Sum Con Law Fin

Constitutional Law of Canada 1
APPLICABILITY...........................................................................................................8
THE INTERJURISDICTIONAL IMMUNITY DOCTRINE.....................................8
Majority (Ritchie): .......................................................................................................30
Provision is preventative and regulatory rather than penal and therefore acceptable
under provincial head of power – province can regulate local trade (intraprovincial)
and can set its own standards;........................................................................................30
Province can entrench on areas of morality as long as pith and substance is regulatory.
........................................................................................................................................30
Morality and criminality are far from co-extensive  provincial legislation which
establishes and enforces a local standard of morality does not necessarily invade the
federal criminal law power............................................................................................30
(Separation of powers and respect for federalism underlie the majority judgment) ....30
SECTION 35 – THE CONSTITUTIONAL ENTRECHMENT OF ABORIGINAL
RIGHTS.........................................................................................................................37
R v. Sparrow [1990] SCR – page 532........................................................................37
R. v. Van der Peet (1996) – page 545........................................................................39
4 stages of Charter analysis...........................................................................................55
I. Interpreting Rights.....................................................................................................56
A. Purposive Approach..............................................................................................56
B. Aids to / Sources of Interpretation...........................................................................57
II. Defining Limitations: Section 1 – page 748.............................................................58
A. Prescribed by Law.................................................................................................59
B. Justification...........................................................................................................60
III. The Override/Notwithstanding Clause (s.33) – page 775.......................................65
The Application of the Charter – page 781...................................................................66
II. Governmental Action – page 786.............................................................................67
A. Governmental Actors ...........................................................................................67
2) It exercises governmental functions: Godbout 1997 SCC (795)..............................69
B. Governmental Acts...................................................................................................69
III. Government Inaction..............................................................................................70
IV. Application of the Charter to Courts and the Common Law..................................71
Purposes of s.2(b)...............................................................................................................75
Means of Restricting Expression...............................................................................76
Establishing a Violation of s.2(b) .............................................................................76
S. 2(b) Analysis – breakdown from Irwin Toy 1989 SCC at 908......................................76
1. does the activity at issue convey a meaning in a non-violent form? if so, ...............76
2. is the purpose or effect of the impugned government action to control expression by
reference to its content? if so, violation established; ....................................................76
S. 1 Analysis......................................................................................................................76
section 1: contextual analysis.....................................................................................76
Dolphin Delivery SCC 1986 – page 901...................................................................77
Commercial Expression................................................................................................77
Irwin Toy 1989 SCC – page 907...............................................................................78
RJR-MacDonald SCC 1995 (920).............................................................................78
R. v. Banks Ont CA 2007..........................................................................................79
Controls on Election Spending..................................................................................87
Libman 1997 SCC – page 990...............................................................................87

Note on Publication Bans...........................................................................................87
Thomson Newspapers 1998 SCC (note 4, page 1001)..........................................87
To qualify as a principle of fundamental justice, a principle must:..............................89
What principles have been determined NOT to be principle of fundamental justice?. 90
Flora v. Ontario 2007 Ont. SCJ.............................................................................93
Charkaoui SCC 2007...........................................................................................100
Manitoba..................................................................................................................110
Patriation..................................................................................................................111
Re Manitoba Language Rights [1985] 1 S.C.R. 721 (P371)...................................111
Manitoba……………………………………………………………………………….113
PART 1 -- FEDERALISM
VALIDITY
Pith and Substance - Swinton (Page 205)
S. 91 – Federal powers
S.92 – Provincial powers
Two competing interpretations:
1) Federal powers are “general” in scope as indicated by the POGG, unlimited by

anything except the list of provincial powers (the classes of s.91 are only
illustrative) – Bora Laskin took this position
2) Federal powers are found in the classes of s.91 and the POGG powers are only
residuary, to be used in cases where matters are not clearly assigned to either the
federal or provincial branches – professors Lysyk and Lederman took this
position
In fact, the courts do give primary effect to the enumerated powers, using POGG only in
limited circumstances (second interpretation above).
Choosing between competing classifications (page 206)
Three steps described by Abel:
1) identification of the matter of the statute,

2) delineation of the scope of the competing classes
3) a determination of the class into which the challenged statute falls
This is problematic in practice since the characterization of the matter (step 1) may be
affected by a judge’s view of the appropriate class it should fall under (step 3), thus
creating the possibility for judicial bias.
Step 1: Identification of the matter of the statute

Judges look at:
- the statutory context

- purpose of the legislation (legislative history, government reports re: problems
which triggered the legislation in the first place)
- the effects of the legislation
- Some judges give more weight to the effects, others to purpose.

- There is no uniform guideline as to when one approach should be preferred over
the other.
- The dominant form of inquiry is into purpose (the extent to which a court if
deferential to legislative purpose notwithstanding legislative effects, allows
governments to expand their areas of responsibility
Step 2: the scope of the classes of legislative subjects
- despite reference to “exclusivity”, ss. 91 and 92 open the possibility for

overlapping legislation since the constitution refers to classes rather than persons
or activities
- classes are not watertight categories, rather they are porous: using different
classes of power, both the federal and provincial governments can address the
same issue: the double aspect doctrine
- precedent and history play important roles in determining the scope of classes
Step 3: determining the class in which the challenged status falls
- Since there are no fixed guidelines, this is often dictated by the judge’s own
personal views
- Lederman: judges should weigh uniformity and diversity and should follow
widely prevailing beliefs; absent such beliefs, it is basically up to the judge’s best
judgment (see page 207 quote)
Many claim that there is no single prevailing belief, rather only competing perspectives
based on personal views re: federalism, its ideal character and the “proper” balance
between central and local control.
Starr v. Houlden (page 212)
Approach to characterization:
- identify the matter of the law by finding its dominant feature (its “pith and
substance”)
o “pith and substance” is found by examining the purpose and effect of the
law
o Consider legislative scheme, precedent and a “concept of federalism”
- Assign the newly determined “pith and substance” under a specific class (s.91 or
92)
R. v. Morgentaler (page 213)
Is the Nova Scotia Medical Services Act provincial health regulation -s.92(7), (13) and
(16)- or is it federal criminal law –s.91(27)?
Purpose and Effect:
-Look at the law itself and the EFFECTS to get a sense of the PURPOSE
- Strict Legal Operation - legal effect of legislation (the way it affects rights and
liabilities of those subject to it) is a good indicator of its purpose (even if this is
not fully intended or appreciated by the enacting body)
- Social/economic purposes, background of statute, circumstances surrounding
enactment, practical effect of the legislation in operation
Extrinsic Materials:
- related legislation
- the problem meant to be addressed by the law
- legislative history (Hansard increasingly accepted to establish background and
purpose)
- materials the legislature had before it when the statute was enacted
Sopinka:
Considered: the text of the legislation, the events leading up to its enactment, related
policy documents prepared by the government, statements made in the legislature, the
law’s effects, plausibility of its stated purpose
Concluded:
- primary aim of legislation was suppressing abortion clinics which has historically
fallen under the federal criminal law powers (repealed s.251 of CC)
- any concerns with health care policy, emergence of two-tiered health system etc
were only ancillary to the main purpose of prohibiting abortions outside hospitals
- law is Ultra Vires since its “pith and substance” is regarding criminal law
(Criminal law defined for the purposes of the division of powers by Sopinka as
any law that has as its dominant characteristic the prohibition of an activity,
subject to penal sanctions, for a public purpose such as peace, order, security,
health or morality).
Colourable legislation: on its face addresses matters that are within a particular
legislation’s jurisdiction, but in “pith and substance” is directed at matters outside its
jurisdiction. Reference re Firearms Act: “where the effects of the law diverge
substantially from the stated aim, it is sometimes said to be “colourable”. (page 224)
-Meaning, the law is not what it says it is
Walter v. AG Alberta is an example of a case where the court focused on the legislative
text and did not look at legislative history, social facts, absence of plausible intra vires
legislative purpose etc.  the law in Walter was found intra vires.
Necessarily Incidental (aka “ancillary doctrine”)
-The dominant characteristic of the law could be provincial, but the effects can have
impact on matters outside the province’s jurisdiction
 NI doctrine is used in cases where the provision being challenged is part of a larger
scheme of legislation. When impugned provision is examined in isolation, it appears
to intrude into jurisdiction of other government. However, if larger scheme of which
the impugned provision is a part is found constitutionally valid, the impugned
provision may also be found valid because of its relationship to the larger scheme
 This will depend on how well the offending provisions are related into the valid
scheme - if not closely related, provision will be severed and declared invalid; if
closely related, will be declared necessarily incidental to the valid scheme and the law
as a whole will be upheld
 permits governments to intrude substantially on other level of government so long as
most imp features of their laws remain within jurisdiction.
 NI Doctrine holds that, if the P and S of legislation fits within a particular head of
power, portions of that act may nevertheless exist outside that head of power, so long as
those portions are necessarily incidental to the act as a whole
General Motors of Canada Ltd. v. City National Leasing (1989) SCC (page 225)
(Example of Necessarily Incidental Doctrine)
Facts:
• CNL brought civil action against GM alleging it suffered losses as result of
discriminatory pricing policy that was prohibited under s. 33 of the Combines
Investigation Act.
• GM argued that s. 33.1 of Combines Investigation Act (CIA) was beyond jurisdiction
of Parliament, since the creation of civil causes of action falls within provincial
jurisdiction in relation to “property and civil rights”
Issue: Should CIA provision be severed and struck down because it invades provincial
jurisdiction over property and civil rights?
Analysis <TEST FOR NECESSARY INCIDENTAL DOCTRINE>:

Steps to take when a constitutional challenge focuses on a single provision of an
Act/Scheme:
1) Is the Act as a whole valid? (if NO, statute will be struck down)
2) If so, is the offending provision, viewed in isolation, valid? (in P/S, is it within the
jurisdiction of enacting government?)
3) If not, to what degree does it intrude on the other level of government’s jurisdiction?
4) Is the offending provision sufficiently integrated within the valid scheme, such that it
can be upheld by virtue of that relationship? (This requires considering the seriousness of
the encroachment on provincial powers, in order to decide on the proper standard for
such a relationship).
Application to the impugned provision:

• S. 31.1 creates a civil right of action, therefore not difficult to conclude that the
provision does appear to encroach on provincial power to some extent
• Creation of civil actions is generally a matter within provincial jurisdiction under
s. 92(13) of CA 1867
• Yet, s.31.1 is only a remedial provision – it’s purpose is to help enforce
substantive parts of the Act, but it is not in itself a substantive part of the Act
• Remedial provisions are less intrusive vis-à-vis provincial powers
• Also, limited scope of the action – s. 31.1 does not create a general cause of
action; it’s application is carefully limited by the provisions of the act
• Also, fed. government is not constitutionally precluded from creating rights of
civil action where such measures may be shown to be warranted
• Therefore, necessary link between s. 31.1 and the Act exists – the provision is
functionally related to the general objective of the legislation, and to the structure
and content of the scheme
Ratio: Although the provision represents an infringement on provincial powers, the court
held that this encroachment was necessarily incidental to the main objectives of the
legislative scheme in which the provision was couched. Since the provision represented a
minimal infringement on provincial powers, and was functionally related to the
objectives and structure of the scheme as a whole, the provision was upheld as applicable.
Double Aspect Doctrine (Page 231)
- Subjects that fall within provincial jurisdiction may in another aspect fall within
federal jurisdiction, and vice versa (Doctrine was first set forth in Hodge v. the
Queen).
- DOUBLE ASPECT allows for overlapping federal and provincial matters, each
dealing with a different aspect of the concrete subject matter affected.
- Allows for more overlap between federal and provincial statutes than NI Doctrine
- Takes NI doctrine a little further.
- By their nature, some subjects may have a dual nature (i.e., driving in relation to
Licensing (provincial) and drinking (fed under criminal law)
Multiple Access Ltd. v. McCutcheon (1982) SCC (page 232)

