What is this document?
This document isn’t a summary as much as a kind of flowchart to help you with fact
patterns in Professor Sheppard’s Constitutional Law class. It doesn’t summarize the
entire course — instead, it mirrors the Federalism and Charter Analysis frameworks that
she provides and then fills in the blanks with notes, anecdotes, and cases to help you
untangle the facts at hand. Please share it using these terms: AttributionNonCommercial-ShareAlike 2.5 Canada (CC BY-NC-SA 2.5 CA) - Lex
Wow, you’re the best. How can I thank you?
Consider making a small donation to Head & Hands / À Deux Mains. Learn more
about their important work below — and, if you’re between the age of 12-25, you should
know that you can also access all services at Head & Hands yourself!
You can make a simple, one-time donation of $5 or $10 right here.
Depuis 1970, À deux mains / Head & Hands est
voué au bien-être physique et mental des jeunes
de Montréal. Aujourd’hui, nous offrons une variété
de services médicaux, sociaux et juridiques dont:
De l’information et des renvois
Des cliniques médicales et de dépistage de VIH
Le projet sens, un programme d’éducation
sexuelle
De l’assistance judiciaire, des
accompagnements et des
consultations d’avocats
Des consultations pour couples, familles et
individus
Le programme pour jeunes parents
Le centre de jour pour jeunes Jeunesse 2000
Le travail de rue et programme d’échange des
seringues
Le tutorat
Notre garde-manger d’urgence
Notre approche est holistique, sans jugement
et incorpore la réduction des méfaits.
Since 1970, Head & Hands / À deux mains has
been committed to the physical and mental health
of our community’s youth. Today, we offer a
number of medical, social, and legal services
including:
Information and referrals
Medical clinics and special HIV testing clinics
The Sense Project sex education program
Legal assistance, accompaniment, and
lawyer consultations
Social counselling with couples, families, and
individuals
The young parents program
The Jeunesse 2000 youth drop-in centre
Street work and needle exchange
Tutoring
Our emergency food pantry
Our approach is harm-reductive, holistic, and
non-judgmental.
FEDERALISM ANALYSIS
Assessing the Validity of a Federal Law
- Swinton explains that federalism analysis entails a three step inquiry:
1. delineation of the “matter” of the statute (pith and substance)
2. delineation of the scope of the competing classes
3 determination of the class into which the challenged statute falls
1. What is the law’s pith and substance? In other words, make a statement about the
dominant subject matter, central feature, or dominant purpose of the law.
a) Consider the law in both its statutory and its political context
- Look to both the preamble and extrinsic evidence (political and social context) to determine the law’s
primary function (the stated purpose should be supported/strengthened by the preamble, e.g. Anti-Inflation)
- In the Reference re Employment Insurance Act, the court looks to the social nature of unemployment
insurance to determine that Parliament should be able to adapt the plan to the new realities of the workplace
- In the Supreme Court Reference, the court looks to legislative purpose and history to determine the
meaning and scope of the law (which expands and changes over time
- In the Persons Case, the JCPC looks forward, adopting a “living tree” approach to interpretation
- Important to look to extrinsic evidence to determine the background, extent and purpose of the legislation
(Morgentaler)
b) Consider what its stated purpose is versus its actual purpose - Can you ensure that the law is not “colourable”? In other words, does it mean something more than, or
different from what its words seem at first glance to say? (Lederman, Morgentaler, Reference Firearms Act)
- In R v. Morgentaler, the actual purpose of the law is found to have diverged from the law’s stated purpose,
which led the court to base its analysis on the actual purpose instead.
- In Westendorp, a bylaw which is said to be about regulating controlling crowded streets is really about
controlling solicitation of prostitution
- In contrast, in Walter v. AG Alberta (pre-Charter era), the stated purpose of a law is accepted at face value
(property and civil rights) rather than the clear actual purpose (punishment of a religious minority)
- In Lacombe, the law appeared to regulate zoning but was actually found to be about the federal power of
aerodrome regulation
- Is there an attempt to frame this issue as a federal taxation power when its pith and substance is
provincial? This is not allowed — the federal government cannot use its taxation and spending power to
trench on provincial areas (AG Canada v AG Ontario, Employment and Social Insurance)
c) Consider the effects and outcomes of the law
- What is the impact of this law in terms of policy and justice? We must consider the issue in terms of these
“non-logical” grounds, and not just logic alone.
Is this summary helpful? Make a small donation to Head & Hands.
2a. How can we classify that purpose federally?
- Lederman’s thesis is that a rule of law, for the purposes of the distribution of legislative powers, is to be classified by
the feature that is judged its most important.
a) Which specific federal powers within s. 91 are at stake?
- Write a list of all the applicable enumerated powers.
- It is possible that no enumerated heads of power will be appropriate, in which case look to the other broad
sources of federal jurisdiction. It is worth mentioning if certain heads of power would allow partial validity of
the law (e.g., the program or policy could be implemented in specific federal institutions)
- In the Reference re Employment Insurance Act, the head of power of “unemployment insurance” in 91(2A)
was interpreted broadly (with a “living tree” analysis) to include certain types of replacement income that
would not have been included at the time the section was drafted (maternity and paternity benefits) - Consider the federal power of interprovincial works and undertakings, outlined in 92(10a)
- In Friends of the Oldman River Society v. Canada (Min. of Transport), it was found that a project the
Alberta government was running would affect federal works 91(10) of navigable waterways, fisheries, and
further down Indian lands – so federal government regulations about assessment did apply
- Note that the treaty power is a federal executive prerogative power but that legislative implementation
cannot be done unilaterally under s. 132. Rather, implementation must be consistent with the division of
powers and have no effect until the relevant elements are adopted provincially (Labour Conventions case).
Nevertheless, if international treaty or convention obligations are involved they are important to mention
because it bolsters and reinforces other arguments (e.g., national concern, as it does in R v. Crown
Zellerbach)
b) Does this issue fall within the criminal law power in 91(27)? - Look to Morgentaler (abortion) to evaluate whether a province is attempting to recriminalize something that
had been decriminalized by the federal government, or whether a province is attempting to otherwise
encroach on a criminal matter (prostitution in Westendorp) - One of the important pieces of evidence in Morgentaler to that effect was that the language used in
provincial abortion law was nearly identical to what had been in the criminal code, and there were clear fines
and penal implications (purpose and form).
i. Does its purpose meet the criminal power test?
- The law must have a criminal law purpose, in one of the original categories set out in the Margarine
Reference: (health, public peace, order and security, morality) - It might also meet the additional purpose in R. v. Hydro Quebec (protection of environment, which is linked
to the idea that “the purpose of the criminal law is to underline and protect our fundamental values,” the
environment being part of this). Note if an environmental issue doesn’t meet the form test, look to emerging
doctrine in national concern.
- Note the tension between the criminal law test (which includes ‘morality’) and the provincial use of this
power (92(16)) to regulate morality. This is referred to as morality’s “double aspect” in Nova Scotia Board of
Censors v. McNeil. If a morality issue doesn't meet the form test, consider 92(16).
- Purpose element of the criminal law power interpreted broadly in both Hydro Quebec and RJR Macdonald
(linking the “aspect of evil” to protection of health, “put bluntly, tobacco kills”) - A narrower interpretation in the Reference re Assisted Human Reproduction, where some elements that
prohibited negative practices were upheld, but others were not deemed valid criminal law ii. Does its form meet the criminal power test?
- The law cannot be merely regulatory, it must have a criminal form (Margarine reference). In other words, it
must have an element of prohibition, backed by penalty (otherwise it would wall within civil rights and
property, or local and private: licensing, regulatory, preventative)
- The court is lenient about the form test in RJR Macdonald v. Canada, but it does involve a prohibition
- In R. v. Hydro Quebec also the court gives a broad/lenient interpretation to what constitutes a criminal law
form, rejecting the idea that the environmental control legislation was a regulatory scheme and instead that it
carefully targeted dangerous and toxic substances.
- In Nova Scotia Board of Censors v McNeil, even though the censorship laws had a moral dimension to it,
the laws did not have any prohibition or penalty required in a criminal law, it was a purely regulatory penalty
(purpose and form).
