identification and recognition of common belonging between the claimant and other members of the
rights-bearing community….
3. Aboriginal Rights and the Duty to Consult
Haida Nation v. British Columbia (Minister of Forests)Taku River and Mikisew Cree
Facts:
- Logging, forestry issue  Queen Charlotte Islands
- BC gov gave forestry rights to a logging company  it was land to which Haida claimed ab title.
- Haida challenged
Issues:
Held:
Reasoning:
The Court grounded the duty to consult in the principle of “the honour of the crown”:
140
[16] The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour
of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples…
[17] The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order
to reflect the underlying realities from which it stems. In all its dealings with Aboriginal peoples, from the assertion of
sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is
required if we are to achieve “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the
Crown”:
The Court found that the duty to consult arises when the Crown has knowledge, real or constructive, of the potential
existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. As for the exact content
of the duty to consult, the Court left much to be determined by developing case law:
[39] The content of the duty to consult and accommodate varies with the circumstances. Precisely what duties arise in
different situations will be defined as the case law in this emerging area develops. In general terms, however, it may be
asserted that the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the
existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed….
[40] In Delgamuukw, supra, at para. 168, the Court considered the duty to consult and accommodate in the context of
established claims. Lamer C.J. wrote:
The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is
less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with
respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable
standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the
concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere
consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact
hunting and fishing regulations in relation to aboriginal lands
Ratio:
- Duty exists on the part of the Gov to consult w/ Ab peoples whenever gov decision-making could adversely
affect an aboriginal right or aboriginal title, and that duty extended to cases where claims of ab rights or title
had been asserted but not yet proven  grounded in the “honour of the Crown”
Comments:
Note  Duty to consult appears in Delgamuuk too
4. Nunavut, Self Government and the Inuit we did earlier in the course?)
IX.
Constitutional Renewal and Reform
1. Constitutional Amendment after 1982: The Meech Lake and the Charlottetown Accords
Amending the Constitution
Shep highlights 2 themes
-
Balance btwn stability/continuity and change to reflect the changing values of society
o Meech Lake and Charlottetown Accord reflect views that it’s far too difficult to amend
Who should be in charge of amendments/amending process
o Pop at large  citizen control  through referenda
 Charlottetown was much more open democratic process than Meech Lake…not that it worked
either
o Gov control
 Critique of Meech Lake was that it occurred behind closed doors
Shep in relation to attempted amendments
-
Both dealt w/ Quebec
141
-
-
Meech
o Trying to bring Quebec back into the Const fold
 Arg for distinct society
 Imp b/c seen as opportunity for rest of Can to recognize distinctiveness of Quebec
o But unanimity requirements caused difficulties
o And while tried to bring in Quebec  it ignored Ab issues/recognition
Charlottetown
o Some have said that reliance on referendum process has lead to precedent for greater pop participation
What are us as Canadians committed to (also see Chambers article
-
Quebec as distinct society
Equality of provs and diversity
Gender
Ec. and social rights
Ab self-governance
o Related issue is w/in Ab communities w/ eg. self-gov where could have negative effect on their rights
Limits of spending power
Etc etc etc
CB 451





Important since now Canadians had constitutonal control. Not until patriation of constitution in 1982 did we have a
domestic amending formula. Previously, Canadian gvmt had to make a request to Westminster and a statute would be
passed in London amending our constitution.
Part V is amending formula section:
Ss. 38-49 are provisions for how amend
Cairns critiques amending formula as potentially problematic since it’s too gvmt-based, gives too much power to gvmts
at expense of people.
 Referenda: To what extent should citizens be given a voice through referenda?
Who should control process of amending constitution? Gvmts vs. citizens, interests groups, individuals
 Shift towards referenda is a shift away from gvmt towards recognizing role of citizens.