(Example of Double Aspect Doctrine)
- Facts: The Ontario Securities Act prohibited insider trading in shares trading on the
Toronto Stock Exchange. The Canada Corporations Act had almost identical
provisions, applicable to corporations incorporated under federal law.
- Claim against the defendants was based on Ontario legislation, because the limitation
period had expired under the Federal statute only.
- The defendants, the alleged insider traders, argued that the Ontario statute could not
validly apply to their case because the regulation of trading in shares of federally
incorporated companies fell within exclusive federal jurisdiction. Alternatively, they
relied on the doctrine of paramountcy to assert that the Ontario provisions were
rendered inoperative, in the case of insider trading in a federally incorporated
company, by the provisions of the Canada Corporations Act which dealt with the
same issue.
- Issue: Are the Canada Corporations Act, or the Ontario Securities Act, ultra vires the
powers of Parliament or the Ontario legislature, respectively?
- Decision: Both sets of statutes are applicable and operative under the double aspect
doctrine. The claim against the defendants is constitutional.
- Analysis:
• Court determined the P&S of both the federal and provincial legislation: The
federal insider trading provisions were deemed valid as their P&S was held to be
in relation to the regulation of federal corporate structure, criminal law s. 91.27,
and the power to incorporate companies s. 91 (opening words)
• The provincial insider trading provisions were held to be valid in P&S, as they
related to the securities trade, which comes within “property and civil rights” s.
92.13
• Ratio: Double aspect doctrine rendered both sets of provisions operative, as the
provisions were of roughly equal importance and demonstrated no apparent
conflict.
Class Comments:
- The court recognized that there are dual aspects to certain things; there is no point
in trying to create boxes within ss. 91, 92 which are completely self-contained.
This will lead to gaps in the legislation where no one can regulate. Must be
flexibility built into the constitutional framework.
o Example of dual, concurrent governmental powers over certain sectors,
HEALTHCARE. Federal government allocates funds, places restrictions
on the uses of these funds and the development of private alternatives.
Provincial government determines “medically necessary” services, has
control over administration and development of hospitals.
- The federal government has effectively gained power over healthcare, largely
through the POGG clause.
B. Ryder "The Demise and Rise of the Classical Paradigm in Canadian Federalism:
Promoting Autonomy for the Provinces and First Nations" (page 237)
-Classical approach is to keep them in boxes and make 91 and 92 more exclusive
-Modern approach is more overlap between prov. and fed. jurisdictions
1) The Classical Paradigm has been applied to legislation that is viewed as

interfering with the operation of free markets
-To keep free markets functioning properly, there is a big divide between
federal and provincial heads of powers to make sure the law functions
properly
2) The Modern Paradigm has been applied to legislation perceived to deal with
issues of morality and social order
APPLICABILITY
THE INTERJURISDICTIONAL IMMUNITY DOCTRINE
-Where a provincial law deals with a legitimate provincial subject matter but incidentally
affects the CORE of a federal subject matter, the provincial law will be READ DOWN so
as to confine the law to matters that do not affect the core of the federal legislation.
Operates only upon provincial statutes & only with regards to major federal areas (areas
of applicability are defined by the Common Law):
o Federal works and undertakings,
o Federally incorporated companies,
o Banking
o Elections
o Aboriginal rights and title
Interjurisdictional Immunity doctrine – The conceptual opposite of the Double Aspect

Doctrine
 doctrine of INTERJURISDICTIONAL IMMUNITY constitutes a departure from
tendency to create overlapping jurisdiction, and is a doctrine that emphasizes
exclusivity of jurisdiction. Comes into play in situations where a provincial law is
clearly valid in most of its applications, but in some of its applications it arguably
overreaches, affecting a matter within fed jurisdiction
 in those circumstances where the doctrine of interjurisdictional immunity applies,
provincial laws are not allowed to have even an incidental effect on matters falling
within federal jurisdiction, and there is no double aspect to the matter regulated.
Commission de la Sante et de la Securite du Travail v. Bell Canada (Bell #2) (1988)

SCC - Page 246
(An Example of Interjurisdictional Immunity)
Facts:
- Quebec legislature enacted law which required employers to reassign pregnant
workers who were working in video terminals.
o This was a legitimate use and application of provincial powers. Provincial
health and safety laws are valid under the provincial head of power;
without question, the legislation falls within s. 92.
- Bell Canada, a Federal undertaking, refused to abide by the provincial regulations.
Issue: Whether provincial occupational health and safety laws (within the sphere of s. 92)
could apply to a federal undertaking. Specifically, is Bell Canada, an interprovincial
telephone company, bound by a Quebec law that requires protective reassignment of
pregnant workers who work with video monitors?
Decision: Applying the IjI doctrine, SCC held that federally regulated undertakings are
immune from provincial health laws. Provincial law was constitutionally incapable of
applying to the federal undertaking, and had to be read down so that it did not apply to
the federal undertaking
-So the provincial is completely valid, but does it apply to employees of a federal
company
Analysis: Court held that the law was of a general undertaking – but affected the “basic
minimum and unassailable core of a federal subject/undertaking”. Court therefore held
that the IjI applied.
o This was a slight modification of the IjI doctrine – provincial law now had
to affect a CORE of a federal undertaking.
 What is the core? In this case, the argument was that managing the
company (determining which workers were assigned what tasks)
was the core of the federal undertaking.
o Law applied to every other worker in Quebec, EXCEPT those employed
as part of a federal undertaking, in which case it would not apply.
Ratio (Beetz):
• When provincial law affects a core of a federal undertaking, the law is not
applicable with respect to the federal undertaking. Provincial law must be read
down since it would otherwise affect an essential or vital part of the
management (THIS IS HOW YOU KNOW IT IS INVADING A FEDERAL
CORE)of the federal undertaking
-What about Double Aspect doctrine? Court characterized the DA doctrine as

“permitting Parliament and a province to enact two relatively similar rules provided they
are legislating for different purposes and on the basis of different aspects.
-Court held that DA doctrine did not apply here, “since the legislators have legislated for
the same purpose and in the same aspect”. Court further noted that the DA doctrine
should only be used with great caution in the future, as it “would be a source of
uncertainty and endless disputes”.
Irwin Toy Ltd. v. Quebec (AG) [1989] SCC – Page 253 – Note #5
- Facts: Quebec legislation prohibited advertisers from certain kinds of ads geared
towards young children.
- Quebec legislature felt that children were especially vulnerable to certain ads, and
sought to protect children by effectively prohibiting some kinds of ads in the
interests of child safety.
- Irwin Toys was the manufacturer; not directly affected by the rule on
advertisements. Sought to challenge the constitutionality of the bylaw
nevertheless, on the grounds that in impinged federal undertakings with respect to
broadcasting – A FEDERAL POWER
- Issue: Can the IjI doctrine render a provincial statute inoperable when a
provincial law of general application indirectly affects a federal undertaking?
- Analysis: Court modified the IjI doctrine to allow for instances where the law
indirectly affects the federal undertaking  the test is not whether it impairs or
impacts on the core, but whether it sterilizes the operation or management of the
undertaking.
Ratio/New Test for Interjurisdictional Immunity doctrine:
First, assess whether a) Provincial law is of specific application OR b) Provincial law

is of general application
o If specific (specifically aimed at a federal entity), the law is invalid.

o If the law is a provincial statue with general application, assess whether it
directly or indirectly affects the federal work or undertaking.
- In Irwin Toys, the law against advertising (Irwin Toys) only indirectly affected
Broadcaster.
- If it directly affects, it is sufficient that the legislation affects a vital or central

part of the management or operation  IjI can be invoked.
- If it indirectly affects, then the legislation must go as far as to sterilize/impair the

operation or management before IjI can be invoked..
o The threshold is higher for indirectly affecting the entity.
Majority decided the provincial law only indirectly applied to the federal
undertaking and since it did not sterilize/impair the operation of broadcasting, it
could validly apply to it.
- Irwin Toy is the only case in which the meaning of IjI is actually elucidated yet it
is still not very much to go on in discerning exactly what is meant by the IjI
doctrine.
OPERABILITY
PARAMOUNTCY
- When otherwise valid federal and provincial statutes CONFLICT, the federal
legislation is PARAMOUNT and renders the provincial legislation INOPERATIVE
to the extent of the inconsistency.
- Provincial legislation is not rendered invalid, only its operation suspended.
- If the federal law is repealed or amended so as to remove the conflict, the provincial
law springs back into operation.
 The Paramountcy issue ONLY arises after the issues of validity and applicability
have been determined
 If a court has determined through the process of characterization, that both the federal
and provincial laws in issue are valid, and both apply to the facts of the case, then a
paramountcy issue may arise.
 Will not arise if court finds that one or the other of laws is invalid, or that the
provincial law is inapplicable (using doctrine of Interjurisdictional Immunity)
 Narrow reading of conflict would allow both fed and provincial laws to operate
unless it is impossible for those subject to the two leg schemes to comply with both
(EXPRESS conflict or Impossibility of Dual Compliance test)
 Broader reading of conflict - would hold a valid provincial law inoperative

whenever it has an impact on a matter already regulated by valid fed law: Covering
the Field test or the Negative Implication doctrine
 the SCC has tended at least until recently to favor a narrow approach, that leaves
great deal of room for the concurrent operation of fed and provincial statutes
 Court has upheld provincial statutes that impose different standards and consequences
for driving offences than those in Criminal Code. Impossibility of Dual Compliance
test-Ross case and also confirmed by SCC in Multiple Access v. McCutcheon
(leading case)
Multiple Access Ltd. v. McCutcheon (1982) SCC – page 260

(Direct Inconsistency/Paramountcy)
- Facts: Federal government passed Corporations Act, provinces have Securities

Acts. The only basis for difference between federal and provincial legislation was
the limitation period.
- McCutcheon – wanted to rely on the federal statute because the limitation period
had expired.
- Argued that federal statute should have paramountcy – two laws dealing with the
same matter, federal legislation should govern.
Held: Court said paramountcy was not applicable – reiterated the notion of direct
conflict (from Ross). Held (Dickson J.) that, in order to conflict, one act must say
one thing, the other act must be a complete opposite (p. 263). Expanded on decision
in Ross by stating that paramountcy could be invoked only if compliance of one act is
“defiance” of the other.
- Ratio: Only DIRECT conflict gives rise to the doctrine of paramountcy, such that
compliance with one law would be defiance of another. “Mere duplication without
actual conflict or contradiction is not sufficient to invoke the doctrine of
paramountcy and render valid provincial. leg inoperative.”
Bank of Montreal v Hall, (1990) SC – page 264
- Facts: Hall, a farmer, contracted loans from a bank and in return granted the bank
a security interest on a piece of farm machinery pursuant to a Federal Bank Act.
Again, two competing acts: Bank act of Canada and the provincial Consumer
Protection Act, a section of which relates to banking, and would render the
Federal Act inapplicable after a limitation period.
- Issue: Does the federal Bank Act conflict with the provincial Act such that the
provincial provisions should be rendered inoperative?
- Holding: Doctrine of paramountcy may be invoked as the two Acts are

incompatible. Provincial legislation is rendered inoperative with respect to
security interests.
- Ratio: Court adopted a more broad application of paramountcy doctrine: “A

showing that conflict can be avoided if a provincial Act is followed to the
exclusion of a federal Act can hardly be determinative of the question whether the
provincial and federal acts are in conflict, and hence repugnant…The focus of the
inquiry [whether provincial provisions are inoperative under the paramountcy
doctrine] must be on whether operation of the provincial act is compatible with
the federal legislative purpose”.
-LEGISLATIVE PURPOSE IS KEY HERE – Prov. legislation infringed the purpose of
the federal legislation
Class Comments:
- After Hall, a conflict may give rise to the doctrine of paramountcy by either a) an
impossibility of dual compliance (as per McCutcheon) OR b) an incompatibility
of legislative purpose)
Saskatchewan v. Rothmans, Benson and Hedges (2005) –

page 4 in the Supplement – <somewhat reconciles this ambiguity>
- SCC held that all paramountcy cases must be approached with a two step
analysis:
o Can a person simultaneously comply with both federal and provincial

statutes/provisions? (original test, from McCutcheon) If the answer is no,
the federal statute must prevail.
o If yes, does the provincial act frustrate federal Parliament’s purpose (from
Hall)?
 Even if you can comply with both, must still consider whether
the law frustrates Parliamentary purposes.
-In this case it was held that it did NOT frustrate Parliament’s purpose in passing the law
– protecting people from cigarettes, the prov. statute did this as well, just took it a step
further
Peace, Order, and Good Government

NOTE ON THE HISTORICAL DEVELOPMENT OF THE P.O.G.G. POWER – page 273
 Two branches of POGG – emergency and national concern. Many early decisions of
the Privy Council (PC) modified this model into something slightly different, by
conflating national concern with emergency. Essentially collapsed national concern
into the emergency power of POGG
 The modern formulation of POGG is based on Viscount Simon’s judgment in AG
Ontario v. Canada Temperance Federation 1946.
 Viscount Simon- expanded scope of the p.o.g.g. power by recognizing the power to
legislate for the prevention of an emergency, situations of national concern.
Reference re: Anti-Inflation Act, 1975, [1976]
In the Preamble of the Anti-Inflation Act, the drafters used the term “matter of
national concern” as an attempt to show that this piece of legislation is based on POGG.
They chose these words because they wanted to tie it into the case law without making it
seem like an emergency. If it is an emergency, it suggests a temporary nature while if it
was a national concern, the government would argue the measures should be left in place
for a longer period.
I: Can the Anti-Inflation Act be justified under POGG either under the national concern
branch or the national emergency branch?
D: 7 out of the 9 justices decided that the legislation could be supported under the
emergency power. 2 decided that it could not. 4 out of the 9 left the question open as to
whether it can be supported under the national concern power 5 said that it could not be
supported under this power.
The court ends up rendering a decision based on emergency – how come?
Judges Emergency National Concern Reasons

Laskin, Spence, Emergency A Is a national need rational basis
Judson, Dickson concern to show
emergency/crisis
(Laskin, an English (not explicit
speaker, allowed for evidence)
a broader
interpretation of the
preamble of the act
as he is attuned to
the malleability of
the language).
deGrandpre, Beetz Not emergency Not a national They see there is not
concern an emergency from
(Beetz, a Quebecker the preamble of the
took the meaning of Act – it does not
“national concern” expressly say there
literally as per most is an emergency.
interpretations in the See the element of
civil law. Also national concern as
wants to contain too broad; inflation
feds for political infringes too much
reasons). on the provincial
power
Ritchie, Pigeon, Emergency (B) Not a national Need very clear
Martland concern evidence/urgent
necessity to prove
emergency. See the
element of national
concern as too
broad; inflation
infringes too much
on the provincial
power.
Reasons: There are number of arguments that have to be dealt with before it can be
shown that there is an emergency.
1) In the preamble of the act it is never stated that an emergency exists all it
says is reduction of inflation has become “a matter of serious national
concern.”
 Majority does not put too much weight on the fact that an
emergency was not explicitly declared. Majority reasons that in
preamble they are saying there is an economic crisis that is
bringing into peril the economic stability of the country and this
constitutes an emergency.
 Dissent saying that the use of national emergency power enables
Parliament to override provincial laws in potentially every field so
it must be explicit when using the power.
 Beetz and de Grandpre point to the preamble – because the
preamble of this Act says “matter of national concern” it is clear to
them that it is not an emergency situation – if it was an emergency,
the drafters would have used the word “emergency.”
Comment: From this we see  No federal parliament would be
wise to draft a piece of emergency legislation without expressly
referring to it as an “emergency.”
2) Rational Basis:
 Laskin says all you need to ask is if there is a rational basis for the
legislation which is based on an emergency. Economists unsure
amongst themselves if it was an emergency. (This in effect enlarges the
federal power by setting a standard for justifying an emergency; some
argue this case makes it easier for the feds to establish an emergency –
the “rational basis” test is not a very high threshold).
3) The important question is if there is an emergency at the present time.