- In Rio Hotel v New Brunswick, laws about nudity in bars were found to overlap with federal criminal law
powers to some extent but were really about regulating liquor sales and had no penal sanctions
- Another broad interpretation of form in Reference re Firearms Act, which met the “public safety” purpose,
and that licensing and registration of guns is not purely “regulatory” and focused on prohibitory elements,
and also notes that this is different from other regulatory frameworks as guns are inherently dangerous. - A narrower interpretation in the Reference re Assisted Human Reproduction, suggests a retreat from the
historically broad approach (where some provisions were held out as valid, but more regulatory elements
were not). This is an indication that the court may find some sections valid and others not.
- Conversely, provincial laws that have prohibitions and penalties are not necessarily infringing on criminal
law powers (provinces have the ability to impose punishment for violation of provincial laws in 92(15))
c) Does this issue fall within one of the prongs of peace, order & good government?
- Monahan outlines three prongs of POGG: emergency, national concern, and purely residual. i. Does it fall within the scope of the emergency power?
- Laskin’s four requirements for valid emergency law in the Reference re Anti-Inflation Act:
1. Form aspects: is the law temporary or permanent? (emergencies are short-term)
2. Preamble: can be used to assess the gravity of the circumstances which called forth the legislation and
strengthen any assertion of crisis conditions
3. Extrinsic evidence: does Parliament have a rational basis for believing that there is an emergency? Note
that the Court need not conclude that there actually was an emergency but only that Parliament had a
rational basis for concluding that an emergency situation existed
4. Links to enumerated heads of power: does it have a foothold somewhere in s. 91?
- Note that the Emergencies Act gives a definition of an emergency so laws relying on this power should
consider the Act (and governments should declare a national emergency)
- There was debate about whether inflation constituted an emergency in the Reference re Anti-Inflation Act,
which highlights the fact that determination of an emergency may not fit with traditional conceptions
- Recognized that prevention of emergency is also a valid element of emergency power in Canada
Temperance Federation (to legislate for prevention appears to be on the same basis as legislation for cure)
ii. Does it fall within the scope of the national concern doctrine?
- In R v. Crown Zellerbach, the court sets out the test for an issue of national concern:
1. It is not the emergency doctrine (providing a constitutional basis for necessary, temporary legislation)
2. It applies both to new matters (not existing at confederation), and matters which previously have been of a
merely local or private nature but have now become matters of a national concern (think about this
creatively: what elements of the law, the approach to the problem, or the tools involved are new?)
3. Singleness, distinctiveness, and indivisibility (it is specific, does not encroach on provincial powers in a
way that is fundamentally at odds with distribution of power under Canadian federalism)
4. Provincial inability: Is a significant aspect of the problem simply beyond provincial reach to solve? (e.g.,
crosses provincial borders) What would the impact be extra-provincially if a province failed to address the
issue? The federal government is able to fill the gaps of incapacity or inaction with a (specific) measure.
- More recent developments: while in R v Hydro Quebec, it was found that protection of the environment
could be a criminal law power, there is still doctrinal uncertainty about whether the environment could also
be regulated using the national concern doctrine as well.
- In Friends of the Oldman River Society, the court states that environmental regulation is too diffuse (not
‘distinctive’ enough) to meet national concern doctrine criteria (but you can easily imagine sub-elements of
environmental regulation that might be able to fit under national concern) but they do still find substantial
impact of environmental issues on federal government to allow overlapping powers
d) Does this issue fall within either prong of the trade and commerce power in 91(2)?
i. Does it fall within the general branch of Parliament’s trade and commerce
power?
Does the impugned law fall under the general branch of Parliament’s trade and commerce power under
section 91(2)? (General Motors of Canada Ltd v City National Leasing)
(a) Is the impugned legislation part of a general regulatory scheme?
(b) Is the scheme monitored by the continuing oversight of a regulatory agency?
(c) Is the legislation concerned with trade as a whole rather than with a particular industry? (d) Is it of a nature that the provinces jointly or severely would be constitutionally incapable of enacting?
(e) Would the failure to include one or more provinces or localities in the legislative scheme jeopardize the
successful operation of the scheme in other parts of the country? e.g., protecting economic development
nationally by creating a consistent privacy regime.
Note that the regulation of general trade must be broad and sweeping, and cannot single out a particular
trade or industry (Labatt Breweries v. Canada).
ii. Does it fall within the interprovincial and international trade branch of
Parliament’s power?
Does the impugned law fall under the interprovincial and international trade branch of Parliament’s trade and
commerce power under section 91(2)? (Murphy v CPR; The Queen v Klassen (MBCA). Justifiable if the “impugned enactment is an integral part of a scheme for the regulation of international or
interprovincial trade, a purpose that is clearly outside provincial jurisdiction and within the exclusive federal
field of action.” (Caloil)
Note that provincial regulations that have an incidental effect on extraprovincial trade were valid (Carnation).
2b. How can we classify that purpose provincially? (or municipal bylaw)
- Swinton notes that federalism analyses entail a three step inquiry:
1. delineation of the “matter” of the statute (pith and substance)
2. delineation of the scope of the competing classes
3 determination of the class into which the challenged statute falls
a) Which specific provincial powers within s. 92 are at stake?
- Write a list of all the applicable enumerated powers.
- Note that the provinces use various powers to regulate morality: property and civil rights, administration of
justice, imposition of punishment, local and private nature, etc.
- In Chaterjee v Ontario, which is about a provincial law allowing civil forfeiture, the law was found to have
valid provincial objects, including deterring crime, seizing resources that may be used to fund future crime,
funding costs associated with compensating victims, and so on so it is possible that the province can
regulate and touch on some criminal-seeming issues
b) Does this issue fall within the category of “property and civil rights?” 92(13)
- Historically a very broad reading of this category through the JCPC - In Toronto Electric Commissioners v. Snider, the JCPC narrowly interprets trade and commerce and the
criminal law power while it broadly interprets property and civil rights, and they do the same thing in AG
Canada v AG Ontario (Employment and Social Insurance) (criticized by Kennedy, Macdonald, Smith, etc.)
- Note the historical jurisprudence and constitutional practice of according provinces jurisdiction over
intraprovincial commercial transactions (i.e. Snider), despite federal powers for interprovincial works listed in
92(10), when commercial matters are involved it typically belongs in the category of “property and civil
rights” (92(13)
- Broadly interpreted to allow provincial capacity to police morality: in Nova Scotia Board of Censors v.
McNeil, the court determines that in pith and substance, the province’s film censorship laws are about
regulating business (property and civil rights) not criminal law power.
- In Westendorp v. the Queen, there was an attempt to frame the anti-prostitution law as an issue of property
and civil rights, but the law was deemed to be colourable and actually an attempt to criminalize activities and
trench on the federal government’s criminal law powers
- In Rio Hotel v New Brunswick, the provincial law that restricted the amount of nudity in bars was
constitutionally valid under “property and civil rights" as a matter of regulating business (despite overlapping
with applicable federal laws). This is in contrast with Westendorp, which was colourable: this law said exactly
what it did, and was framed as a way of regulating liquor sales
c) Does this issue fall within “matters of a merely local and private nature?” 92(16)
- See if there are any justifications for the legislation as merely local and private.
- The second ground upon which the provincial censorship law was upheld in Nova Scotia Board of Censors
v. McNeil was “local and private nature” where the court says that “in a country as vast and diverse as
Canada, where tastes and standards may vary from one area to another, the determination of what is and is
not acceptable…” may fall under 92(16)
3. If valid on the basis of pith and substance, does the law have any incidental
effects? Incidental effects are permissible provided that the law’s dominant purpose (its pith and substance) fits within
federal jurisdiction. Be clear to tease out what the core purpose of the law is (pith and substance) even if it has other
elements. However, if a specific provision appears invalid on the basis of pith and substance, you may have to more
on to step four and test for ancillary effects.
4. If invalid on basis of pith and substance, can provision be otherwise justified?
- It is important to distinguish between the pith and substance of the Act as a whole versus the pith and substance of
particular subsections in cases where there appears to be an encroachment on the other level of government - In the case that a provision is found to be unconstitutional on the grounds that its pith and substance require it to fall
into the jurisdiction of the other level of government, the provision may be saved on the basis of the ancillary effects
doctrine (necessarily incidental). A provision that intrudes on the other level of government’s jurisdiction is intra
vires if it is a necessary part of a larger piece of legislation that is in pith and substance intra vires. - The question to asked is: is the impugned provision sufficiently integrated within the federal statute to sustain its
constitutionality? The test is outlined in General Motors v City National Leasing:
1. Extent of the intrusion: When evaluating whether there is an issue of ancillary effects, imagine whether one level of
government will argue whether an element/provision within a law will be seen as “going too far” or intruding into their
area of jurisdiction.