Ss. 38 ff set out different requirements according to issue – a sliding scale
Section 38  general amending formula
 For important central issues, you need ALL provinces to give legislative majority
 For less central issues, 7/50 formula – 7 provinces approve with 50%
 Fed gvmt + prov(s) for changes that affect one or only a few provinces.
 This sliding scale approach reflects desire for stability for this foundational document of Canadian society, but do not
want it to be so hard to change that it cannot change to reflect changes in society.
 Qc normally asks for special veto.

Section 41  unanimity procedure  for critical, important matters
 Consent must be provided by Parliament and the legislatures of all the provs in relation to imp amendments

Section 43  Bilateral procedure  e.g. used in NF to get rid of denominational schools, and in Qc to move to
language-based schools.
 Only those affected need to consent
142

Section 44  Federal unilateral procedure  where something only affects federal level of govt (ie new Senator from
Nunavut)  allows Parliament alone to make amendments

Section 45  Provincial unilateral procedure  where amendement only affects  prov allowed to amend its const as
long as effect is limited to itself

S. 35 (1) amendments respecting aboriginals – ministerial conference, but no duty to get consent of aboriginal peoples.
Constitutional reform attempts
Aimed at bringing Quebec back into the fold. Both failed
MEECH LAKE ACCORD, 1987-90
– died when it reached its time limit. (Nfld and Manitoba opposed)
Key provisions:

distinct society clause  gave significant concern – idea that Qc should be recognized as distinct society within Can.
Prbm of equality amongst provinces or having distinction for Qc. Nfld concerned from shifting away from idea of treating
all provinces the same. There was a lot of support for this, but also much concern
 Entrenched SCC in Constitution and required 3 SCC judges to be named from Qc
 Increase in number of items to be included in provision of unanimity in Const reform
 Controls on federal spending power
 Immigration controls for provinces
 Focus turned to lack of recognition of aboriginals  only recognition of Anglo-French divide
Why did it die?




Part of reason it died was because it excluded abo peoples and rights.
Some women’s groups were concerned that distinct society clause would be used to
Meetings were close-door between premiers. Main efforts were in bringing Qc back on board.
BUT defeat was taken in Qc as unwillingness to accept Qc’s distinctiveness and result was increase in Qc nationalism
CHARLOTTETOWN ACCORD, 1991-92:










Wanted to fix problems of Meech Lake accord process
Wide-spread consultation with citizenry: joint Senate-House committee mtgs, etc.
Included provision paralleling Meech Lake accord:
Recognition of Qc as a distinct society, but also named minority communities
Commitment of Canada to racial and ethnic diversity, gender equality, etc. Had something for everybody
Took aboriginals into account and recognized abo self-gvmt, provision design to repeal s. 35(1) (territorial integrity), abo
gvmt constituting one of three orders of gvmt in Canada, right to safeguard their languages and cultures – very different
tone from s. 35(1), more dynamic
· Aside: abo rights are usually articulated as negative rights (last section)
Elected senate to provide equal provincial representation
Reform of selection of SCC justices
Guaranteed level of Qc representation in HoC, even w declining pop
Social charter clause: to address poverty rights. Non-justiciable social and economic rights, programmatic
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Why did it fail?
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Native Women’s Association was not entirely happy with aboriginal aspects – wanted to stop referendum from
happening because they argued that aboriginal women had not been adequately represented in process (more gvmt
funding for traditional organizations to participate, dominated by men).
Defeated in 6 provinces
1995 REFERENDUM IN QUEBEC
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Quebec Secession Reference: politically loaded
98% voter turnout, but by and large it was peaceful.
Gamble in terms of result, also in terms of legitimacy of process
p. 458 fed govt decided to consult SCC. Qc took this badly bc it made political issue a constitutional 1
3 questions posed to SCC:
1) Can Legislature of Qc unilaterally effect secession from Canada? NO
2) Does international law allow a right of self-determination that would give Qc Legislature the right to secede
unilaterally from Canada? NO
3) Not answered  would not decide on what clear majority or clear question is.
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SCC politically astute: suggested that secession was possible, but only with a constitutional amendment
 This requires agreement with those outside of Qc.
 Rules there needs to be a clear majority, voting on clear question, for negotiation process to commence. Cannot
keep whole group within Confederation if they dont want to.
 SCC articulated unwritten principles, which would give rise to a legal duty to negotiate terms and possibilities of
secession; however, no legal duty to agree.
 Other provinces would have to be involved in negotiation, not just Quebec and federal govt.
 What about other parties, such as Aboriginal groups?
 Monahan thinks QSR decision made sovereintist position stronger: legitimized secession option
 SCC declined to say what would constitute a clear majority and a clear question.
Clarity Act contains mechanism for House of Commons to assess whether a referendum question is clear, and whether a
majority is clear. (see Monahan p.222)
Quebec passed Fundamental Rights Act which says that 50% + 1 is sufficient.
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interesting comparison: Newfoundland joined confederation in 1949 with only 51-52% majority.
we are now more likely to see discrete amendments than efforts to overhaul the constitution and make everyone
happy.
 You don’t necessarily need to constitutionalize; you can also do a lot through statutes, e.g. First Nations Governance Act.
 Think about: how effective is constitutional law in responding to societal needs?
 CS thinks more work needed on
 Aboriginal rights
 poverty and social/economic rights
 Monahan thinks we need more controls on executive power
 Frank Michaelman (Harvard): constitutional law waning in importance due to globalization, privatization
 privacy issues threatened through modern technology: could violate ss.7-8?
freedom of expression in the workplace
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2. Democracy, Diversity and Constitutional Dialogue
Simone Chamber, “New Constitutionalism: Democracy, Habermas and Canadian Exceptionalism”
 Liberal democracy has come a long way bc of its adaptability
 One of its strands = new constitutionalism: finds its theoretical expression in the democratization of contract
theory (ie conceptual enfranchisements, pluralism)
 Constitutions have had to accommodate pluralism and diversity in new ways
 Just making Bill of Rights for everyone is not enough  constitutions should reflect diversity in their rights
statements (not just protect it)
 The push to accommodate diversity (incl future diversities) turns social K into an open-ended conversation into
which new voices can enter at any time.
 Canadian constitutional debate over past 20 yrs has not produced changes, but value is in the discussion not in
the results. It embodies Can’s commitment to diversity, rights + recognition
 Most important feature is practised acountability, even if nothing new on document
New const’m is about rights that can accommodate diversity, identity, plurality and difference

The pressures of egalitarian democracy combined w/ demands for inclusion of diff voices has made
representative constitution-making (a la US in 1776) increasingly untenable
 Meech Lake showed how Canadians expect to be consulted
 Prbm w/ constitution-making in culturally divided societies: we need ‘ppl’ to be able to speak as one in order to
fulfill voluntarist aspiration yet creating such ppl through assimilation violates that very aspiration.
 Solution: engaging in democratic process of deliberation can create bonds of solidarity btwn diverse actors w/out
requiring immersion in melting pot
 Such process represents acceptance of rules regulating practice rather than agreement about substantive
political visions.
 Ex: Canada Clause in 1992  contained many visions but rejected for not adequately expression any one view.
BUT Canada is diversity and clause was good bc it didn’t contain one unitary vision of justice.
 In Const debate, this is a prbl  legitimate constitution must have wide popular support from all major sectors
but if each sector evaluates constitution from its own perspective, then no solution will be possible.
 How to get over this? Embrace multicultural diversity as predominant characteristic of Canada and overcome
diversity blindness.
o Let go of expectation that Const should present unitary vision (as in US tradition)
Note this does not mean give up unity, but try to understand each other

Constitutionalism in age of democratic diversity is more about keeping the conversation going than about getting
everyone to sign on dotted line at one time and place.
 2 components: procedure and process.
 Alan Cairns: “constitutional politics is never-ending”
 Charles Taylor: Canada based on sense of partnership where one common purpose for the people is maintaining
this association (conversation) w/ ppl whom they recognize as different
Idea of an ongoing open conversation btwn diversities rather than idea of unitary identity for nation-state.