Majority says that this was a political question. Laskin limits the question
to “is there an emergency now?” The fact the provinces and the civil
services were left out of the scheme (with the ability to op-in) does not
mean it is not a crisis.
Emergency or National Concern?
Emergency National Concern

 Not contemplated in  Contemplated in
preamble of Anti-Inflation Act preamble of Anti Inflation Act
 Temporary measures  Can be extended for
 Inflation WAS an longer period of time
emergency (7/9 judges)  Inflation not a national
 Federal govt can enact concern (5/9) – very close
legislation in peacetime dealing with Why Inflation should NOT be seen as a
emergency power. national concern:
 Parliament has power to  5 judges argue inflation is
decide whether state of emergency crisis exists. not a national concern b/c anything that affects
 Laskin, Spence, Judson, the Can $ or GDP can affect inflation  would
Dickson said you need only “rational basis” to give feds too much broad reaching power.
declare emergency (sparsely defined: less than  Difficult to claim
strict scrutiny, comes from US courts) something is of “national concern” when it
 Ritchie, Pigeon, typically falls under s. 92
Martland says you need clear expert evidence.  if they wanted it to be under fed control, it
would have been listed in one of the

enumerated heads of power in s.91.
 The 4 judges who decided

it was a national concern, examined it under
POGG.
 Beetz (for 5 members of

the Court): only matters that are sufficiently
specific, distinct and indivisible qualify for
national concern – inflation fails for being too
diffuse and “totally lacking in specificity”
Ratio: When enacting emergency legislation under the emergency branch of POGG
courts do not have to explicitly say that there is an emergency situation. As long as
there is some support for the fact that there is an emergency that is good enough to
invoke the national emergency branch of POGG. Courts cannot deliberate on the
effectiveness of policy so long as legislature believed rationally that it would solve
the problem that is good enough for courts.
-First constitutional case with large use of extrinsic expert evidence.
All 9 judges agree on the following:
• The whole court would agree that the feds can, in peacetime, enact legislation
based on emergency power, which would supercede the normal divisions of power.
(either by rational connection – Laskin, clear evidence – Ritchie, or expressly
stated in the preamble – Beetz).
• Parliament has some power to decide whether a state of emergency exists.
 The court diverged on the issue as to what proof you need to show that an emergency
exists.
 the difficulty of defining what “national concern” is plays out in Zellerbach as well.
- Test for determining valid p.o.g.g power of Emergency legislation:

1. Crisis of serious national concern?
2. Is there a rational basis for the Parliament to conclude that an
emergency exists?
3. Is the measure temporary?
4. Is the law rationally connected to the emergency?
The National Concern Doctrine after the Anti-Inflation Reference
- This branch, given a narrow/ambiguous scope in the Anti-Inflation reference, was

elaborated in two cases: R. v. Hauser, and Schneider v. the Queen.
- Hauser: since narcotics were a “new problem which did not exist at the time of
confederation”, and since it did not come within matters of a merely local or private
nature, it fell within the “general residual power” in the same manner as aeronautics
and radio.
- Schneider: The court, with specific reference to the national concern branch and the
“provincial inability test”, held that Heroin abuse was not a matter falling within the
POGG power:
- “It is not a problem which is ‘beyond the power of the provinces to deal
with.’”
- “Failure by one province to provide treatment facilities will not endanger
the interest in another province.”
- “Nor can it be said, on the record, that heroin addiction has reached a state
of emergency as will ground federal competence under residual power.”
- Legislation can be divided: illegal trade in narcotics coming within the
jurisdiction of the Parliament of Canada, and the treatment of addicts
under provincial jurisdiction.
R v. Crown Zellerbach Canada Ltd, SCC 1988
Facts: Crown Zellerbach Canada Ltd engaged in logging, dumped wood materials in
lake, breach of federal Ocean Dumping Control Act.
-Zellerbach claims that this is provincial water so any federal legislation regarding it is
ultra vires.
-Federal government tried to justify the legislation under national concern branch of
POGG.
-The Ocean Dumping Control Act only applies to marine water that is not international
water - act clearly includes salt water but there is a question as to whether it can include
BC's internal salt waters.
Issue: Does the Ocean Dumping Control Act fall under the national concern branch of
the federal POGG power?
Decision: The court draws out four conclusions about the national concern branch of
POGG.
Le Dain (p306) - analytical approach for examining matters of national concern (it all
comes together in paras. 3 and 4:
1) The national concern doctrine is separate and

distinct from the national emergency doctrine of POGG. The emergency branch
is a temporary power and the national concern branch is permanent.
2) National concern doctrine applies to both new
matters which did not exist at confederation and to matters which, although
originally matters of a local nature, have since, in the absence of national

emergency become matters of national concern.
3) National concern requires singleness,
distinctiveness and indivisibility that clearly distinguishes it from matters of
provincial concern and it makes sense to deal with it on a federal level.
4) To determine if a matter has attained the required
degree of singleness, distinctiveness and indivisibility that clearly distinguishes it
from matters of provincial concern consider the provincial inability test: what
would be the effect on extra provincial (national) interests of a provincial
failure to deal effectively with the control or regulation of the intra-provincial
aspects of the matter?
Majority: Marine pollution is a matter of national concern

-Provincial saltwater and territorial water has the required degree of singleness,
distinctiveness, and indivisibility to distinguish them from matters of provincial concern
since a) it is hard to visually ascertain the boundary between territorial sea and internal
marine waters (indivisibility) and b) there are differences between the composition and
action of marine waters and fresh waters  ascertainable and reasonable limits exist on
the impact of federal legislation on provincial jurisdiction.
Dissent: Giving the federal government jurisdiction over inland waters sets a bad
precedent. Argues we need to draw the line to prevent the overreaching of federal control.
It is exactly because factors affecting pollution are so strongly interconnected that giving
feds jurisdiction here is dangerous: a whole host of other issues are known to affect
pollution (deposits from the air, soil etc); their regulation may in the future fall under
federal jurisdiction  this may be an overly broad expansion of federal powers.
Ryder’s Comments: POGG cases are very few, so it is fair to ask: “does this really have
that big an impact on provincial autonomy?” However, POGG’s impact on the provincial
jurisdiction over ocean pollution may mean that there will be more concurrency and
potential for federal paramountcy. As such, provincial laws that deal exclusively with salt
water pollution may be declared UV; however, provincial laws that deal with all the
water in the province may be IV due to the necessarily incidental doctrine.
Haigh’s comments: This is a really unworkable test  gives the feds all kinds of room
to create legislation under federal powers that they would not normally have. However,
feds have been fairly responsible after this case, and in cases where they could have
enacted POGG legislation, have refrained from doing so. The 1988 Court appreciates
Canada’s international obligations in reducing pollution: by giving the federal
government more power on this issue, the court is giving the government the ability to
uphold its international obligations.
Friends of Old Man River Society v. Canada (Minister of Transport), 1992

F: The Environmental Assessment and Review Process Guidelines state that if a

proposal could have serious adverse environmental effects, there must be public review
by an environmental assessment officer. Alberta wants to build a dam on Old Man River,
so they claim the legislation oversteps federal jurisdiction.
I: Can this federal environmental legislation be justified under the national concern
branch of POGG?
D: No, it cannot be justified under POGG.
 Court ruled environmental protection is not a federal head of

power and does not have the requisite distinctiveness to meet the test under the
national concern doctrine of POGG.
 “The environment…encompasses the physical, economic and
social environment touching several of the heads of power assigned to the respective
levels of government"
 Need to reconcile with Zellerbach; in Zellerbach, marine
pollution is characterized as a national concern because it is predominantly extra
provincial and international.
Ratio: Environmental protection is not a federal head of power and does not have
the requisite distinctiveness to meet the test under the national concern doctrine.
However, marine pollution is characterized as a national concern because it is
predominantly extra provincial and international (from Zellerbach).
R v. Hydro-Quebec 1997 SCC
Facts: Canadian Environmental Protection Act (CEPA) – life-cycle (“cradle to grave”)

regulation of toxic substances
Issue: Is the regulation of toxic substances a valid exercise of federal jurisdiction?
Decision:
- The court does not undertake a POGG national concern analysis which, it argues, is
controversial and raises issues that go to the heart of the federal structure of our
constitution. (Ryder: CEPA has a really broad definition of “toxic” – this runs
counter to the singleness, distinctiveness and indivisibility criteria in Zellerbach.)
- Instead, the Majority holds that CEPA is a valid exercise of the federal Criminal
Law head of power – this analysis is preferred since the court argues that the criminal
law power is not as controversial/divisive as the national concern doctrine
Federal Powers over Economic Regulation – s. 91(2)
After 1960:
- courts seemed more willing to apply the necessarily incidental doctrine in relation to
the trade and commerce power, thus allowing the federal government to regulate
some intraprovincial transactions as part of a scheme directed at the regulation of
interprovincial or international trade: The Queen v. Klassen and Caloil Inc. v. AG
Canada
- The Supreme Court applied the general regulation of trade doctrine to uphold federal
competition legislation: GM v. CNL.
Citizen's Insurance Company v Parsons, (1881) SCC & P.C – page 90
Facts: Ontario enacted legislation regulating insurance. Insurance company refused to

pay Parson’s claim because he failed to disclosed all relevant info. Parson sued to get
money on the basis of Ontario Act – says you don’t have to disclose all relevant info.
Insurance company claimed the Act was ultra vires.
Issue: Is the Ontario Insurance Act ultra vires the province? Does it fall under the head
of trade and commerce (federal), or property and civil rights (provincial)?
Decision: the provincial act was not ultra vires. The Act regulated contracts and
contracts fell under the head of property and civil rights. It did not come under the
federal head of power trade and commerce because it was not 1) political arrangements in
regard to trade requiring the sanction of parliament, 2) regulation of trade in matters of
interprovincial concern, or 3) general regulation of trade effecting whole dominion. The
Act was merely the regulation of one industry in one province; therefore, not federal
jurisdiction under trade and commerce.
Ratio: Under civil and property rights the provinces have the right to legislate over
contracts or particular businesses within the province.
The federal trade and commerce power only deals with:
1) political arrangements in regard to trade requiring the sanction of parliament
2) regulation of trade in matters of interprovincial concern or
3) general regulation of trade effecting whole dominion (GRT).
Ryder condensed this to 2 branches: 1) Extraprovincial (between provinces and

international) trade (ET) and 2) General Regulation of Trade (affecting the whole
country)
- Case laid out an ‘exclusivist’ approach in defining the limit of federal power over
‘Trade & Commerce’ and provincial power over ‘Property & Civil Rights’.
o Assigned narrow scope to federal power to preserve integrity of provincial
power
The Queen v. Klassen (1960) – page 357