2. Validity of the legislation as a whole: if the legislation is valid in pith and substance, and only one provision is being
questioned, that provision may be an ancillary effect and therefore accepted
3. Connection: there is a sliding scale test based on the degree of intrusion. If the extent of the intrusion is very
serious, it must be strictly, truly necessary. If the extent of the intrusion is not as serious, it must only be functionally
connected to the general objective. (echoed in Lacombe)
- In GM, the result was yes, it was necessarily incidental: the provision was a small but necessary part of a larger
piece of legislation.
- Note that provincial regulations that have an incidental effect on extraprovincial trade were valid (Carnation).
- In Quebec (Attorney General) v. Lacombe, the court agreed that to meet the ancillary effects test, a prima facie
invalid measure must complement rather than merely supplement the legislative scheme. It must, both rationally and
in its function, further the purposes of the valid legislative scheme of which it is said to be part. By banning
aerodromes throughout the whole municipality, it did not function as zoning legislation but instead as a stand‑alone
prohibition.
Assessing the Applicability of the Law
-The doctrine of interjurisdictional immunity protects certain matters (deep cores of competency) that fall within
federal (or provincial) jurisdiction from the impact or interference of otherwise valid provincial (or federal) laws.
- In cases where this applies (where a law binds a person or institution otherwise normally regulated by the other
level of government), the court will read down the statute so that it is understood to only apply to matters within the
enacting body’s jurisdiction. - The first step is to determine whether the law impedes on a protected core of provincial competency, and the
second step is to determine whether the impairment on the federal law is sufficiently serious. (outlined in Canadian
Western Bank v. The Queen in Right of Alberta)
- In the Insite case (Canada (Attorney General) v. PHS Community Services Society) it was determined that decisions
about what treatment may be offered in provincial health facilities do not constitute a protected core of the provincial
power over health care and are not, therefore, immune from federal interference.
- As the court notes in Canadian Western Bank v. The Queen in Right of Alberta, the doctrine of interjurisdictional
immunity is falling out of favour given that a view of federalism that accepts interplay is more accepted. This is
echoed in the Insite case: “the doctrine of interjurisdictional immunity is narrow, and its premise of fixed watertight
cores is in tension with the evolution of Canadian constitutional interpretation towards the more flexible concepts of
double aspect and cooperative federalism.”
- This is also reiterated in Charterjee v Ontario (AG), where the idea of proliferating jurisdictional enclaves was
discouraged and both federal and provincial laws were found to be applicable - However, in Quebec (AG) v Canadian Owners and Pilots Association, it was found that the federal power to
determine the location of airports and aerodromes was an essential and indivisible part of aeronautics and, as
such, lies within the protected core of the federal aeronautics power. No provincial power could regulate in parallel.
Assessing the Operability of the Law
Are both levels of government legislating on a similar matter?
- The double aspects doctrine allows for more than one level of government to legislate on a similar matter.
- Both Swinton, Lederman, Ryder emphasize the reality of overlap and complexity. There are no “watertight
compartments” (Lord Atkin) and absolute exclusivity is impossible.
- In Multiple Access v McCutcheon, the court relied heavily on the double aspects doctrine. It says that while federal
legislation may appear redundant in the case of an overlap with one province’s law, other provinces may be silent on
the issue and the federal law is serving an important purpose and filling a gap.
- Dickson quoted in Multiple Access: the double aspects doctrine is applicable where the contrast between the
relative importance of the two features is not so sharp: When, as here, the federal and provincial characteristics are
roughly equal in importance, there would seem little reason, when considering validity, to kill of and let the other live. - Concurrent matters or fields have been recognized in many areas: highways, temperance, insolvency, etc.
- In Rio Hotel v New Brunswick, a provincial law regulating nudity in businesses was found to be valid alongside
existing federal criminal law, hence the double aspects doctrine applied.
Is there a conflict between valid federal law and valid provincial law?
- In the case where a valid federal law and a valid provincial law both apply to the same facts, the rule of federal
paramountcy doctrine applies (the provincial rule is deemed inoperable). - Determining whether a conflict actually exists depends on whether the court takes a narrow or broad approach (the
test is outlined in Rothmans and Western Bank):
i.
Narrow: Is there express conflict or an impossibility of dual compliance? Both laws may operate unless it would
be impossible for those subject to (or responsible for implementing) the two different legislative regimes to
comply with both. This is the older approach in Multiple Access (finds with securities legislation that mere
duplication is not a conflict, in fact, quoting Lederman “it is the ultimate in harmony”) and in Ross (where
provincial law expanded federal motor vehicle law in the same direction, where the federal power was criminal
and the provincial power was regulatory and both were fine).
ii.
Broad: Negative implications: is there a frustration of legislative purpose? (“Covering the Field”): Parliament, by
legislating, has enacted a code that was intended to be complete. Is there an incompatibility of legislative
intentions or objectives by the conflicting provincial law?
- This is the more modern tendency in Bank of Montreal v Hall (the provincial notice requirements frustrate the
federally granted right to the bank of immediate seizure) - This tendency is also reproduced in Benson & Hedges v Saskatchewan (the test applied is a broad one, but
does not find a frustration of legislative purpose between the provincial and federal rules regarding display of
tobacco products) as well as in Quebec (Attorney General) v. Lacombe (aerodromes) - However, a fairly modern case (Rothmans v Saskatchewan) the tobacco company did try to make the “covering
the field” argument alone (without the frustration of purposes argument) and failed: the court accepted
concurrency of provincial and federal laws on tobacco advertising
What about indigenous jurisdiction?
- Macklem points to the fact that both the Delgamuuk and Pamajewon cases asserted a certain right to aboriginal
self-government over lands to which the community holds aboriginal title. This potentially creates a third layer of
conflict for the purposes of operability and overlap. One interpretation is a partial aboriginal paramountcy over certain
kinds of issues related to land and self-governance.
- According to s. 88 of the Indian Act, provinces are allowed to make laws which apply equally to those with Indian
status, but when those laws are inconsistent with the Act, the FN Fiscal Management Act, or other band regulations
they are not applicable.
- Typically, federalism problems are about both levels of government fighting for greater control, but in the case of
indigenous communities it is often both levels attempting to skirt their responsibilities. When there is a dispute over
who has jurisdiction or obligations to an indigenous community, they pay first and resolve the dispute afterward. This
is to ensure equality rights (s. 15) for indigenous peoples.
A bonus test! Would allowing the law’s validity upset the balance of powers?
This is the underlying question in all federalism problems but is also almost a test unto itself:
- The Secession Reference affirms federalism and a balance of legislative powers as an unwritten principle.
- The Firearms Reference takes a novel doctrinal approach by explicitly considering whether using the criminal law
power to allow the law’s validity upsets the balance of power.
- The third prong of the national concern test in R v. Zellerbach warns about this: the requirement for singleness/
distinctiveness/indivisibility is set out to ensure specificity, so that provincial powers are not encroached upon in a way
that is fundamentally at odds with the distribution of power under Canadian federalism
- Consider Simeon’s key values of democracy, community, and functionalism/efficiency as mechanisms to determine
the appropriate level of government in a federalism problem
Is this summary helpful? Make a small donation to Head & Hands.
CHARTER ANALYSIS
B. Do the claimants have standing?
Does the plaintiff have private interest standing?
• Individuals: any individual whose Charter rights have been violated has standing to raise the Charter issue and
seek a remedy under either s. 24 or s. 52(1).
• Corporations: freedom of speech has been interpreted as an area where corporations can have rights (e.g. Irwin
Toy), but freedom of religion is not available to them. Equality rights, which apply to “every individual” do not apply
to corporations, nor do section 23 rights (which apply to “citizens”).
• This doesn’t mean that corporations cannot sometimes engage in cases that touch on these issues, and section 52
remedies tend to allow a broader range of claims (e.g., see Big M)
If not, does the plaintiff have public interest standing, taking into account the purposes of
standing law?