2 main characteristics of New Constitutionalism 
1) increased recognition and respect for diversity
2) Growing demand for popular consultation and accountability
o Advocates discourse theory bc its procedural character makes it tool in theorizing const’l model that can
accommodate difference and diversity.
o It allows new voices and as yet unreconized identities to enter the fray
 This introduces view of relation btwn rights and democracy whereby we determine rights that will limit our
democracies.
Ex. SCC decision on Qc law restricting English signs and subsequent use of notwithstanding clause.

For justice to exist what counts is how convincing rights are to citizens.
145
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Threats to rights come in form of changing attitudes and beliefs
Conditions of democractic discourse include indiv freedom, equality and mutual respect. To maintain these we
need circular argument (ie those same conditions)
 SO there’s no ppl’s will to speak of w/out rights + no rights w/out ppl’s will endorsing them
 Liberal democracy, in its constant revision is therefore what it says it is.
 New consitutionalism combines modern centrality of rights w/ ancient role of practice
 It shifts emphasis away from discovery and writing of abstract principles to the maintenance of a practice that
presupposes rights.
Comments in class
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Author speaks to how to construct Canadian constitutionalism that respects different societal needs?
Argues for vision that combines centrality of rights in modern constitutions with role of practice in ancient
consitutions.
Makes point that Constitutionalism in age of diversity is more about keeping a conversation going than about
collaboration across differences  in this sense Chambers sees Charlottetown as a success story
getting all parties to sign on dotted line. Important ultimately to maintain process for dialogue.
Even though we talk about substance issue, laws is also about process and ensuring good process avoids a lot
problems. How state acts is important as well as what principles govern the state.
Implicit idea that we should not potentially rely on judges to decide those rights, but ensure the process that
protects those rights. De-emphasis of courts as saviours.
Importance of approaching issues from a bottom up perspective in order to find applicable and valuable
solutions  in Quebec  w/ homelessness prob
146
Royal Proclamation 1791 ..................................................................................................................................................... 20
AG Ontario v. AG Canada (The Local Prohibition Reference) [1896]  POGG narrowed  paramountcy articulated ..... 24
-
Delgamuukw ................................................................................................................................................................ 40
Trade and Commerce .......................................................................................................................................................... 50
Carnation Co. Ltd. v. Quebec Agricultural Marketing Board [1968]  effects on intraprov trade were incidental so didn’t
encroach on fed ................................................................................................................................................................... 50
Central Canadian Potash Co. Ltd. v. Govt. of Saskatchewan [1979]  ultra vires  P&S impact on int’l trade ........... 51
Sec 92(A) .............................................................................................................................................................................. 51
Trade and Commerce - Prong #1 – Inter-prov and int’l trade and commerce .................................................................... 52
The Queen v. Klassen (1960) (just a Manitoba Court of Appeals decision)  impeded on prop and civil rights but
necessarily incidental b.c as whole legislation aimed at interprov/intl trade ..................................................................... 52
Kosher foods – importation restrictions – Eng labels on products (quebec) ...................................................................... 52
Trade and Commerce - Prong #2 – General Trade and Commerce.................................................................................... 53
General Motors of Canada Ltd. v. City National Leasing [1980]  question of national concern ..................................... 53
Kirkbi AG v. Ritvik Holdings Inc. [2005] P&S  national  minimally intrudes on prov .................................................... 54
Trade Barriers, Ec Integration and National Sovereignty .................................................................................................... 54
Black and Co. v. Law Society of Alberta [1989]  impaired mobility rights ...................................................................... 55
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 ..................................................................................................... 63
Three themes pre-Charter for dealing with rights .............................................................................................................. 64
Union Collery Co. v. Bryden [1899] – BC  Naturalization  expansive def’n employment/labour ............................. 65
Cunningham v. Tomey Homma [1903]  inconsistent w/ Union Collery  political rights ............................................. 65
Quong Wing v. The King [1914]  Asian couldn’t hire white woman  federalism not good at protecting from racism 66
Implied bill of rights ............................................................................................................................................................. 67
Reference re Alberta Statutes [1938] publication gov propaganda ............................................................................... 67
Saumur v. City of Quebec [1953]  JW’s and their pamphlets .......................................................................................... 68