Facts: s. 16(1) of the Canadian Wheat Board Act outlined certain compulsory procedures
and guidelines re: grain elevators. Klassen, a grain farmer involved in intraprovincial
grain trade failed to respect the federal guidelines and was charged under the Act.
Issue: Is s.16(1) of the Act a valid exercise of federal powers over Economic Regulation?
Decision:
- the Act’s main legislative purpose is the regulation of trade and commerce with
respect to interprovincial and international export of grains.
- S.16(1) is simply the machinery by which the policy and general purposes and
provisions of the Act are administered and enforced.
- Even though Klassen was not directly involved in interprovincial or international
grain trade and all his trade was intraprovincial, s.16(1) still applies to him since one
of the main purposes of the Act was equality of delivery opportunity (i.e. the
government’s interference with individuals’ rights to trade grain freely on the market
must affect all equally; it must not be allowed that some traders gain unfair
advantages by not respecting the Act simply because they were fortunate enough to
achieve access to local grain markets)
Ratio: The Act is in pith and substance in relation to trade and commerce (federal
heads of power) and merely “affects” property and civil rights (provincial heads of
power) incidentally.
Caloil Inc. v. AG Canada - SCC (1971) – page 361
Facts: In an attempt to help out Canadian oil producers, the federal government passed
legislation limiting “any gasoline” from being imported into certain areas of the country
without a license (this is legislation #1)  Caloil lost its license and sued, arguing that
legislation #1 was unconstitutional as it invaded provincial jurisdiction over property and
civil rights. The courts agreed with this claim. As a response, the federal government
passed legislation #2 which limited the scope of the restrictions to “imported oil”. Caloil
sued again on the basis that legislation #2 also invaded provincial jurisdiction
Decision: SCC decided unanimously that legislation #2 was intra vires i.e. a valid
exercise of federal power re: international trade regulation.
Analysis: SCC distinguished legislation #1 from legislation #2: #1 had too broad
restrictions (“any gasoline”) while #2 was explicitly limited in scope to imported oil. The
true character of the enactment is an incident in the administration of an extra-provincial
marketing scheme. Interference with local powers is an integral part of the control of
imports for extra-provincial trade regulation and as such, it is intra vires Parliament.
Ratio: federal government can assume a regulatory role over trade in the provinces
only if such regulation is “necessary” to the effective regulation of interprovincial or
international trade. (There is still a requirement that goods move across provincial
borders – THIS DID NOT HAPPEN IN KLASSEN, THUS KLASSEN WAS
FUDGED)
Note on Dominion Stores Ltd. v. The Queen – page 363
Facts: Federal and provincial Acts set out differing standards for produce quality labels:
“Canada Extra Fancy” quality could not be claimed on bruised apples, because the fed.
gov owns that label
-It was non mandatory to put this label on, but Dominion did anyways and was charged
Issue: is the federal Act ultra vires?
Decision: close (5 to 4): the Federal Act was ultra vires.

Analysis:
Majority - the Federal Act was ultra vires since it tried to regulate an entirely
intraprovincial matter under the guise of international and interprovincial trade
regulation. Allowing both the federal and provincial laws to regulate produce labeling
would create wasteful overlapping or double-decking of administration or enforcement –
this would defeat the purpose of the Constitution.
Minority: the Federal Act should be upheld. The federal standard is already compulsory
at the interprovincial and international trade level, so the voluntary compliance of dealers
at the local level would be convenient for both dealers and consumers.
Note on Labatt Breweries of Canada Ltd. v. AG Canada
Facts: federal Food and Drugs Act regulated the content of a variety of food and drug
products and set out product labeling guidelines. Labatt marketed its “Special Lite Beer”
which exceeded the maximum allowable alcohol content of “light beers” according to the
Act. Labatt challenged the validity of the federal Act. The federal argument argued it
relied on the trade and commerce power, the criminal law power and POGG power.
Issue: is the Act ultra vires?
Decision: the Act is ultra vires as far as it applies to malt liquors and light beers.
Analysis:
Trade and Commerce Power: the Act failed the first branch of Parsons (ET) since
breweries are a local intraprovincial matter.
The Act also failed the second branch of Parsons (GRT): the regulation of a single
trade or industry is clearly not of general national concern. “Neither national
ownership of a trade or undertaking or even national advertising of its products will alone
suffice to authorize the imposition of federal trade and commerce legislation”.
The Food and Drugs Act, though it covered a substantial portion of Canadian economic
activity, was seen as a scheme regulating “one industry or trade at a time, by a varying
array of regulations or trade codes applicable to each individual sector”  therefore, the
Act is not a “regulation of trade and commerce in the sweeping general sense
contemplated in Parsons”.
A federal “labeling power” is possible (see Canada Standards mentioned in Dominion

Stores on page 363 bottom), but not in this case since labeling legislation regulates
revelation of content and conditions of use and not standards of production or marketing.
Criminal Law Power: The impugned provision was characterized by Estey J as

involving detailed regulation of the brewing industry and as such was not directed at the
protection of health or the prevention of deception.
POGG Power: Estey J thought there was no matter of national concern.
AG Canada v. Canadian National Transportation
Dickson J:
Some criteria central to GRT

(General trade power – second branch of 91(2) and Parsons):
-GRT cannot lead to regulation of a single trade or business in the province since this is
not a question of general interest throughout the Dominion and goes against
---Constitutional local autonomy -- This is the case even if federal enactments purport to
carry out such regulation in the same way in all the provinces.
-GRT does apply when what is at issue is general legislation aimed at the economy as a
single integrated national unit rather than as a collection of separate local enterprises
-Such legislation cannot be practically or constitutionally enacted by individual or groups
of provinces. The focus of legislation validated by GRT is on the general: though it may
touch on provincial property and civil rights, in pith and substance addresses questions of
general interest throughout the Dominion.
-There is a clear line between measures validly directed at a general regulation of the
national economy and those merely aimed at centralized control over a large number of
economic entities. Labatt was close to this line.
General Motors of Canada Ltd. v. City National Leasing (1989) - page 371
<SEE ABOVE FOR FACTS>

Analysis:
Steps to take when a constitutional challenge focuses on a single provision of an
Act/Scheme:
1) Is the Act as a whole valid? (if NO, statute will be struck down)
2) If so, is the offending provision, viewed in isolation, valid? (in P/S, is it within the
jurisdiction of enacting government?)
3) If not, to what degree does it intrude on the other level of government’s jurisdiction?
4) Is the offending provision sufficiently integrated within the valid scheme, such that it
can be upheld by virtue of that relationship? (This requires considering the seriousness of
the encroachment on provincial powers, in order to decide on the proper standard for
such a relationship).
Does 31.1 of the CIA encroach on Provincial Powers?  Yes
1) Is the act as a whole valid? (Assess 5 GRT factors)

GRT factors (pages 373-374)
a) regulatory scheme?
b) oversight of regulatory agency ?
c) concerned with regulation of trade as a whole; must not be concerned with a particular
industry or collection of industries? (as in Parsons; Labatt)
d) legislation is beyond provincial jurisdiction?
e) national scheme necessary to avoid potential negative consequences that one
province’s approach could have elsewhere in the country?
a) Is there a regulatory scheme in the CIA?  Yes
Regulatory scheme factors:

- elucidation of prohibited conduct
- creation of an investigatory procedure
- establishment of a remedial mechanism
b) is there oversight of a regulatory agency?  Yes

- Director of Investigation and Research
- Restrictive Trade Practices Commission
c) concerned with regulation of trade as a whole?  Yes

- Scheme of regulation is national in scope
- Regulation of trade in general and not a particular industry or commodity
- General applicability (this distinguishes CIA from the Act in Labatt)
d) legislation is beyond provincial jurisdiction?  Yes

- deleterious effects of anti-competitive behavior transcend provincial boundaries
- competition is not only local concern, but of crucial importance for national economy
- provinces jointly or severally would be constitutionally incapable of passing effective legislation
e) national scheme is necessary

- Hogg article - need for national regulation of competition
- Study by Safarian
- National interest
- National regulation is the only feasible way to address the problem
Therefore, CIA is intra vires Parliament (Act is valid - Step 1 of 4 of the test above)
Federal Powers over Criminal Law – s. 91(27)
-To be valid criminal legislation the law has to have:

1. The Formal requirement – prohibition and penalty
2. Substantive Element – Purpose – the law has to have a public purpose – pursue the
elimination of a serious social evil
Ref re Validity of Section 5(a) of the Dairy Industry Act (Margarine Reference)
Purpose and Form Test:
Purpose (the Substantive element): every criminal law provision must have a public
purpose dealing with public peace, order, security, and health (pursuing to eliminate a
serious anti-social behavior).
Form (the formal element): it will be in the form of penal consequences which are
enforced by the courts.
Decision: In the correct circumstances, criminal power can be applied to issues of

commerce. Apply the Purpose and Form Test to Margarine  passed the formal element
but failed the substantive element (since prohibition of margarine was held to have no
public purpose in the sense outlined above).
RJR MacDonald Inc. v. Canada (Attorney General) (1995)
7-2 ruling that the Tobacco Products Control Act is a valid exercise of s.91(27) (much of
the Act was struck down on Charter grounds)
- RJR: “not part of the traditional areas of criminal law”

- Court: see the living tree – you can expand to include new areas
- RJR: if the consumption, sale, manufacturing is legal, why is advertising

criminal?
- Court: bad experience with prohibition (driving underground etc), it is open to
Parliament to target marketing as a way to reduce cigarette smoking
- RJR: there are exemptions in these criminal prohibitions (if something is truly
criminal, or social evil then no such exceptions should exist)
- Court: Parliament is entitled to make such exemptions as an exercise in defining
and outlining the limits of the prohibition
How far does criminal law go? RJR and Hydro Quebec push the boundary of criminal
law. It used to be thought you could only focus on the activity or the substance – this case
says parliament can make the choice – they can use other regulatory solutions that
prohibit certain aspects related to that activity – that is a valid exercise of the criminal
law power.
Facts: Restrictions on advertising and sale of cigarettes - requirement of health warnings,

restrictions on who they can market to and where they can market. (When thinking of the
validity of a federal provision, think of it in terms of: form (prohibition and penalties) and
purpose (prohibition of a social evil as illustrated by Rand J in Margarine reference).
Majority: Criminal law can embrace new matters such as cigarettes. Control of an ‘evil’
does not necessitate an outright ban of the substance, but, rather control of ancillary
measures (advertising) through criminal law power is acceptable. The form (penalty) and
purpose (smoking is bad) test still applies to the ‘evil.’ Presence of exceptions (i.e. is
legal to sell smokes as long as there are warning labels) didn’t preclude finding that
legislation was criminal law.
Dissent: advertising is too far removed from the injurious or undesirable effects of
tobacco use to constitute a valid exercise of criminal law power. Asks why they didn’t
ban tobacco itself. They argue there should not be any exceptions if it is truly criminal
law.
Hydro Quebec (1997)
(5-4 ruling upholding Part II of CEPA as a valid exercise of s.91(27) – most important of
the trilogy – It is the most expansive in terms of its definition of Criminal Law powers)
Facts: D charged w/ violating interim order under the Canadian Environmental Protection
Act, (established process of regulating use of toxic substances). Under CEPA, where
Ministers believe that immediate action is necessary with respect to substance, s. 35 allows
for making of ‘interim orders’ w/out going though usual procedure. Hydro Quebec
opposed interim order against them which circumvented normal procedure.
 Page 401: “may have an immediate or long-term harmful effect” -

this is a very broad definition – gives rise to division of powers concerns
 (in every other provision that the feds sought to justify under the
criminal law power (margarine, RJR), the provision was set out in the statute –
here, you can read the statute and you still may not know what is prohibited because
it is up to the minister to decide what is prohibited).
 Does this meet the formal definition of criminal law? There are no
prohibitions, only the power to enact prohibitions given to cabinet; this is a scheme
that allows Parliament to assess the hazards and enact regulations re:
manufacturing, use, disposal of toxic materials; this looks very much like a
regulatory act, not a criminal act
Issue: Can environmental issues be regulated through the criminal law power?
Majority: Permits criminal law power use based on regulatory discretion rather than
explicit provisions/prohibitions
 Broad wording is unavoidable due to the breadth and complexity

of environmental protection  majority allows the criminal law power to apply
even where the actual substance which causes the offense is subject to an
administrative decision
 requirements of PATA case (which were thought to require that

criminal law restrictions be based on explicit and clear provision) were not as strict
as formerly thought – RELAXING THE FORMAL REQUIREMENTS
 Majority (5-4): Pith and Substance fits criminal law

notwithstanding the apparently regulatory nature which, according to the majority,
is only an introduction to the criminal “meat” to follow in the prohibitions and is
therefore valid criminal law.
Dissent: sticks to PATA case (if Pith and substance is prohibitory rather than regulatory,
then it is valid under the criminal law power). This is regulatory and should not be
considered valid for that reason. Also, s.34(6) of the Act exempts provinces that already
have equivalent regulations in place  this suggests that the Act is regulatory in nature,
since feds cannot delegate their criminal law power to the provinces.
General Rule:  legislation with admin/regulatory features directed at defining the