Test from Canada (AG) v DTES Sex Workers United Against Violence Society.
1. Does the case raise a serious justiciable issue?
• There is a need to respond to the concern about the need to carefully allocate scarce judicial resources and is in
part based on the well-known “floodgates” argument.’ (DTES)
Does the party bringing the action have a real stake or a genuine interest in its outcome?
• The second underlying purpose of limiting standing relates to the need for courts to have the benefit of contending
points of view of the persons most directly affected by the issue. (DTES)
Is the proposed suit a reasonable and effective means to bring the case to court?
• The third concern relates to the proper role of the courts and their constitutional relationship to the other branches
of government. (DTES)
C. Does the Charter apply? (Section 32)
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within
the authority of Parliament including all matters relating to the Yukon Territory and
Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters
within the authority of the legislature of each province.
Is the claim being brought directly against a government actor?
• If so, the Charter applies. If not, the Charter does not apply (RWDSU Local 580 v Dolphin Delivery).
• The Charter may also apply to inaction (Vriend v Alberta, Dunmore v Ontario). Specifically, the “deliberate choice
not to legislate” can be considered action. The Court said that there is a positive obligation to respect the Charter
both through the government’s actions, and inactions.
• In some cases the Charter confers positive obligations on government. For example, in the case of minority
language rights see (Mahe v Alberta) and (Arsenault-Cameron v PEI); for freedom of association see (Dunmore v
Ontario (AG)).
• If the claim is being brought directly against the state, there is no debate about Section 32 applicability. The Charter
will ordinarily apply to all of a government entity’s actions, and all provincial or federal laws. This includes Ministers,
officials employed in government departments, police officers and other public agents that are subject to ministerial
control or charged with government responsibilities.
• Notably, the Charter is not directly applicable to the courts (Hill v Church of Scientology).
Is the claim being brought against an entity effectively controlled by government?
• Would the government have the power to directly control its operations if it wanted to? (McKinney)
• Look, for example, to governance bodies, decision making protocols, directness of state power (in McKinney they
look to the university’s board, principles of academic autonomy). The fact that something is (1) created by statute
(2) carries out a public function and (3) is government funded may not be enough without direct control or
management by the state.
• Examples of institutions where this might apply:
• Colleges: (Douglas/Kwantlen Faculty Association v Douglas College), (Lavigne v OPSEU)
• Public transportation authorities: (Greater Vancouver Transportation Authority v CFS-BC)
• Examples of institutions where this does not apply:
• Hospitals (Eldridge v British Columbia (AG))
• Universities (McKinney v University Guelph)
•Examples of institutions where this is presently unclear:
• School boards, but see: (Simon Gillies v Toronto District School Board)
• Crown corporations
Is the claim being brought against an institution exercising governmental functions?
• This applies in the case of municipalities (e.g., Godbout v Longueuil), which are governmental because:
• they are run by democratically elected and accountable councils
• they “possess taxing power''
• they are empowered to make laws, to administer them and to enforce them within a territory
• they derive authority from the provinces
• This also applies to:
• Territories (Charter, ss 30, 32)
• Professional bodies: Re Klein and Law Society of Upper Canada; Black v Law Society of Alberta
• It is unclear that this would apply to aboriginal governments and band councils. Their rights arise from different
sources, not necessarily from the authority of federal or provincial governments: inherent rights to self-government,
treaty rights, band council authority under the Indian Act.
If not, is the claim being brought against an institution undertaking (or failing to undertake) a
governmental act?
Is the institution implementing a government program?
• The Charter may still apply where the organization provided services that were in furtherance of a specific
government policy or program. • See for example hospitals when delivering publicly-funded medical services: Eldridge v BC (AG). In that case a
direct connection was found between the government program of healthcare provision and the hospital’s conduct. Is the institution exercising statutory powers of compulsion?
• See for example an adjudicator or tribunal when exercising power conferred by legislation: (Slaight
Communications Inc v Davidson), or (Blencoe v British Columbia (Human Rights Commission)
• There is some lack of clarity regarding private security guards (R v Whatcott — though here they justified actions
using the Trespass Act) or in the case of university disciplinary action against students (Pridgen v University of
Calgary).
D. What is the actual statutory provision, regulation, or government
action in question?
• Sometimes the government act is actually a cancellation of a program (e.g., PHS), done with some degree of
ministerial discretion or on an arbitrary basis.
Is this summary helpful? Make a small donation to Head & Hands.
Does the impugned action infringe upon the plaintiff’s freedom of
religion as guaranteed in Section 2(a)?
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion; (…)
The test is set out in Amselem, Loyola, etc.
Does the plaintiff have a practice or belief, having a nexus with religion which calls for a particular
line of conduct?
• The practice or belief may be either objectively or subjectively obligatory or customary, or linked to the individual's
spiritual faith, irrespective of whether it is part of official dogma or in conformity with the beliefs of religious officials.
(Amselem)
If so, is the plaintiff sincere in his or her belief?
• Assessment of sincerity is a question of fact that can be based on criteria including the credibility of a claimants
testimony, as well as an analysis of whether the alleged belief is consistent with his or her other current religious
practices. (Amselem)
If so, has the action interfered objectively and in a more than trivial or non-substantial manner
with the exercise of the right so as to constitute an infringement upon the plaintiff’s freedom of
religion?
• This can either be purposive, or through its effects.
• For example, in Big M Drug Mart, there was an explicit legislative imposition of a religious provision through the
Lord’s Day Act.
• Similarly, in Mouvement laïque quebécois v Saguenay, the recitation of the prayer at the council’s meetings was a
use by the council of public powers to manifest and profess one religion to the exclusion of all others. (Recent SCC
decision)
• The discrimination can also be indirect: for example, in Amselem a seemingly neutral rule made it impossible for
individuals to practice their faith. This is even more explicit in Loyola where it is reiterated that the state cannot
prevent individuals from fully participating in their religion (“right of free exercise”).
• This has to be “substantial” and “non-trivial.” This line of reasoning was argued in Loyola, but the Court found that
interference was substantial based on evidence produced to the trial court: the fact that religious tenets were at the
core of Loyola’s teaching approach in all courses had a pronounced impact.
Does the impugned action infringe upon the plaintiff’s freedom of
expression as guaranteed in Section 2(b)?
2. Everyone has the following fundamental freedoms: (…)
(b) freedom of thought, belief, opinion and expression, including freedom of the
press and other media of communication; (…)
The test is set out in Irwin Toy.
Was the plaintiff's activity within the sphere of conduct protected by freedom of expression?
• An activity can be expressive if conveys or attempts to convey meaning – provided it is not violence (Irwin Toy). It
includes expressive acts, like union picketing (Dolphin Delivery). Threats of violence may be considered expressive
(R v Keegstra).
• The “freedom of expression” guaranteed by s. 2 (b) of the Canadian Charter includes the freedom to express
oneself in the language of one’s choice. 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. Language is not merely a means or medium of expression; it colours the content and meaning of
expression. It is a means by which a people may express its cultural identity. (Ford)
If so, was either the purpose or effect of the government action or regulation to restrict
expression?
• Purpose of regulation: i.e., is the law or regulation content-based (“you can’t talk about birth control”), or viewpointbased (“you can’t promote birth control”)? (R v. Keegstra: legislation which specifically criminalizes hate speech)
• Where the law’s purpose is to restrict protected expressive activity, the law will “automatically” violate s 2(b) (Irwin
Toy).
• Effects that violate freedom of expression: i.e., does the law or regulation appear to have a neutral purpose but in
fact limits speech? (e.g., “no one shall hand out pamphlets on Parliament Hill to prevent littering”) (Montreal v.
2952-1366, legislation limiting street noise)
• Where the law’s effects are a restriction of protected expressive activity, the plaintiff must demonstrate that the
restricted expression advances one of the core values underlying the guarantee (Irwin Toy).
1. seeking and attaining the truth
2. participation in social and political decision-making
3. self-actualization, individual self-fulfillment
Does the impugned action infringe upon the plaintiff’s life, liberty, or
security of the person as guaranteed in Section 7?
7. Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of
fundamental justice.
See Carter, Canada (AG) v PHS Community Services Society, and Canada (AG) v Bedford for
modern developments in the doctrinal test.