Switzman v. Eibling [1957]  communism ......................................................................................................................... 68
AG Canada v. Dupond [1978]  no demonstrating............................................................................................................ 69
Ontario Public Service Employees’ Union v. AG Ontario, [1987] implied bill of rights used regardless of charter ....... 69
Canadian Bill of Rights ......................................................................................................................................................... 69
-
Equality Provisions ....................................................................................................................................................... 70
R v. Drybones [1970] ............................................................................................................................................................ 70
AG Canada v. Lavell [1974] .................................................................................................................................................. 71
Bliss v. AG Canada [1979] .................................................................................................................................................... 71
Hunter v. Southam [1984]  living tree approach  purposive approach ...................................................................... 74
147
Big M Drug Mart (deats on purposive)................................................................................................................................ 75
Vriend v. Alberta [1998]....................................................................................................................................................... 79
(Dolphin Delivery) Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. [1986] ................. 80
GOVERNMENTAL ACTORS ................................................................................................................................................... 81
-
Entities Controlled by Gov ........................................................................................................................................... 81
McKinney v. University of Guelph [1990]  forcing retirement ......................................................................................... 81
Stoffman v. Vancouver General Hospital [1995] ................................................................................................................. 82
-
Entities Exercising Governmental Functions ............................................................................................................... 82
Godbout v. Longueuil [1997]  eg of municipality exercising gov function ....................................................................... 82
GOVERNMENTAL ACTS ........................................................................................................................................................ 83
-
Entities Implementing Government Programs ............................................................................................................ 83
Eldridge v. British Columbia (Attorney General) [1997] ...................................................................................................... 83
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Entities Exercising Statutory Powers of Compulsion ................................................................................................... 84
Slaight Communications Inc. v. Davidson [1989]................................................................................................................. 84
GOVERNMENT INACTION .................................................................................................................................................... 84
Vriend v. Alberta [1998]  negative interference counts too  INTENTIONAL OMMISSION ........................................... 84
Dunmore v.Ontario (AG) [2001]  POSITIVE OBLIGATION OF GOV TO PROTECT VULNERABLE GROUPS –AG WORKERS85
Hill v. Church of Scientology of Toronto [1995] ................................................................................................................... 86
SECTION 1- Defining limitations .......................................................................................................................................... 87
-
A) Prescribed by law .................................................................................................................................................... 87
R. v. Nova Scotia Pharmaceutical Society [1992] ................................................................................................................ 88
o
Oakes Framework/Test................................................................................................................................................ 89
R. v. Oakes [1986] ................................................................................................................................................................ 90
o
Critique of Oakes test .................................................................................................................................................. 91
o
In the wake of Oakes test subsequent development of Oakes test: Context and Deference ................................ 92

1) Contextual Approach ............................................................................................................................................... 92
Edmonton Journal v. Alberta (AG) [1989]  contextual approach ..................................................................................... 92
Thomson Newspapers Co. v. Canada [1998] overview of contextual approach ............................................................. 93
R v. Lucas [1998]  CONTEXTUALITY SHOULD ONLY BE USED IN THIRD STAGE OF OAKES TEST ...................................... 93