nature and scope of prohibitions and penalties is constitutionally valid exercise of federal
criminal law power as long as the prohibitions and penalties are the P&S of legislation
 A regulatory scheme with a large measure of administrative discretion satisfies the
formal requirements of criminal law
Ryder agrees with the dissent (against this very broad expansion of criminal law powers)
After these two cases: Here, the majority decision from Crown Zellerbach is cut down
and limited to a very specific area of pollution. After the Hydro case, the court seems to
be saying that the court should use criminal law power to deal with the environment and
not POGG
Reference re Firearms Act (1995)
Facts: Alberta govt argued that federal gun control legislation (which sought to regulate
but not ban firearms through complex regulatory gun registry system) was really an
attempt to regulate personal property, which falls under the provincial head of power
-Here, the feds were applying RJR and Hydro Quebec to regulate firearms: they took the
notion that you do not need an outright ban but can ban ancillary aspects from RJR and
they took the notion that you can have a regulatory scheme under criminal law from
Hydro Quebec case.
Decision: Alberta failed and law was found to be good criminal law.
Reasons: the Act is in pith and substance directed to enhance public safety through
prohibitions and penalties, meaning it is valid criminal law
-While the Act also has regulatory aspects, they are secondary to its primary criminal law
purpose
-The intrusion of the law into the provincial jurisdiction over property and civil rights is
not so excessive as to upset the balance of federalism
Criminal purpose: gun control has traditionally been valid criminal law since guns are
dangerous and pose a risk to public safety
Criminal form: prohibitions and penalties (court focused on Criminal Code prohibitions
and thus avoided a “necessarily incidental” analysis – saying it’s well enough integrated
into the law as a whole to be necessary incidental, but they didn’t need to do this)
Complex regulatory nature of the Act:
- just because it is complex does not mean it cannot be criminal (other highly
complex laws are valid exercises of criminal law power – Food and Drugs Act, CEPA etc)
- no undue discretion given to the chief firearms officer or the Registrar
- unlike in Hydro-Québec, the offences are not defined by an administrative body
Gun control is distinguished from provincial regulatory schemes (cars, land titles etc)
- While cars are also dangerous, guns pose a pressing safety risk in many if not all of
their functions.
- Unlike cars, guns are often used in violent crime, domestic violence etc
- The Act does not regulate guns as items of property (i.e. it does not attempt to
regulate insurance or permissible locations of use); it only addresses dangerous aspects of
guns and the need to reduce misuse.
An appropriate balance of power must be maintained between federal and provincial

governments
- the question is not whether this balance is necessary (it is beyond debate that it is),
but whether the Act upsets it
- the Act does not upset this balance: it does not interfere with provincial property
and civil rights regulation of guns and it does not give the federal government jurisdiction
over a new field since gun control has always subject to federal legislation
Summing up the federal criminal law power
 RJR – related activities can be prevented under criminal law power

as long as it is in the service of prohibiting harmful activity
 Hydro Quebec – harm to the environment, not harm to a person and

not harm to property, is a valid purpose of criminal law as a social evil. The
prohibition with penalty can be read quite widely to include prohibitions that are
determined by the exercise of administrative discretion
 Hydro Quebec and Firearms Reference – show that complicated

administrative regimes where the decision making is carried out by the executive or
administrative officials is also valid criminal law
Provincial Power to Regulate Morality and Public Order – 92(14)
There are three ways in which provincial interests in regulating morality and public order
are recognized:
1. Much of the federal Criminal Code is provincially enforced because: 92(14) gives
provincial legislatures jurisdiction over the administration of justice in the province
(including provincial policing) and also because of the federal delegation to the provinces
of the power to prosecute Criminal Code offences.
2. The federal government, through conditional legislation, has built in flexibility to its
criminal laws allowing some such laws to operate only to the extent that they do not
conflict with provincial laws (ex: Lord’s Day Act)
3. Judicial recognition of concurrent provincial jurisdiction in matters that may also be the
subject of criminal law  this is the type of tension explored in McNeil, Westendorp and
Morgentaler i.e. should concurrency be allowed or should the federal criminal law
invalidate the provincial legislation?
Note: s.92(15) allows the provinces to enact penal sanctions, but the power is understood
as an “ancillary” one, authorizing the use of penal sanctions to enforce provincial
regulatory schemes that are validly anchored elsewhere in the s.92 list of provincial
powers. This means a province cannot enact penal sanctions on the basis of s.92(15)
alone. A province needs to justify the enactment of penal sanctions as an enforcement
mechanism to a law which is in pith and substance based on a valid provincial head of
power.
-e.g. If a province wanted to enforce a parking by-law, they could do that through
s.92(15) – allowed to enforce laws with penal sanctions as long as it is something that they
are allowed to enforce in the first place (in this case, parking is a municipal matter)
-Cannot start with 92(15), have to use sanctions they are allowed to made
Re Nova Scotia Board of Censors v. McNeil , 1978 SCC
Facts: D as private citizen sought declaration that provision of provincial Theatres and
Amusement Act that required that all films be submitted to provincial censor board prior
to their exhibition and the unfettered power of board to permit/prohibit showing of film
Decision: 5:4 decision upholding provincial legislation
Majority (Ritchie):
- Provision is preventative and regulatory rather than penal and therefore

acceptable under provincial head of power – province can regulate local trade
(intraprovincial) and can set its own standards;
- Province can entrench on areas of morality as long as pith and substance is
regulatory.
- Morality and criminality are far from co-extensive  provincial legislation which
establishes and enforces a local standard of morality does not necessarily invade
the federal criminal law power.
(Separation of powers and respect for federalism underlie the majority judgment)
Dissent (Laskin): Province is intruding on federal criminal jurisdiction by masking a

criminal provision in a regulatory scheme; morality is a federal jurisdiction. (Centralist
tendencies underlie the minority judgment)
Notes:
In McNeil, a certain provision of the Act was found, even by the majority, to be invalid
since it was too similar in its wording to the Criminal Code provision which made it an
offence to publicly exhibit an indecent show. Ritchie argued that the provision is invalid
since it authorized the censor board to define what constituted a Criminal Code offence
-Just acknowledging that they know where to draw the line
Bedard v. Dawson (1923) – page 420
Issue: Validity of Quebec legislation providing for the closure of premises used as
“disorderly houses” (which were mostly premises where Criminal Code convictions for
prostitution and gambling took place).
Decision: SCC upheld the provincial legislation
Arguments in favor of upholding the provincial law:

- The law was argued to be “preventative” not “penal” (similar to McNeil)

- the law was in relation to property use (analogous to control of nuisance)
- provinces can legislate with respect to the civil consequences of crime (for
example provincial highway traffic legislation provides for driver’s license
suspension following conviction for certain Criminal Code offences)
AG Canada v. Dupond (1978)
Facts: in 1969, Montreal had a series of public demonstrations which led to violence,
vandalism and looting. Shortly after, City of Montreal passed a bylaw prohibiting
gatherings that endangered tranquility, safety, peace or public order. The law gave the
city’s executive committee the power to prohibit gatherings if there were reasonable
grounds to believe they would endanger safety, peace or public order. Fines and
imprisonment were available as punishment.
Issue: is the provincial law valid?

Decision: the provincial law is valid.
Reasons: the provincial law is a valid exercise of provincial jurisdiction over the
regulation of the municipal public domain (a local matter). The majority (Beetz J) used
the preventive nature of the provincial law to distinguish it from the Criminal Code
provisions dealing with breach of the peace.
Dissent (Laskin): the provincial law is an ultra vires attempt to reinforce the criminal
law. The provincial law is a “mini-criminal code” dealing with apprehended breach of the
peace, apprehended violence and the maintenance of public order. The provincial law
could ban even peaceful gatherings. Since Laskin believed that the criminal law should
be enforced against violators and not against innocents, he strongly dissented.
Notes: Laskin’s dissents from McNeil and Dupond reflect his concern for the protection
of civil liberties through the federal criminal power – the criminal law power provides a
lot of procedural protections (beyond a reasonable doubt, etc….)
-But maybe the Charter eliminated the need for indirectly protecting civil liberties
through federalism – Now people can use Charter to challenge these provincial laws
Westendorp v. Queen, 1983 SCC – page 421
Facts: City of Calgary passes by-laws dealing with prostitutes congregating and causing
embarrassment (similar to Nova Scotia’s attempt to stop abortion in Morgentaler).
Decision: This is a clear attempt to punish prostitution in a criminal fashion; this is ultra
vires the municipal government. Prostitution does not relate to any head of power under
s. 92.
Majority: the pith and substance of the law is criminal. S.6 of this act is not merely
regulating a local matter (public nuisance) since it seems very arbitrarily chosen (not
related in subject-matter or in the scale of penalties with the rest of the by-law).
Legislative history showed that the province complained that the Criminal Code
provisions are not effective and then introduced the legislation – this shows that the
province was trying to intrude on the federal government’s criminal law powers.
Note: if province wanted to control prostitution, the law would have to be construed
effectively as an attempt to control the streets – this was not the case here.
Goldwax v. City of Montreal (1984) – page 423
This was a case similar to Westendorp where the municipality attempted to introduce
colorable legislation purportedly against public nuisance, but actually aimed at
criminalizing prostitution. The provincial law was again found ultra vires.
Rio Hotel Ltd. V New Brunswick (Liquor Licensing Board) (1987)
The Court held that, despite overlapping with valid federal law, the provincial law that
restricted nudity in bars was constitutionally valid  goes against Westendorp
Facts: The NB Liquor Control Act required that all liquor licenses be accompanied by an
entertainment license that limited the degree of nudity allowed within the establishments.
Issue: Rio Hotel decided to challenge the constitutionality of the law on the grounds that
it related to public morality, a matter of federal criminal law.
Decision: Dickson characterized the law as regulating the type of entertainment allowed
to promote alcohol sales (regulation of an intraprovincial matter), and did not
characterize it as an issue of morality
-The matter was seen as both of a local nature and relating to property and civil rights.
Though there are provisions within the Criminal Code dealing with nudity, they do not
conflict with the provincial law  one can comply with both. Furthermore, the provincial
law did not possess any penal consequences
-Dickson also distinguished Westendorp: in Westendorp, the impugned section was
clearly not integrated within the rest of the by-law (in either subject-matter or scale of
penalties) while the restrictions in this case were seen as part of a comprehensive scheme
regulating the sale of liquor in New Brunswick and as such were not a colorable intrusion
upon a federal head of jurisdiction
Note: Rio is an example of the general tendency of courts to allow concurrency (using
double aspect doctrine) of provincial regulation of morality and federal criminal law.
Ryder’s example: The Dog Owners’ Liability Act: is it a provincially valid power (street
safety with enforcement/punishment provisions attached) or is it a federal power
(prohibition with penalty to combat a social evil)? It is both and therefore, concurrency
makes sense
Provincial Commissions of Inquiry (PCI) and the Criminal Law Power – page 425
- The criminal law affords the accused procedural protections.

- Provincial Commissions of Inquiry (in the process of examining conduct that has also given rise to
a criminal investigation or charges) can compel testimony (with the restriction that any evidence
given cannot be used against the person giving that evidence in any subsequent proceedings)
- The courts see provincial commissions of inquiry as having a purpose different from a criminal
investigation i.e. not whether a specific crime was committed, but determining what the extent and
causes of a problem are so that they can be prevented in the future. As such, courts often recognize
a double aspect, allowing both criminal investigations and PCIs to run side by side.
- An exception from this tendency towards double aspect is found in Starr v. Houlden where the
PCI was found to be ultra vires the province: PCI had a narrow focus (only two named
individuals) and incorporated/used language from Criminal Code provisions  SCC found this an
intrusion on federal criminal law and criminal procedure powers
PART 2: Aboriginal Peoples and the Constitution

Common Law Background
-Historically, aboriginals were treated as nations by the British, because of their strategic
military importance
R v. Sioui (1990) SCC - page 513
Facts: members of Huron nation charged with cutting trees in provincial park contrary to provincial
Quebec regulations; claimed they were practicing ancestral customs and religious rights guaranteed by a
treaty with the British in 1760.
Decision: the Huron entered into a treaty to protect religious liberties and customs, treaty is still valid, the
acts protected by its terms were not incompatible with Crown suzerainty and that the treaty provided an
effective defense against the acts for which the Huron were charged.
Analysis: a review of the historical record indicates both the French and the British treated Native Nations
as sovereign and sought to enter into treaties with them since they were valuable allies.
Chippewas of the Sarnia v. Canada (2001) Ont. CA – page 517
The Court outlines the historical nature of Crown – First Nations relationship.
o Dealings between Crown and First Nations involved relations between sovereign nations
to be governed by agreements of treaties made by the Crown and First Nations. These
relations were an imperial concern, administered primarily through royal prerogative, policies
formulated in England and Indian affairs were no concern of colonial legislatures
o Crown, mainly for military reasons, sought First Nation support. It did so by addressing
Native grievances
Royal Proclamation of 1763:
- recognized First Nations had rights in their lands

- established imperial control over settlement on Indian lands whether those lands were within or
beyond the boundaries of the established British colonies in North America
- prohibited private purchase of Indian lands and required that alienation of Indian rights in their
lands be by way of surrender to the Crown
- established a process by which surrenders of Indian land would be made to the Crown. The
surrender process accepted that Indian rights in their lands were collective and not individual.
p. 519- Canada, Royal Commission on Aboriginal Peoples, Report, vol. 2,