• Fundamental justice is more than a procedural right and goes beyond the enumerated examples from Sections 8 to
14. It also protects substantive rights (Motor Vehicles). Note its relationship to the constitutional principle of “rule of
law” (Preamble, Secession, etc.)
Does the impugned action interfere with life, liberty or security of the person?
Life: Does the impugned action impose death or an increased risk of death on a person, either
directly or indirectly?
• This right is normally only engaged by the threat of death (Chaoulli, PHS). In short, the case law suggests that the
right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either
directly or indirectly. (Carter, Rodriguez)
Liberty: Does the impugned action interfere with the right to fundamental personal choices free
from state interference?
• Liberty protects “the right to make fundamental personal choices free from state interference” (Blencoe v. BC HRC)
• Liberty is also invoked whenever the risk of imrisonment applies: for example, in PHS, the staff at Insite could be
charged criminally and potential imprisonment for their work. Same with Motor Vehicles Act.
• In Morgentaler, Justice Wilson’s analysis of the meaning of liberty included the right to make fundamental decisions
about intimate dimensions of one’s life. This may also be captured in “security of the person” (bodily autonomy).
• In some cases there may be less than an absolute prohibition, but a series of procedural constraints that restrict the
freedom (e.g., the wait time for therapeutic abortion panels in Morgentaler)
Security of the Person: Does the impugned action interfere with an individual's physical or
psychological integrity, including by causing physical or serious and profound psychological
suffering?
• Security of the person encompasses “a notion of personal autonomy involving control over one’s bodily integrity
free from state interference.” (Carter).
• It is engaged by state interference with an individual’s physical or psychological integrity, including any state action
that causes physical or serious psychological suffering (Carter)
• State inaction may also be found to cause serious state imposed psychological harm: for example, refusal to
provide legal aid to parents who have had custody of their children suspended was found to violate security of the
person in this way (New Brunswick v. G(J))
• It consists of intimate rights to privacy of the body and its health and of the right protecting the “psycho- logical
integrity” of an individual. This is engaged in Morgentaler (reproductive rights), Rodriguez and Carter (dying and
death), PHS Insite (addiction and safe drug use) and Bedford (sex work).
If so, is there a sufficient causal connection between the state-caused effect and the prejudice
suffered by the plaintiff?
• “A sufficient causal connection between the state-caused [effect] and the prejudice suffered by the [claimant]” is
required for s. 7 to be engaged (Blencoe, Bedford)
• The court has adopted a flexible approach to this. In both Insite and Bedford is the government tries to argue that
the deprivation of life, liberty, or security is as a result of the plaintiff’s own fault (“you wouldn’t suffer the harm if you
weren’t a drug user or sex worker in the first place”). This is rejected.
If so, is the deprivation in accordance with the principles of fundamental justice?
• It is possible for a government act to violate life, liberty, or security of the person without violating fundamental
justice. For example, in Rodriguez this is what the court found.
What is the objective, purpose or state interest of the impugned action?
• In Carter the court warns about formulating this purpose too broadly. Sometimes there is more than one purpose,
try to assess all of them.
• Recall that it is possible for an exercise of discretionary power granted by an otherwise constitutional law to be
unconstitutional (for example, in PHS it was found that while the law was valid, the failure to grant an exemption for
Insite was problematic.
Arbitrariness: Is there a direct, rational connection between the purpose of the law and the
impugned effect on the individual?
• Various formulations: Is the law “necessary” to achieve the objective; is it “inconsistent” with the interest or does it
“bear no relation” to the interest? (see PHS, para 132)
• There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the
limits it imposes on life, liberty, or security of the person. A law that imposes limits on these interests in a way that
bears no connection to its objective arbitrarily impinges on those interests. (Bedford)
• This is connected to the idea of rule of law and vagueness (Nova Scotia Pharmaceutical, Secession).
Overbreadth: Are the restrictions on the individual's life, liberty and security of the person more
broadly framed than necessary to achieve legislative purpose?
• Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its
purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no
rational connection between the purposes of the law and some, but not all, of its impacts. (Bedford)
• The overbreadth inquiry asks whether a law that takes away rights in a way that generally supports the object of the
law, goes too far by denying the rights of some individuals in a way that bears no relation to the object… (Carter)
• Carter was decided on this basis: a blanket prohibition limited the rights of a specific class of people (the terminally
ill, criteria in the case) in a way that violated their rights by forcing them to commit suicide at a time earlier than they
would have for fear that they would be incapable of doing so later.
Gross Disproportionality: Are the law's effects on the individual's life, liberty or security of the
person so grossly disproportionate to its purposes as they cannot be rationally supported?
• Gross disproportionality describes state actions or legislative responses to a problem that are so extreme as to be
disproportionate to any legitimate government interest. The Minister’s decision to refuse an exemption was seen as
grossly disproportionate in PHS, given that there was no discernably negative impact on the public safety as a
result of Insite’s work.
• The rule against gross disproportionality normally applies in extreme cases where the seriousness of the
deprivation is totally out of sync with the objective of the measure. Captured by the hypothetical of a law with the
purpose of keeping the streets clean that imposes a sentence of life imprisonment for spitting. (Bedford)
Parity: Is the punishment proportionate to the wrong?
• In Carter a new principle of fundamental justice was proposed (not adopted) which would require that offenders
committing acts of comparable blameworthiness receive sanctions of like severity. They say the prohibition on
assisted suicide violates this principle because employs the highest possible criminal sanction (homicide), while
exempting other comparable end-of-life practices from criminal sanction. Does the impugned action infringe upon the plaintiff’s right to equality
as guaranteed in Section 15?
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.
The test is set out in R. v. Kapp. See also cases like Whitler, Andrews, Law.
Does the impugned action create a distinction based on an enumerated or an analogous ground,
either through direct differential treatment or through adverse effects?
Enumerated Grounds
• Race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Analogous Grounds
• An analogous ground is one based on “a personal characteristic that is immutable” or “that the government has no
legitimate interest in expecting us to change to receive equal treatment under the law” (Corbiere v Canada
(Minister of Indian and Northern Affairs))
• To determine whether a group can be distinguished on an analagous ground, the court should consider whether a
group is part of a discrete and insular minority and whether there has been historical disadvantage and
stereotyping. (Corbiere) The criteria of “immutability” is less and less important.
• Grounds including sexual orientation, marital status, receipt of child support payments, and citizenship have been
recognized as analogous grounds of discrimination (Withler v Canada (AG)). Once a ground has been found
analogous it is permanently so (Corbiere). • What about family status (Thibaudeau, Shafer)? Should language be recognized or would that undermine the
constitutional language rights scheme? (Lalonde) Poverty isn’t, but should it be (Jackman, Falkiner, Boulter)? • Grounds which are not analogous: employment status or occupation, province of residence, persons charged with
war crimes outside of Canada, marijuana users.
• This approach has been critiqued for failing to recognize intersectional experiences of discrimination (for example,
black men being discriminated against by landlords) and for erasing the victim’s experience by creating new
categories (“domestic workers”) rather than recognizing issues of intersectionality.
Differential Treatment or Adverse Effects
• The court has emphasized that s. 15 of the Charter which sets out the guarantee for equality rights is a guarantee
for “substantive equality.” (Andrews) • In some cases the distinction will be made directly and explicitly on the basis of an enumerated or analogous
ground. This will often occur in cases involving government benefits (e.g., Law, Lovelace, Hodge). In some cases a
group will be intentionally omitted, a form of differential treatment (Vriend).
• In other cases, a purportedly neutral law has a disproportionately negative impact (adverse effects) on a group or
individual that can be identified by factors relating to enumerated or analogous grounds (e.g., deaf patients
Eldridge, female firefighter in BC v BCGSEU, Sheppard).
Is the distinction saved by section 15(2)?
Is the impugned action a law, program or activity?
• This is specifically meant to deal with “affirmative action” type programs (R v Kapp, Cunningham).
Does the impugned law, program or activity have an genuine ameliorative or remedial purpose?
• There must be reasonable evidence and intention for the program to be genuinely ameliorative, not just incidentally
so (R v Kapp). This is to avoid the US tendency to put affirmative action programs under intense scrutiny.
If so, does the law, program or activity target a disadvantaged group identified by the enumerated
and analogous grounds?