2) Deference to legislative judgement ........................................................................................................................ 94
Irwin Toy Ltd. v. Quebec (AG) [1989]  key case on judicial deference ............................................................................. 94
RJR Macdonald Inc. v. Canada (AG)  FREEDOM OF EXPRESSION TABACCO ADVERTISING ............................................. 95
Newfoundland (Treasury Board) v. N.A.P.E. [2004] ............................................................................................................ 95
Ford v. Quebec [1988]  OVERRIDE ................................................................................................................................... 98
(a)
Fundamental Freedoms  Freedom of Religion (s.2[a]) ..................................................................................... 100
148
Multani v. Commission scolaire Marguerite-Bougeoys [2006].......................................................................................... 102
Sunday Observance Cases ................................................................................................................................................. 103
R v. Big M Drug Mart Ltd. [1985]....................................................................................................................................... 103
Edwards Books and Art Ltd. v. The Queen [1986] ............................................................................................................. 104
(b)
Fundamental Freedoms  Freedom of Expression (s.2[b]) ................................................................................ 106
R v. Keegstra [1990] (Note  Sheppard said we could omit this case) (hate speech)  ............................................ 106
(Dolphin Delivery) Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. [1986] (SEE MORE
IN DEPTH SUMMARY ABOVE) ............................................................................................................................................ 108
Framework for a Doctrinal Structure for Freedom of Expression Cases ........................................................................... 108
Irwin Toy Ltd. v. Quebec (AG) [1989] ................................................................................................................................. 108
(c)
Life, Liberty and Security of the Person (s.7) ......................................................................................................... 109
Reference re Section 94(2) of the Motor Vehicle Act (BC) [1985] ...................................................................................... 109
Gosselin ............................................................................................................................................................................. 110
R v. Morgentaler [1988]..................................................................................................................................................... 110
Rodriguez v. British Columbia (AG) [1993] ........................................................................................................................ 111
Suresh v. Canada (Minister of Citizenship and Immigration) [2002] ................................................................................. 112
(d)
Equality Rights (s.15) ............................................................................................................................................. 113
Andrews v. Law Society of British Columbia [1989]  sets out first s.15 test  intersection w/ s.1 .............................. 114
Law v. Canada (Minister of Employment and Immigration) [1999] .................................................................................. 115
Test of Equality laid out in Law v. Canada ..................................................................................................................... 117
IACOBUCCI J’s TEST FOR DISCRIMINATION FROM Law: .................................................................................................... 117
R. v. Kapp [2008] ................................................................................................................................................................ 118
Lovelace [2000] (extra) ...................................................................................................................................................... 120
Eldridge v. British Columbia (AG) [1997] adverse effects doctrine ............................................................................... 120
Corbiere v. Canada (Minister of Indian and Northern Affairs [1999] ................................................................................ 121
Mahe v. Alberta [1990] ...................................................................................................................................................... 123
Ford v. Quebec (AG) [1988] ............................................................................................................................................... 124
Doucet –Boudreau v. Nova Scotia (Minister of Education) [2003] .................................................................................... 125
Schachter v. Canada [2002] ............................................................................................................................................... 127
Vriend v. Alberta [1998]..................................................................................................................................................... 129
Delgamuukw ...................................................................................................................................................................... 134
R v. Sparrow [1990] ........................................................................................................................................................... 134
Calder v. BC (AG) [1973] .................................................................................................................................................... 135
R v. Gladstone [1996]......................................................................................................................................................... 135
Test for prima facie interference w/ an existing aboriginal right ...................................................................................... 136
149
R v. Van der Peet [1996] .................................................................................................................................................... 136
Distinctive Culture Test...................................................................................................................................................... 137
Mitchell v. Canada (Minister of National Revenue-M.N.R) [2001] .................................................................................... 138
R v. Sappier [2006] ............................................................................................................................................................. 139
R v. Powley [2003] ............................................................................................................................................................. 140
Haida Nation v. British Columbia (Minister of Forests)Taku River and Mikisew Cree ....................................................... 140
150