Restructuring the Relationship
Connelly v. Woolrich (1867), Quebec SC
Facts: White guy marries Native woman under Cree Law on Cree Land. Later
moved away married white woman. Upon father’s death, son from first marriage
brings claim that under Cree Law he is entitled to half of father's property.
Issue: Was the Cree marriage valid?
Decision: The court had no hesitation in holding that the Indian political and
territorial rights, laws, and usages remained in full force in the northwest at the
relevant time. This decision portrays Aboriginal peoples as autonomous nations
living within the protection of the Crown but retaining their rights, political
organizations and common laws.
Number of lessons can be drawn from this case:
1) The sources of law and authority in Canada are more diverse than is sometimes
assumed.
2) In earlier times, the history of Canada often featured close and relatively
harmonious relations between Aboriginal peoples and newcomers.
3) The decision in Connolly v. Woolrich stands in contrast, then, to the common
impression that Aboriginal peoples do not have any general right to govern
themselves. However, this view overlooks important features of our legal system:
The laws of Canada spring from a great variety of sources, written and unwritten,
statutory and customary.
• In 1876 the Indian Act, attempted to change the Aboriginal conceptions of land,
governance, inheritance, family and obligation. It virtually ignored Aboriginal traditions
by trying to replace them with Victorian values and thus departed from the more
respectful relationship created in the 100 year period prior to confederation.
• In Calder v. AG BC the SCC recognized that Aboriginal title was justifiable

under the common law. This case arose because unlike the situation in Ontario, treaties
had not been signed in B.C. As a result the Nisga’s claimed that they continued to enjoy
aboriginal title in absence of such surrenders. While the judges were evenly split on the
major issue of whether the Nisga’a Aboriginal title had been extinguished by the general
land enactments of BC, they did agree that Aboriginal title existed independently of a
“treaty, executive order or legislative enactment”.
Sources of Aboriginal Rights Prior to 1982:
1) Royal Proclamation 1763: Assertion of British Sovereignty in North America.

The proclamation established that unsettled lands in Quebec were reserved for
aboriginal people. The proclamation also recognized the tile of Aboriginal people.
It was set out that British settlers could not acquire the lands of Aboriginal
peoples and that Aboriginal land could only be ceded to the crown.
2) Common Law Aboriginal Title: Recognized in the St. Catherine’s Milling case
1888 where it was established that Aboriginal peoples had a personal and
usufructuary right to the lands which they traditionally occupied. It was held that
aboriginal title existed as a burden on the underlying crown estate in all land.
3) Treaties with the Crown: Generally, treaties provided for the surrender of
traditional lands in exchange for some form of compensation. Treaties were
generally interpreted by courts against the interests of the Aboriginal people.
Treaties:
- Now read as documents between equals. Similar to International treaties.

- Must think of treaties as a solemn exchange of promises between the Crown and
Indian Nations (sacred agreement).
- Agreement where the ‘honour’ of the Crown is at stake
- Must assume that the Crown will ALWAYS FULFILL its obligations committed to
under a treaty.
- Treaties are read IN FAVOUR of the aboriginal band i.e., any restrictions or
extinguishments of rights are for the Crown to prove.
Guerin v. The Queen (1984) SCC – page 524

- The beginning of modern Aboriginal rights in Canada

- Took place before the 1982 Constitution (even though the decision came out in 1984).
Facts: The Indian Act said that a band must surrender its land to the Crown in order for
the Crown to lease it to the public. The Musqueam Band wanted the land to be leased out
and a golf course built. They surrendered the land to the Crown and trusted the Crown to
negotiate the land for them (they had to because of the Act). The agent for the Crown
negotiated in bad faith (since he couldn’t find a lessee to lease the land to at a good price)
and ended up leasing at a much lower price per acre than the Aboriginals wanted, but
didn’t tell them. The agent then signed the lease at a lower rate and the Musqueam band
was not told what was going on. They didn’t realize they were being ripped off until
much later.
Dickson explains the nature of the relationship between the Crown and the
Aboriginals and its fiduciary duty:
• Sui generis (unique) nature of the interest

o Sources of Aboriginal title: Royal Proclamation and treaties. It all stems
from the fact that the Aboriginals were here first and the settlers just took
away some of their rights that they shouldn’t have.
• The Crown has a fiduciary obligation to the Aboriginal population

o (Fiduciary means that you owe it to another to act in their best interest,
with loyalty and in a certain way – e.g. lawyer-client privilege. It’s the
highest obligation that civil obligation has invented)
o A fiduciary aspect can arise by statute, agreement, unilateral undertaking.
o The Aboriginal-Crown relationship arises by virtue of the Indian Act and
by historical factors (they were here first, the Crown has taken on role of
acting as parent to Aboriginals)
o The Indians’ interest in lands does not in and of itself give rise to a
fiduciary relationship; this relationship is created by the additional fact
that the Indian interest in the land is inalienable except upon surrender to
the Crown
o Part of the duty in this particular case, it is the honor of the Crown that is
at stake.
 Even if the Crown’s original price was too unreasonably high, you
don’t just go and negotiate a dif rate. You go back and say that you
can’t get a deal at that rate and get their consent to go for a lower
price. You can’t act unilaterally without having their best
interests at heart.
o The damages for a breach of a fiduciary duty are much greater than they
otherwise would have been.
The Existence of Indian Title:
• In Calder the court recognized aboriginal title as a legal right derived from the
Indians’ historic occupation and possession of tribal lands.
• Assumption implicit in Calder that Indian title is an independent legal right,

which, although recognized by the Royal proclamation of 1763, nonetheless predates
it… Their interest in their lands is a pre-existing legal right not created by the Royal
Proclamation or the Indian Act or by any other executive order or legislative provision.
 The sui generis interest which the Indians have in the land is personal in the
sense that it cannot be transferred to a grantee, but it is also true that the
interest gives rise upon surrender to a distinctive fiduciary obligation on the part
of the Crown to deal with the land for the benefit of the surrendering Indians.
 These two aspects of Indian title go together since the Crown’s original purpose
in declaring the Indians’ interest to be alienable otherwise then to the Crown
was to facilitate the Crown’s ability to represent the Indians in dealing with
Third parties. Any description of Indian title, which goes beyond these two
features, is both unnecessary and potentially misleading.
Ratio: When a native band surrenders land to the Crown, a fiduciary relationship is
created and the Crown has a duty to represent the best interests of the Band in its
dealings with respect to the land.
-THIS IS THE MOST IMPORTANT PART OF THE CASE
Notes: One of the dangers of saying that there’s this fiduciary duty, is that it perpetuates
the idea that the Crown has taken on a paternalistic role.
BUT, Haigh thinks Dickson would acknowledge this, but argue that he only wants to take
the stuff from fiduciary duties that make sense in this instance. Also, a fiduciary
relationship does not necessarily indicate a paternalistic relationship. Sometimes the
person owing the fiduciary is less powerful than the beneficiary (like in the cases of
corporations). In this case, the fiduciary duty is not meant to keep the Aboriginals down,
always at the mercy of the Crown
SECTION 35 – THE CONSTITUTIONAL ENTRECHMENT OF

ABORIGINAL RIGHTS
-s. 35(1) recognizes pre-existing rights of aboriginals – controversy of what ‘existing’

means, and what ‘rights’ means
R v. Sparrow [1990] SCR – page 532
Facts: Sparrow fishing with a net longer than which was allowed under federal
regulations. Claimed this law violated his pre-existing native right to fish for food.
Issue: Does legislation infringe existing native rights under section 35(1)?
(Court elucidates the nature and scope of s. 35 rights):
TEST FOR EXISTING RIGHTS
1. What does "Existing" mean?
 The right must exist when the constitutional act of 1982 came into effect.
 Court rejects the view that the right must remain frozen.
 Any attempt to extinguish rights prior to 1982 must have been clear and
plain. Regulating the right is NOT ENOUGH; the right must be eliminated all
together (i.e. a right controlled is not a right removed).
2. What does "Recognized and Affirmed" mean?
 This wording imports some restraint on the exercise of sovereign power.

 Rights that are recognized and affirmed are not absolute.
 The federal power must be reconciled with federal duty and the best way to
achieve that reconciliation is to demand the justification of any government
regulation that infringes upon or denies aboriginal rights.
Steps to determine if there is a violation of section 35(1):
1. Did the legislation in question have the effect of interfering with an existing
aboriginal right? (prima facie interference  onus is on party claiming
interference)
To determine an interference, must ask:
a) Is the limitation unreasonable?

b) Does the regulation impose undue hardship?
c) Does the regulation deny to the holders of the right their preferred means of
exercising that right?
2. Does this constitute a legitimate regulation of an aboriginal right?

(Justification analysis -is the infringement justified?  onus on government)
a) Is there a valid legislative objective?
(An objective aimed at preserving 35(1) rights would be valid, but it has to be
balanced with the interests of society as a whole, such as conservation)
b) Is the legislation or action consistent with the honor of the Crown?

o Aboriginal interests have priority: After the objective is accomplished

are the aboriginal interests put above other priorities?
o Is the regulation required to accomplish the needed limitation? To this
end, the Crown could use facts pertaining to fishing by other Fraser River
Indians as proof.
Further factors that may be considered in a justification analysis:
• Could the obligation be met by pursuing other feasible options without

infringing s.35(1)? - parallels minimal impairment (Oakes)
• Were the aboriginals consulted? (re: fiduciary obligation)
• If expropriation was involved, was fair compensation obtained?
- The list of factors to be considered in a justification analysis is not meant to be
exhaustive
R. v. Van der Peet (1996) – page 545
Facts: The appellant Dorothy Van der Peet was charged under s. 61(1) of the Fisheries
act, with the offence of selling fish caught under the authority of an Indian food fish
license, contrary to s.27(5) of the British Columbia Fishery Regulations. Defendant
argued that selling fish was an existing aboriginal right and should be protected under
section 35(1) of the constitution.
This case is different from the Sparrow case because of the commercial aspect.
The new test, the ‘modified Sparrow test’, gives the word existing a new meaning, “an
element of a practice, custom or tradition that is integral to the distinctive culture of
Aboriginal peoples.” So this is saying that the practice in question must be central to the
culture and something that should have been developed before contact with European
settlers. It cannot have developed solely as a response to European influence.
“Integral” does not mean “unique” or “distinct”, but it does mean “central” to the
cultural identity, part of what makes this culture what it is: take it away and it changes
what the culture is. Therefore “integral” varies according to historical evidence from
group to group.
In the present case, the court held that there was no market for fish before European
contact. I.e. if there was a market for fish, it only happened after Europeans came.
Therefore, her conviction stands.
Case made 2 additions to Sparrow test:

- “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 PRIOR TO CONTACT”.
- Band must show CONTINUITY of the practice up to today. Don’t have to show
a ‘completely unbroken chain’, but there must be some kind of thread pre-
contact. Otherwise not ‘true’ s.35(1) right.
- Distinctive = Defining feature, significant, necessary, central to a culture’s
existence.
Notes:
But how can you say what is central to a culture? And what is incidental?
Why does the practice have to have come about before contact?
Haigh thinks this is very artificial and cheapens culture and it makes it
dependant on evidence.
Also, focus on pre-contact is problematic: it is focused on reconciliation which
should start, according to Lamer, at that time; however, this freezes rights and
cultures etc.
The new 5 part test based on Sparrow and Van der Peet
Is it an Aboriginal right?
1. Practice must be pre-existing and central – Aboriginals’ burden

2. Not extinguished – Aboriginals’ burden
Was the right infringed?
3. Must be infringed by government act – Aboriginals’ burden (from Sparrow)
Is the Infringement justified?
4. Government must show adequate justification - Government’s burden

5. Go beyond Crown’s reasonable discretion as fiduciary to show Aboriginal community
has “priority” in enjoyment of resources traditionally utilized – Government’s burden
You end up getting imbalances between bands that have been well documented and well
studied vs. those that haven’t.
R v. Gladstone (1996) SCC – page 565