• Note that underinclusive programs are allowed (Cunningham): “Section 15(2) affirms that governments may not be
able to help all members of a disadvantaged group at the same time, and should be permitted to set priorities. If
governments are obliged to benefit all disadvantaged people (or all subsets of disadvantaged people) equally, they
may be precluded from using targeted programs to achieve specific goals relating to spe- cific groups. The cost of
identical treatment for all would be loss of real opportunities to lessen disadvantage and prejudice.
• Take for example the Casino Rama agreement to distribute funds to First Nations bands in Lovelace. Just because
non-status Indians and Metis would not benefit, the program should not be abandoned.
If the distinction is not saved by Section 15(2), does it constitute substantive discrimination either
by perpetuating disadvantage or prejudice or by inappropriately stereotyping the excluded group?
A. Does the distinction perpetuate of prejudice or disadvantage to members of a group on the
basis of personal characteristics identified in the enumerated and analogous grounds?
• Note that the Beadle and Pictou Landing case was argued using s. 15 stating that aborginal children denied health
care suffered a race-based prejudice, seeking to establish Jordan’s Principle in practice.
B. Alternatively, does it stereotype on the basis of these grounds in a way that results in a
decision which does not correspond to a claimant’s or group’s actual circumstances and
characteristics?
• For example, discrimination on this basis was found in (Andrews v Law Society of British Columbia) • It is conceivable that a group that has not historically experienced disadvantage may find itself the subject of
conduct that, if permitted to continue, would create a discriminatory impact on members of the group (Whitler v
Canada (AG)).
Purposive and Contextual Factors
• The analysis is contextual, not formalistic, grounded in the actual situation of the group and the potential of the
impugned law to worsen their situation (Whitler v Canada (AG)).
• In making this assessment, the court may consider contextual factors (Law v Canada (Minister of Employment and
Immigration) including:
• (1) Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at
issue.
• (2) The correspondence, or lack thereof, between the ground or grounds on which the claim is based and the
actual need, capacity, or circumstances of the claimant or others.
• (3) The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in
society. (i.e., is the law trying to accommodate someone else?)
• (4) The nature and scope of the interest affected by the impugned law.
• While “human dignity” is no longer a component of the test [R v Kapp] it may still be useful to articulate whether the
impugned action has any bearing on this principle.
• Rigid comparison with a predetermined mirror comparator group has fallen out of favour. Among other limitations it
poses technical problems (“a misidentification of the proper comparator group at the outset can doom the outcome
of the whole s. 15(1) analysis” (Hodge v Canada)), may diminish the capacity for intersectional analysis, and puts
an unfair burden on claimants (Whitler v Canada (AG)).
Does the impugned action infringe upon the plaintiff’s minority
language education rights as guaranteed in Section 23?
23. (1) Citizens of Canada
(a) whose first language learned and still understood is that of the English or
French linguistic minority population of the province in which they reside, or
(b) who have received their primary school instruction in Canada in English or
French and reside in a province where the language in which they received that
instruction is the language of the English or French linguistic minority population
of the province,
have the right to have their children receive primary and secondary school
instruction in that language in that province.
(2) Citizens of Canada of whom any child has received or is receiving primary or
secondary school instruction in English or French in Canada, have the right to
have all their children receive primary and secondary school instruction in the
same language.
(3) The right of citizens of Canada under subsections (1) and (2) to have their
children receive primary and secondary school instruction in the language of the
English or French linguistic minority population of a province
(a) applies wherever in the province the number of children of citizens who have
such a right is sufficient to warrant the provision to them out of public funds of
minority language instruction; and
(b) includes, where the number of those children so warrants, the right to have
them receive that instruction in minority language educational facilities provided
out of public funds.
The Purpose of Section 23
• Section 23 of the Charter is designed to correct past injustices not only by halting the progressive erosion of
minority official language cultures across Canada, but also by actively promoting their flourishing. (DoucetBoudreau, Coulombe) This aggressive promotion is seen as unrealistic by some (Magnet)
• For every school year that governments do not meet their obligations under s. 23, there is an increased likelihood of
assimilation which carries the risk that numbers might cease to “warrant”. If delay is tolerated, governments could
potentially avoid the duties imposed upon them by s. 23. The affirmative promise contained in s. 23 and the critical
need for timely compliance will sometimes require courts to order affirmative remedies to guarantee that language
rights are meaningfully, and therefore necessarily promptly, protected. (Doucet-Boudreau)
• In Mahe, the court acknowledges that one of the purposes of the special protections for linguistic rights in the
Charter is to remedy a history of suppression of linguistic minorities.
• Note the relationship between protection of minority language rights and the constitutional principle of protection of
minorities (Secession). This is recognized by the court in Lalonde, where the preservation of a French-language
hospital was seen as essential to broader language rights issues.
A Sliding Scale of Requirements
• These rights apply if the “numbers warrant,” extent depends on the size & nature of the community.
• In some cases the court can impose positive rights (e.g. Mahe: representative spots on school boards), to provide
resources and facilities to allow minority language education (Marchand, Doucet-Boudreau) or even the creation of
a distinct school board (Manitoba Public Schools). This has been criticized as the work of an overly activist judiciary
(Richards)
G. Is the impugned action justified by Section 1 as a reasonable limit
on the Charter right in question?
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.
This test is set out in R. v. Oakes.
• The burden of proof shifts to the government to demonstrate that the impugned action is a reasonable limit on the
right in question (R v Oakes). They must provide meaningful evidence to substantiate this.
• A contextual approach recognizes that a right or freedom may have a different value depending on the context. For
example, publication of matrimonial rights is not an abstract debate between “freedom of the press” and “privacy
rights,” but rather grounded in the reality of those affected (Wilson J in Edmonton Journal v Alberta).
Is the limit prescribed by law?
• The underlying idea here is that if a right is to be limited, these limits should be public, understood, authorized, with
notice, and sufficiently precise. This idea is connected to rule of law (Secession Reference, Dicey, R v Nova Scotia
Pharmaceutical Society).
• Any infringement of a guaranteed right that results from the actions of a decision maker acting pursuant to its
enabling statute is also a limit “prescribed by law” within the meaning of s. 1. (Multani)
• Where the legislation pursuant to which an administrative body has made a contested decision confers a discretion
and does not confer, either expressly or by implication, the power to limit the rights and freedoms guaranteed by the
Canadian Charter, the decision should, if there is an infringement, be subjected to the test set out in s. 1 to
ascertain whether it constitutes a reasonable limit. (Multani)
• Basically, if the action is not prescribed by law, but rather simply allowed by it (by conferring discretion on an
individual, for example), that power can be exercised in an unconstitutional way and should be evaluated for
whether it constitutes a reasonable limit.
• “Vagueness” can also be raised on the basis that a legal enactment is so vague that it does not satisfy the
requirement that a limitation on Charter rights be “prescribed by law.” This is also connected to the “minimal
impairment” stage (Morgentaler, Oakes, Irwin Toy, Prostitution Reference).
Step 1: Is the law aimed at a pressing and substantial objective?
• The state cannot rely on a purpose different from what animated the law at time of enactment (Big M) but they may
shift their emphasis from one purpose to another (R v Butler)
• The objective to be served by the measures limiting a Charter right must be sufficiently important to warrant
overriding a constitutionally protected right or freedom. The standard must be high to ensure that trivial objectives or
those discordant with the principles of a free and democratic society do not gain protection. (Oakes)
• As a general rule, courts are quite deferential to government objectives are are reluctant to find a failure at this
stage.
• Vriend is an example of where an absence of a law could not be “pressing and substantial” because it actually ran
directly contrary to the purpose of the statute.
• In Big M Drug Mart, the Lord’s Day Act was simply found to be not pressing or substantial enough to justify the
limitation.
• Note that the court is most likely to be deferential where vulnerable social groups are being protected by the
limitation, if there is conflicting social science evidence, or if certain elements seem arbitrary (eighteen as an age for
voting, for example). There is a concern that otherwise, the Charter could be used as a mechanism to roll back
measures to protect vulnerable groups (Irwin Toy).
Step 2: Are the means used in the law proportionate to its objectives?