<AN ANALYSIS OF JUSTIFYING INFRINGEMENT>
Facts: Member of Heiltsuk band charged and convicted of selling herring spawn on kelp
w/out proper license.
Majority found that there was an aboriginal right (the defendants met all the
requirements of the Van Der Peet test), it hadn’t been extinguished and there was a
prima facie infringement.
Is the infringement justified? (steps 4 and 5 of Van der Peet test)
- S.35(1) is not part of the Charter (not subject to s.1 or s.33); however, the federal of
provincial government may validly interfere with existing Aboriginal or treaty rights
if it can demonstrate on the balance of probabilities that 1) it is pursuing a compelling
and substantial objective (like conservation) and 2) in a manner compatible with the
honor of the Crown
- Court had to deal with the difference between commercial rights and subsistence
rights. There is an “internal limit” to subsistence rights: when you have enough for
subsistence, the limit of the right is reached. However, there is no limit to what you
can sell commercially – the only limit is demand.
- If we allow Aboriginals to have unlimited commercial rights, there is the potential
that the non-native industry will be destroyed.
- Therefore, court held that Sparrow test needs to be modified where there are things
that are inherently unlimited – i.e. commercial sale. In such cases, government has a
legitimate interest in conservation; government may regulate to protect the industry.
If it does so, however, it must give priority to the Aboriginal rights if it was part of
their culture.
- Other objectives that qualify as pressing and substantial are: pursuit of economic
and regional fairness and the recognition of the historical reliance upon, and
participation in, the fisheries of non-Aboriginal groups
Ratio: Court distinguishes between subsistence needs (Sparrow) and commercial

needs where there is no ‘internal limitation’. Commercial rights may be regulated
in the interest of public policy. The Crown may impose limitations on resources in a
commercial context if it demonstrates that both the process by which it allocated the
resource and the actual allocation of the resource were considered.
-So, in the end, for infringement of aboriginal commercial rights, the aboriginals do not
have priority
-The government just has a simple burden to show that they had aboriginals in mind
when the commercial right was infringed
R v. Powley (2003) SCC – supp. 13

<THIS CASE DEALS WITH METIS>
Facts: Mr. Powley and his son, both Metis, shot a moose in Ontario during a moose hunt.
Moose-hunting is a strictly regulated practice in Ontario. Powley had no license “tag” to
kill moose. Inspectors charged him under Game and Fishing Act for killing a moose
without a license or tag. Powley claimed he was exercising Aboriginal right, and the Act
was an infringement of s. 35 rights.
Issue: What is the appropriate test for determining whether an Aboriginal right exists for
the Metis people? Recall from Van Der Peet that test requires claimant to show that
right existed prior to European contact. Metis only came into existence with European
contact.
Decision:
- Court held that the VDP test was still in place, just needed to be revised when
addressing Metis rights.
- In a problem such as this, there are SIX steps that must be addressed.
o 1. What is the right? Establish that there is a claim for some right by an
Aboriginal, which would allow them to avoid some sort of legislative
provision or requirement.
 Right to hunt (court held it need not be framed as the specific right
to hunt MOOSE).
o 2. Is the defendant part of the group claiming the right? D has to show
that there is some sort of ancestral connection to the community they are
claiming. Group must still exist today.
o 3. Is the practice or tradition integral to the group? Reformulated slightly
for Metis – instead of prior to European contact, the right must have existed
prior to the period in which Europeans had control over the political system.
o 4. Is the claimant able to establish continuity with the practice and the
contemporary claim?
o 5. Has the right been extinguished? Regulation does not equal
extinguishment – must be some express extinguishment; i.e. murder for
revenge extinguished by criminal code.
o 6. Is there an acceptable justification for the infringement? In Powley,
Crown claimed that moose were an endangered group; this might constitute an
acceptable justification. However, court held that if any moose hunting were
allowed, Metis needed to be given priority. Only if they got rid of moose-
hunting ENTIRELY on the grounds of endangerment would you be able to
justify legislation preventing the Metis from hunting.
 Another justification arguments tried by the Crown – it is difficult
to tell who is a Metis and who isn’t; this will create difficulty in
determining who should be afforded right.
 The court held that the fact that it may be difficult is not a reason
to deny Metis the right.
ABORIGINAL TITLE
Delgamuukw v. British Columbia (1997) SCC – page 575
Preliminary issues
-Lamer C.J. considered that the Court was precluded from dealing with the merits of the
Gitxsan and Wet’suwet’en claims for two reasons.
-First, the individual claims originally brought by each House had been amalgamated into
two communal claims, but had not been formally amended. Because this procedural
defect was prejudicial to the province’s rights as a litigant, the correct remedy was a new
trial.
-Second, a new trial was necessary so that the complex and voluminous factual evidence
in the case could be assessed in accordance with principles having specific application to
Aboriginal claims such as those of the Gitxsan and Wet’suwet’en.
<LOWER COURTS SHOULD HAVE USED THE ORAL HISTORY EVIDENCE>
The Rules of Evidence
-The oral histories and aboriginal perspectives should be respected as evidence

-Para 87: “Notwithstanding the challenges created by the use of oral histories as proof of
historical facts, the laws of evidence must be adapted in order that this type of evidence
can be accommodated and placed on an equal footing with the types of historical
evidence that courts are familiar with.”
-Lamer C.J. found that the trial judge didn’t respect the oral history
Features of Aboriginal Title – ABORIGINAL RIGHTS TO LAND
Inalienability, in that lands held pursuant to Aboriginal title may be transferred or

surrendered only to the Crown
Source, in that Aboriginal title arises from (1) They were there first -- occupation
of Canada by Aboriginal peoples prior to the Royal Proclamation of 1763: under
common law principles, the physical fact of occupation is proof of possession in
law; and (2) the relationship between common law and pre-existing systems of
Aboriginal law; some of their laws still survived
Communal nature, in that Aboriginal title is a collective right to land held by all
members of an Aboriginal nation.
Content of Aboriginal Title
Includes right to exclusive use and occupation of the land for various purposes
-Aboriginal title to the right to use the land is not restricted only for activities arising
from practices or traditions that were integral to the distinctive culture of the group
claiming title.
Land use must be compatible with the nature of the attachment to the land
-Since continuity of relationship also applies to the future, lands subject to Aboriginal
title cannot be put to uses that are "irreconcilable with the nature of the occupation of
that land and the relationship that the particular group has had with the land which
together have given rise to aboriginal title in the first place" (par. 128). For example, a
group successfully claiming Aboriginal title to land that was occupied as a hunting
ground may not use the land in such a way as to destroy its value for hunting.
-This general limitation on the use of lands does not restrict land use to traditional
activities, since this would amount to a "legal straitjacket" on those having a "legitimate
legal claim to the land." That is, a full range of uses of the land may be undertaken,
subject to the "overarching limit" arising from the special nature of the Aboriginal title in
the land in question (par.132).
-Nothing in this approach precludes the surrender to the Crown of lands held pursuant to
Aboriginal title; in fact, such lands must be surrendered and converted into non-title lands
if Aboriginal peoples wish to use them in a manner incompatible with their title.
Aboriginal Title and Section 35
-Delgamuukw confirmed that common law Aboriginal title, recognized as a common law
Aboriginal right prior to 1982, was "constitutionalized … in its full form" by section 35
of the Constitution Act, 1982 (par. 133).
-The degree of connection with the land is pivotal in determining the scope of
constitutional Aboriginal rights claimed.
1) At one end of the spectrum of rights are those practices or traditions integral to a
distinctive Aboriginal culture, but where the use and occupation of land on which
the activities occur do not support a claim of Aboriginal title (rights, but not title)
2) In the middle, such traditional activities may be intimately related to a specific
piece of land, so that a group is able to demonstrate a "site-specific" right to
engage in those activities, but not to establish title to that land. Both forms of
activity are protected by subsection 35(1). (connection to the land, but not title)
3) Finally, at the other end of the spectrum, there is aboriginal title itself. …
[A]boriginal title confers more than the right to engage in site-specific activities
which are aspects of the practices, customs and traditions of distinctive aboriginal
cultures. … What aboriginal title confers is the right to the land itself. (par. 138)
Proof of Aboriginal Title
TEST FOR ABORIGINAL TITLE (UNIQUE TEST):

1) Occupation prior to sovereignty (585-6)
• The date of sovereignty can be established with greater certainty than the date of
contact;
Later circumstances may be relevant to title, for instance in cases of dispossession of

traditional lands occurring after sovereignty – e.g. a group may have been displaced after
sovereignty
2) Continuity (“substantial connection”) between present and pre-sovereignty

occupation (586-7)
• Conclusive evidence of pre-sovereignty occupation may be hard to produce.

Therefore, a group claiming Aboriginal title may prove such occupation through
evidence of present occupation, supplemented by evidence of continuity. The
claiming group need not establish "an unbroken chain of continuity," but rather
"substantial maintenance of (their) connection" with the land (par. 153)
3) Exclusive occupation (“intention and capacity to maintain exclusive control”)

(587-8)
• The test for exclusive occupation in Aboriginal title claims must consider the
context of the Aboriginal society in question at sovereignty.
• In this light, exclusive occupation can be demonstrated, depending on the
circumstances, even if other Aboriginal groups were present on or frequented the
lands claimed.
• Aboriginal title can still be claimed even if the land was shared by other groups
• Moreover, evidence of non-exclusive occupation may still establish shared, site-
specific Aboriginal rights short of title – this the right to use the land, but not
actual TITLE
Justification of Infringement of Aboriginal Title
1) Infringement must further a compelling/substantial legislative objective
Substantial legislative objectives are those directed at the purposes underlying the
constitutionalization of Aboriginal rights, i.e., 1) recognition of Aboriginal peoples’ prior
occupation of North America, and 2) reconciliation of that occupation with the
Crown’s assertion of sovereignty (COMPROMISE). – You were here first, we’re here
now, so let’s compromise
A broad range of legislative objectives may justify infringement:
(T)he development of agriculture, forestry, mining and hydroelectric power, the general
economic development of the interior of British Columbia, protection of the environment
or endangered species, the building of infrastructure and the settlement of foreign
populations to support those aims, are the kinds of objectives that are consistent with this
purpose and, in principle, can justify the infringement of aboriginal title. (par. 165)
2) The Infringement must be consistent with the fiduciary relationship
-Have to ask whether they acted I accordance with the honor of the crown in breaching
the fiduciary duty towards aboriginials
The nature of the fiduciary duty is determined by the nature of the title
The Chief Justice pinpointed three aspects of Aboriginal title as relevant in this respect.
1) QUASI-PRIORITY: First, the right to exclusive occupation and use of the land
influences the degree of scrutiny of infringing actions. For instance, a fiduciary duty
requiring that Aboriginal title be given priority does not entail an absolute
requirement, but rather a government demonstration that the process of resource
allocation and the actual allocation reflect the prior interest of the holders of
Aboriginal title (This is the priority “test” from Gladstone).
<e.g. IN THE PROCESS OF BUILDING THIS ROAD, WE THOUGHT ABOUT YOU –

BOTH IN THE PROCESS OF BUILDING THE ROAD AND THE EFFECTS IT
WOULD HAVE – HAVE TO TAKE ABORIGINALS INTERESTS INTO ACCOUNT AT
BOTH THESE STAGES>
2) DUTY TO CONSULT: Second, the fact that Aboriginal title includes the right to
choose the uses of land suggests that the fiduciary relationship may be satisfied by
involving Aboriginal titleholders in decisions respecting their lands. While the Crown
always has a duty of consultation, the nature and scope of that duty vary with the
circumstances – Sometimes they need full permission, sometimes they need very little
3) FAIR COMPENSATION: Third, as a result of the "inescapably economic aspect" of

Aboriginal title, fair compensation will ordinarily be required to fulfill the Crown’s
fiduciary duty when Aboriginal title is infringed. The amount of compensation will vary
according to the nature of the Aboriginal title in question, the severity of the
infringement, and the extent to which Aboriginal interests are accommodated.
Aboriginal Treaty Rights
General Principles of Treaty Interpretation:
• large and liberal interpretation

• doubts resolved in favor of Aboriginal signatories
• sensitivity to Aboriginal perspective
• honor of the Crown
• common intention
R v. Marshall (1999) SCC – page 593
Facts: Marshall, a Mi’kmaq citizen, was charged with selling eels without a license
contrary to federal regulations made pursuant to the Fisheries Act. Marshall claimed he
was entitled to sell the eels by virtue of a treaty right agreed to by the British Crown in
1760. In the treaty of 1760, the Mi'kmaq's ability to trade with non-government persons
was restrained: “and I do further engage that we will not traffick, barter or Exchange any
Commodities in any manner but with such persons or the managers of such Truck houses
as shall be appointed or Established by [the Crown]”.
Issue: Did Marshall have an existing treaty right exempting him from compliance with
the Fisheries act?
-Does the exemption clause actually grant him a positive right to trade, because the truck
houses don’t exist anymore, so should he be able to trade generally?
Decision: Court infers the right to trade fruits of Mi’kmaq hunting and fishing into the
treaty. Court infers the treaty term by reference to the historical record, stated
objectives of the parties, and political and economic context in which these objectives
were reconciled.
HELD: Appeal allowed and acquittal entered on all charges.
o The trade arrangement had to be interpreted in light of the oral promises made by the
Crown during the treaty negotiations. The Crown's promise of the Mi'kmaq's access
to necessaries through trade in wildlife was the key.
o Where a right had been granted, there had to be more than a disappearance of the
mechanism created to facilitate the exercise of the right to warrant the conclusion that
the right was extinguished. (i.e. the main point of the agreement was access to
necessaries, not to provide Truck houses or limit who Mi’kmaq could trade with).
Analysis:
Evidentiary Sources
-Cannot follow a strict/narrow interpretation, the historical and cultural context is needed,
which could involve using extrinsic evidence
-The Court’s obligation is to “choose from among the various possible interpretations
of the common intention [at the time the treaty was made] the one which best
reconciles” the Mi’kmaq interests and those of the British Crown (quote from Sioui).
The 1760 Negotiations