• The party invoking s. 1 must show the means to be reasonable and demonstrably justified. This involves a form of
proportionality test involving three important components:
1. Is there a rational connection between the limit and the objectives of the law?
• Does the state action make any assumptions? Are those assumptions logical? The measures must be fair and not
arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective. A law
that does not rationally advance the pressing and substantial purpose for which it was enacted is unnecessarily
restricting the right or freedom.
2. Does the law minimally impair the right?
• The means should impair the right in question as little as possible. A law that restricts the right or freedom more
than is actually necessary to advance the pressing purpose can be described as irrational or inefficient.
• Most of the work is done in this section.
3. Do the law's deleterious effects outweigh its salutary ones?
• This element of the test arises from Dagenais v Canadian Broadcasting. There must be a proportionality between
the effects of the limiting measure and the objective: the more severe the deleterious effects of a measure, the
more important the objective must be. This last ”balancing” step rarely plays more than a formal role because most
of the work is done at the stage of minimal impairment or rational connection.
• This is meant to consider where the challenged law may not be completely successful in acheiving the objectives
for which it was enacted (as in Dagenais with a publication ban to ensure a fair trial) • The court is increasingly testing this out (as in R v. Sharpe) where the protection of children posed by a tiny
proportion of pornography could not be justified when weighed against the freedom of expression interests tied to
the remainder.
Notes re: Freedom of Religion s. 2(a) Section 1 Analysis
• The Minister’s decision in Loyola to disallow the religious ERC program was not minimally impairing, and thus not a
reasonable limit on Loyola’s s. 2 (a) right to religious freedom. Basically, the legislative approach had allowed a
flexible framework for exemptions for the court, and the Minister applied them too narrowly and rigidly: a
compromise could have been made.
• Conversely, in Alberta v Hutterian Brethren, the court found the requirement for photo identification on licenses
constitutional. She found that the government’s need to fight fraud was pressing, and because driving was not a
right, their ability to attach conditions to it was legitimate. Here, there was greater deference to the legislative
objective — though there were three dissenting opinions arguing that the photo requirement was not minimally
impairing. • While the Charter did not apply in Trinity Western v BC College of Teachers, it is nevertheless evidence of relatively
strong support for freedom of religion from the court.
• “Religious conduct which would potentially cause harm to or interference with the rights of others would not
automatically be protected. The ultimate protection of any particular Charter right must be measured in relation to
other rights and with a view to the underlying context in which the apparent conflict arises.” (Amselem)
• In some cases, the claimed freedom of religion of some parties runs against the Charter rights of others. For
example in Reference re Same Sex Marriage there was a claim that allowing gay marriage would discriminate
against religious people.
• The minimal impairment analysis bears some similarities to the concept of “reasonable accomodation” that has
developed in anti-disctimination law under human rights codes. This is the idea that often, regulations may not need
to be disposed of entirely, but rather that the state can make exceptions or accomodate in certain cases.
(Bouchard-Taylor)
Notes re: Freedom of Expression, 2(b) Section 1 Analysis
• The court is more likely to uphold limits on freedom of expression when that speech strays from the “protected core”
of expressive acts. This is obvious in the hate speech cases, but is also the case regarding commercial expression:
Irwin Toy; Montreal v. 2952-1366.
• Hate speech, as in Keegstra and Whatcott, must be beyond offensive or ugly. It must “be restricted to those
extreme manifestations of the emotion described by the words detestation and vilification. This filters out expression
which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that
risks causing discrimination or other harmful effects.” (Whatcott)
• The court also considers the character of the audience, the historical context of the speech and its potential effect
(Mugesera), including whether it is likely to expose the targeted person or group to hatred by others (it made a
difference that Keegstra, Kempling and Ross were all school teachers). By contrast, their intention isn’t relevant
(Whatcott).
• Irwin Toy is likely the “high water mark” for the court’s deference to the legislature. The acceptance of a ban on
advertising toward children is in part connected to the commercial nature of Irwin Toy’s intended expression, and
the fact that advertisers would always be able to sell to adults. The effects of the ban, said the Court, were not so
severe as to override the objective of the ban.
• Moon suggests that there is an unduly individualistic approach where speech should be understood in collective,
social dimension, as relational, and that speech operates in community. “The focus of these accounts on the
different interests of the speaker and the listener misses the central dynamic of the freedom, the communicative
relationship, in which the interests of speaker and listener are tied.” • The location of the expressive activity (“how or where it is delivered”) may limit its protection if it undermines the
values which underlie the guarantee (Montreal v. 2952-1366)
• Contextual approach required: For example, publication of matrimonial rights is not an abstract debate between
“freedom of the press” and “privacy rights,” but rather grounded in the reality of those affected (Wilson J in
Edmonton Journal v Alberta). There, the restrictive ban on publication was found to result in a very substantial
interference with freedom of expression and significantly reduces the openness of the courts in a way that could not
be proportionally justified on the basis of hypothetically violated privacy (that had waned historically in importance).
• For example, in Edmonton Journal, the restrictive ban on publication was found to result in a very substantial
interference with freedom of expression and significantly reduces the openness of the courts in a way that could not
be proportionally justified. (fails on minimum impairment)
• In Ford, the court balanced feedom of expression against the legislative objective of promoting the French language
and found an outright ban unacceptable on the minimal impairment basis. However, they said the predominant
display of the French language, would be proportional to the goal of promoting and maintaining a French “visage
linguistique” in Quebec.
• In terms of speech which does reputational damage, the court seemed unconvinced that defamation law had a
chilling effect on criticism of public officials (Hill).
Notes re: Life, Liberty, Security s. 7: No Section 1 Analysis
The standard of fundamental justice imposes a stricter test than section 1. Thus, any law which violates the principles
of fundamental justice will most likely not be justifiable in section 1.
Notes re: Equality Rights s. 15 Section 1 Analysis
• The contextual factors analysis reduces reliance on Section 1, but we proceed with the test anyway.
• In Andrews the test failed on the basis of a rational connection: the requirement of citizenship was not logically or
rationally connected way to ensure lawyers were familiar with Canadian law.
• The minimal impairment analysis bears some similarities to the concept of “reasonable accomodation” that has
developed in anti-disctimination law under human rights codes. This is the idea that often, regulations may not need
to be disposed of entirely, but rather that the state can make exceptions or accomodate in certain cases.
(Bouchard-Taylor)
• A similar observation was made in Eldridge : the hospital had an obligation to accomodate the deaf patients (almost
like a “reasonable accomodation” argument). Employers have a similar duty to accommodate their employees (BC
v BCGSEU, Sheppard).
• Think about Auton v BC: unlike in Eldridge, there is no obligation to accommodate in unlimited ways. In this case,
the controversial autism therapy was not deemed “medically required” (but rather experimental and emerging) and
thus not part of the core medical treatment the state is obligated to provide.
• What is the role of cost in deciding an equality rights case? Think to the David Lepofsky video, which highlights the
fight of people with disabilities for Charter rights. The mention of cost as a rationale to exclude disability as a
protected ground in s. 15 is addressed explicitly. Is this question ever legitimate? Do we ask it about any other
groups? • What is the relationship between the unwritten constitutional principle of protection of minorities (Secession) and
equality rights?
I. Remedies (Section 24, Section 52)
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.
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.
• From Doucet-Boudreau v Nova Scotia, principles for an appropriate and just remedy, s. 24:
1. Meaningfully vindicates the rights and freedoms of claimants.
2. Employs means which are legitimate within framework of constitutional democracy.
3. Vindicates the right while invoking the function and powers of a court (institutional competence).
4. Fair to party against whom the order is made.
5. May need novel or creative remedies — “what is appropriate an just in the circumstances.”
• Section 24 remedies can come in the form declaratory relief (e.g., Little Sisters, Eldridge, Doucet-Bourdreau) or
injunctive relief (An injunction is a court order).
• Section 24 is broader and more powerful than Section 52. Among other things, section 24 seems to give judges the
power to place positive obligations upon a government, as well as to enforce more imaginative remedies. Examples
include Insite, where the court ordered a program reinstated.
• Section 52, on the other hand, allows the courts only to invalidate laws or parts of laws for breaches of the
constitution (including the Charter). (Schaechter)
• Section 52 remedies may include:
1. Declaration of invalidity, striking a law down (Big M)
2. Declaration of partial invalidity
a) Severance (Morgentaler, Bedford, Carter, where a section of the Criminal Code is struck down)
b) Reading in (Vriend, Schachter)
3. Reading down (interpreted not to apply) (McKay)
4. Temporary suspension of order (Manitoba Language Rights, Bedford, Carter)
• Note that section 24 remedies are not available for Section 35 violations (Hogg and others have argued that this is
problematic)
H. Does the impugned action infringe upon the plaintiff’s existing
aboriginal or treaty rights as recognized in Section 35 of the
Constitution Act, 1982?
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of
Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis
peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now
exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights
referred to in subsection (1) are guaranteed equally to male and female persons.
A Purposive Approach to Section 35
• Section 35 must be applied in a way which fulfills its underlying purpose, namely: “the protection and reconciliation
of the interests which arise from the fact that prior to the arrival of Europeans in North America aboriginal peoples
lived on the land in distinctive societies, with their own practices, customs and traditions” (R. v Van der Peet).
• “Existing" aboriginal rights refer to all those which were not extinguished prior to the introduction of the 1982
Constitution. In R. v Sparrow, the Court rejects the narrow, frozen interpretation of aboriginal rights as solely those
which were being exercised in 1982. The government must demonstrate a "clear and plain" intention to extinguish
the right (R. v Sparrow).
• The fact that aboriginal rights exist outside of the scope of the Charter may be interpreted in different ways,
including allowing for the possibility of self-government (aboriginal rights existing as a collective, rather than
individual right).
• Note also that while aboriginal rights cannot be limited by Section 1 or 33 of the Charter, other mechanisms to limit
such rights have been developed in parallel
Is the plaintiff seeking to exercise a practice, custom or tradition integral to the distinctive culture
of the aboriginal group claiming the right?
Aboriginal Rights
• Building on R. v Sparrow, the court has laid out a series of factors to be considered when determining whether a
practice, custom or tradition is integral to the distinctive culture of the aboriginal group claiming the right (R. v Van
der Peet).
1. Courts must take into account the perspective of aboriginal peoples themselves
2. Courts must identify precisely the nature of the claim being made in determining whether an aboriginal
claimant has demonstrated the existence of an aboriginal right (here, they make a distinction between selling
fish generally, and selling it “on commercial basis”)
3. In order to be integral a practice, custom or tradition must be of central significance to the aboriginal society
in question
4. The practices, customs and traditions which constitute aboriginal rights are those which have continuity with
the practices, customs and traditions that existed prior to contact (note that this is highly problematic;
Burrows and others have argued that this criteria treats indigenous peoples as a “frozen” culture)
5. Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating
aboriginal claims (for example, consider the power of oral history in Delgamuukw)
6. Claims to aboriginal rights must be adjudicated on a specific rather than general basis
7. For a practice, custom or tradition to constitute an aboriginal right it must be of independent significance to
the aboriginal culture in which it exists
8. The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not
require that that practice, custom or tradition be distinct
9. The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice,
custom or tradition is only integral because of that influence
10. Courts must take into account both the relationship of aboriginal peoples to the land and the distinctive
societies and cultures of aboriginal peoples
• In Gladstone, this test was used to recognize the Heiltsuk’s pre-existing right to sell herring spawn commercially.
• In Mitchell, this was used to limit a Mohawk man’s right to cross the Canada-US border without paying duty, as he
was unable to demonstrate that importation was “an integral part” of the band’s distinctive culture.
• This test is criticized by Borrows and others as being “retrospective.”
• What is deeply problematic about the test set out in Van der Peet and which plays out in Gladstone later (as well as
in R v NTC Smokehouse) is the “frozen rights” approach rejects the ability for aboriginal rights to be exploited
commercially (in fact, similar to Mitchell as well). Aboriginal “culture” for many Nations is a “process rather than a
thing” (Barsh and Henderson).
Metis Rights
• The court has laid out a series of factors to be considered when determining whether a practice, custom or tradition
is integral to the distinctive culture of a Metis group claiming a right (R. v Powley) based on a modified application of
the criteria set out in (R. v Van der Peet).
1. Characterization of the right (aboriginal and Metis rights are contextual and site-specific: “the right to hunt for
food in the environs of Sault Ste. Marie”)
2. Identification of the historic rights-bearing community
3. Identification of the contemporary rights-bearing community
4. Verification of the claimant's membership in the relevant contemporary community (determined on proof of
self-identification, ancestral connection, and community acceptance)
5. Identification of the relevant time frame ("pre-contact" as in Van der Peet doesn't apply here for Metis people;
instead the test is rooted in the time frame where the Metis community arose and before it came under the
control of European laws and customs)
6. Determination of whether the practice is integral to the claimants' distinctive culture
7. Establishment of continuity between the historic practice and the contemporary right asserted
8. Determination of whether or not the right was extinguished
9. If there is a right, determination of whether there is an infringement
10. Determination of whether the infringement is justified (note that conservation is often a rationale used to
justify limits on aboriginal rights to land)
Is there a prima facie interference?
• The onus of proving a prima facie infringement lies on the individual or group challenging the legislation (R. v
Sparrow) But why? (they were there first! Calder)
Does the legislation results in a meaningful diminution of the right?
• (Gladstone) As discussed in Sparrow, the Court suggested that the following three factors will aid in determining
whether such an infringement has occurred: (1) whether the limitation imposed by the legislation is unreasonable;
(2) whether the legislation imposes undue hardship; and (3) whether the legislation denies the holders of the right
their preferred means of exercising the right.
If a prima facie interference is found, is the limitation justified?
• Here, the onus is on the government (Tsilhqot’in Nation).
First, is there a compelling and substantial legislative objective?
• For example, in Tsilhqot’in Nation, the court pointed out that there was insufficient evidence to support the
government’s stated objective, including claims about the economic benefits of logging in the claim area or the need
to prevent the spread of a mountain pine beetle infestation.
• The government’s justification is often along the lines of a need for natural resource management (Sparrow) which
leans in against the fact that many aboriginal rights claims are for natural resources.
• In Gladstone, the court allows for “compelling objectives” to include economic development and regional fairness.
Did the government comply with its procedural duty to consult with the right holders and
accommodate the right to an appropriate extent at the stage when infringement was
contemplated?
• The Crown is not under a duty to reach an agreement; rather, the commitment is to a meaningful process of
consultation in good faith. The effect of good faith consultation may be to reveal a duty to accommodate. (Haida
Nation)
• The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the
principle of the honour of the Crown, which must be understood generously. (Haida Nation)
Is the benefit to the public is proportionate to any adverse effect on the Aboriginal interest?
• Infringements of aboriginal rights have been weighed more seriously in recent years (Tsilhqot’in Nation) and this
final balancing stage is part of that.
• Aboriginal rights are not to be examined as an individual’s right to a particular resource, but rather the court should
examine the significance of the resource to the community as a whole (R v Sappier, R v Gray).
Note re: Aboriginal Title and Duty to Consult
• The test for establishing title in Delgamuukw/Tsilhqot’in First Nation: In order to make out a claim for Aboriginal title,
the Aboriginal group asserting title must satisfy the following criteria:
1. Sufficiency of occupation (a context-specific inquiry, looking to use, occupation, oral history, structures,
relationship with territory) 2. Continuity of occupation (does not require an unbroken chain) 3. Exclusivity of occupation (the intention and capacity to retain exclusive control, even if others do use parts of
territory)
• Similarly, the Crown can override Aboriginal title in the public interest (Tsilhqot’in Nation)
1. the Crown must have carried out consultation and accommodation; 2. the Crown's actions must have been supported by a compelling and substantial objective; and
3. the Crown's action must have been consistent with its fiduciary obligation to the Aboriginal body in question.
(Beckman v Little Salmon/Carmacks)
• Note that the duty to consult is external to the Treaty (it does not need to be some explicit part of an agreement)
and is required to uphold the honour of the Crown, furthering the ultimate goal of reconciliation. (Beckman v Little
Salmon/Carmacks)
• This “compelling and substantial objective” limitation is similar in principle to the Gladstone criteria.
• What is the difference between a major infringement and extinguishment? (in cases of megaprojects, dams,
hydroelectric, fracking, pipelines, etc.) Does autonomy end wherever convenient? (Delgamuukw)
Is this summary helpful? Make a small donation to Head & Hands.