Mi’kmaq objective: access to the European “necessaries” on which they had come to
rely
British objective: peaceful relations with a self-sufficient Mi’kmaq people
These objectives could not have been achieved unless the Mi’kmaq were assured at the
same time of continuing access, implicitly or explicitly, to wildlife to trade.
Therefore, the restrictive trade covenant of the written treaty was inadequate and
incomplete by itself. The common intention in 1760 must be given effect, not just the
terms of the written document.
Ascertaining the Terms of the Treaty
-The court will use the “officious bystander test” <THIRD-PARTY OBJECTIVE TEST>
to fill in implicit assumptions: “if the Mi’kmaq are to have something to trade, they
obviously need to be given the right to hunt and fish.”
Rights of the Other Inhabitants
-Aboriginal treaty rights should be given priority over other people, because they’re
constitutionally under s. 35
Honor of the Crown
-The honor of the Crown is always at stake in its dealings with Aboriginal people
- -In this case, it would be dishonorable of the crown to give them an “an empty
shell of a treaty promise”
The Limited Scope of the Treaty Right
-The amount of fishing can be limited – but this limitation can still be enforced without
violating treaty rights
-To test for this, use the “Badger Test” (SEE BELOW)
“Necessaries” means a “moderate livelihood” (Van der Peet) and includes such basics as
“food, clothing and housing, supplemented by a few amenities” but not the accumulation
of wealth (Gladstone). It addresses day-to-day needs. This was the common intention in
1760.
Application to the Facts of This Case
-This test from Sparrow was applied to licensing schemes in Adams:
“Parliament may not simply adopt an unstructured discretionary administrative regime

which risks infringing Aboriginal rights in a substantial number of applications in the
absence of some explicit guidance.
-Badger holds that the test for infringement under s. 35(1) (Sparrow test) is the same for
both Aboriginal and treaty rights. Therefore, the test from Adams (above) applies.
<THE TEST BASICALLY STATES THAT THE MINISTER MUST NOT BE GIVEN
TOO MUCH DISCRETION IN AN ABORIGINAL TREATY RIGHT>
-For these reasons, the regulations are a prima facie infringement of Mi’kmaq treaty
rights and are inoperative against the appellant unless justified under the Badger test.
-The prohibitions on catching and retaining fish without a license, on fishing during
the close time, and on the unlicensed sale of fish (…) are inconsistent with the treaty
rights of the appellant contained in the Mi’kmaq treaties of 1760-61 and are therefore
of no force or effect or application to him by virtue of ss.35(1) and 52 of the
Constitution Act, 1982.
Duty to Consult
-The duty to consult with Aboriginal peoples arises whenever the Crown is contemplating
a course of action that could have an impact on Aboriginal rights or on lands subject to a
claim of Aboriginal title, even if the Aboriginal rights or title at issue has been asserted
but not yet proven
Haida Nation (2004) SCC - supp.18
• Decision involved Aboriginals who had a land claim to a specific area and
surrounding waters and the provincial government was authorizing forestry to take
place on the land that the Aboriginals were claiming before the decision come out
from the court
• The Supreme Court of Canada held that the government cannot just go ahead and
build a highway before the land claim was established in court. They must consult
with the Aboriginals first. The degree of consultation depends on the strength of
the claim and the severity of the resource, however it must be meaningful
consultation.
• Therefore the building of the highway as it were was invalid.
• Crown had a duty to consult and accommodate the Haida Nation before permitting
the harvesting of timber on lands subject to prima facie case of Aboriginal title
Taku River Tlingit First Nation 2004 SCC, supp.20
Crown had satisfied its duty to consult regarding construction of road through TRTFN’s
traditional territory
“The duty to consult varies with the circumstances. It arises when a Crown actor has
knowledge, real or constructive, of the potential existence of the Aboriginal right or title
and contemplates conduct that might adversely affect it. This in turn may lead to a duty
to accommodate Aboriginal concerns. Responsiveness is a key requirement of both
consultation and accommodation. The scope of the duty to consult 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.”
Mikisew Cree First Nation 2005 SCC, supp.21
-The duty to consult is triggered at a low threshold, but adverse impact is a matter of
degree, as is the extent of the content of the Crown’s duty. Here, the duty to consult is
triggered
- Crown breached a duty to consult before building a road on land subject to treaty
right to hunt, fish and trap
Distribution of Legislative Authority
- s. 91(24) confers Parliament the authority to pass laws in relation to “Indians, and
Lands reserved for the Indians.”
- R v. Southerland (1980): a province, generally speaking, is not entitled to “single
out” Aboriginal peoples.
- A province, may in some circumstances, regulate Aboriginal peoples by “laws of
general application.”
- s.88 of the Indian Act: renders provincial laws of general application applicable to
Indians if they don’t conflict with treaty rights or deal with matters dealt with by the
Indian Act
- s.35(1) of the Constitution Act, 1982: provincial or federal legislation cannot violate
Aboriginal or treaty rights unless the government can demonstrate that the violation is
consistent with the honour of the Crown
Delgamuukw v. British Columbia (1997) SCC – page 607
Issue: The province wanted to extinguish aboriginal rights on its own, did the province
have the power to extinguish Aboriginal rights after 1871, either under its own
jurisdiction or through the operation of s.88 of the Indian Act?
Primary Jurisdiction
“Lands Reserved for Indians”

- St. Catherine’s Milling: Although on extinguishment of Aboriginal title,

the province would take complete title to the land, the jurisdiction to
extinguish lies with the federal government.
“Indians”
- s.91 (24) protects a “core” of Indianness from provincial intrusion through

the doctrine of interjurisdictional immunity.
- The core falls within the scope of federal jurisdiction over Indians.
- The core encompasses Aboriginal rights, including the rights that are
recognized and affirmed by s. 35(1)
- Laws which purport to extinguish those rights therefore touch the core of
Indianness which lies at the heart of s. 91(24), and are beyond the legislative
competence of the provinces to enact.
- The core of Indianness encompasses the whole range of Aboriginal rights
that are protected by s. 35(1). Those rights include rights in relation to land
(that part of the core derives from s. 91(24)’s reference to “Lands reserved for
the Indians.”) But those rights also encompass practices, customs and
traditions which are not tied to land as well (that part of the core can be traced
to federal jurisdiction over “Indians”.)
Provincial Laws of General Application
- s. 91(24) gives exclusive jurisdiction over Indians and Indian lands to the federal
government and precludes provincial laws in relation to those matter.
- Provincial laws which single out Indians for special treatment are ultra vires
because they are in relation to Indians and therefore invade federal jurisdiction
(Interjurisdictional Immunity)
- Notwithstanding s. 91(24), provincial laws of general application apply proprio
vigore to Indians and Indian lands
- However, a provincial law of general application cannot extinguish Aboriginal
rights
Section 88 of the Indian Act
- Provincial laws which would otherwise not apply to Indians proprio vigore,
however, are allowed to do so by s.88 of the Indian Act, which incorporates by
reference provincial laws of general application.
- S.88 does NOT “invigorate” provincial laws which are invalid because they are in
relation to Indians and Indian land (i.e. despite s.88, provincial laws that are in
pith and substance related to Indians and Indian lands are still invalid)
- S.88 only extends the effect of provincial laws of general application which
cannot apply to Indians and Indian lands because they touch on the Indianness at
the core of s. 91(24) (i.e. s.88 allows provincial laws of general application –
meaning in pith and substance related to some valid provincial head of power and
not singling out First Nations- to regulate Aboriginal rights at the core of
Indianness) For example, a provincial law which regulated hunting may very well
touch on the core and although such a law would not apply to Aboriginal people
proprio vigore, it would still apply through s.88 of the Indian Act, being a law of
general application. Such laws are enacted to conserve game and for the safety of
all.
- Provincial laws of general application which, through the power delegated by
s.88, apply to Aboriginal people CANNOT extinguish Aboriginal rights since
s.88 does not show the required clear and plain intent to extinguish Aboriginal
rights. S.88 does not even suggest such an extinguishment.
s.88 of the Indian Act: renders provincial laws of general application applicable to
Indians if they don’t conflict with treaty rights or deal with matters dealt with by the
Indian Act
- s.35(1) of the Constitution Act, 1982: provincial or federal legislation cannot violate
Aboriginal or treaty rights unless the government can demonstrate that the violation is
consistent with the honour of the Crown
Dick v. The Queen (1985) SCC – page 611
Facts: Dick killed deer out of season contrary to provincial Wildlife Act.
Issues:
1) Is the Wildlife Act inapplicable to Indians as invading federal jurisdiction under
s. 91(24)?
2) If the Act is inapplicable, can the provincial law nevertheless apply to Indians
by virtue of s.88 of the Indian Act?
Issue #1
- SCC acknowledges that there was extensive evidence at trial capable of

supporting the claim that hunting is part of the core “Indianness” of the Alkali
Lake Band. However, SCC states that there was also enough evidence to support
the opposite conclusion
- Therefore, SCC does not decide issue #1, but does assume that the dissent of the
Court of Appeal Judge is correct i.e. hunting IS a part of the core “Indianness” of
the Alkali Lake Band
Issue #2
- The test for determining whether a provincial law is a law of general application
within the meaning of s.88 must analyze both legislative intent (i.e.
purpose/policy) and the effect of the legislation.
- Effect can evidence intent

- In the present case, there is no evidence that the province enacted the Wildlife Act
for the purpose of singling out Indians
- Therefore, even if we assume that the Wildlife Act affects the core of
“Indianness”, it is a law of general application and it still applies to Indians
because of s.88
Class Notes on Dick: -- <THIS IS HOW THINGS HAPPENED BEFORE s. 35, THIS
WOULD BE DECIDED DIFFERENTLY TODAY>
can provincial wildlife legislation regulating hunting apply to Aboriginal people? (1982
Act does NOT apply retroactively so Charter does not apply, so Dick had to argue under
separation of powers)
was provincial law in pith and substance inter vires the province? YES – property and
civil rights and it was a law of general application (it did not single out Aboriginal
people)
okay, it’s valid, but does it have to be read down due to the interjurisdictional immunity
doctrine? Hunting is at the “core of Indianness” so the provincial law does not apply of
its own force  read down
Impact of s. 88: Dick not exercising a treaty right, Wildlife Act is a law of general
application (absence of intent to single out aboriginals)  provincial law does apply
would the result in Dick have been different if Dick was exercising a treaty right? see
Morris 2006 SCC
- the provincial law would not be applicable since it would conflict with a treaty
right (s.88 would not apply)
would the result in Dick have been different if the hunting at issue occurred after April
17, 1982?
- violation of Aboriginal rights since the activity was central and integral to his
distinctive to his culture prior to aboriginal contact and some continuation of
practice
- Sparrow: precisely because it was a law of general application, it will not survive
the test the government did not give any priority to the Aboriginal right to hunt
why are provincial family laws dealing with rights of ownership and possession of
family homes (eg Part II of the Ontario Family Law Act) not applicable to “Indians”
on reserves?
- provincial laws dealing with possessory rights in land can NOT apply to reserves
(they must be restricted in their application)
- what about s.88? lands are already dealt with in the Indian Act, so s.88 does NOT
apply.
Kitkatla Band v. BC (2002)
- upheld the provincial Heritage Conservation Act as in pith and substance in

relation to “property and civil rights” notwithstanding the fact that the challenged
provisions dealt specifically with the preservation of Aboriginal cultural artifacts.
- The impugned provision were found to be sufficiently well integrated within the
legislation to be necessarily incidental
- Note that in this case, there was no evidence adduced that the provisions of the
HCA affected the essential and distinctive values of Indianness. Therefore, there
was no question of paramountcy or interjurisdictional immunity in this case
Governance
-Is the right to self-government for Aboriginals protected by the Constitution

-The right to self-government was never officially extinguished by the government or
recognized by the courts
- The SCC left the issue open in Pamajewon 1996. In Delgamuukw 1997, the Court
indicated that it is not willing to consider the issue defined in "excessively general terms"
and remitted the question to trial. The B.C.C.A. had split on the question of whether
aboriginal peoples in B.C. have an existing Aboriginal right of self-government:
Delgamuukw v. B.C. (1993), 104 D.L.R. (4th) 470 (B.C.C.A.).
R v. Pamajewon (1996) SCC – page 619
- The Court rejected a claim by the Shawanaga and Eagle Lake First Nations to
operate and regulate gambling activities on their reserves without complying with
the licensing provisions of the Criminal Code.
- The claimants took the position that the rights claimed were part of their broader
rights to self-government and to manage economic development in their
communities.
- Lamer C.J. was willing to "assume without deciding that s. 35(1) includes self-
government claims". Any such self-government claims, he says, are claims for
Aboriginal rights and just like any other Aboriginal rights, they need to pass the
Van Der Peet test.
- In Lamer’s view, the evidence did not establish that gambling, or the regulation of
gambling, was an integral part of the distinctive cultures of the Aboriginal
claimants. Informal gambling activities took place on a small scale prior to
contact, but the Court found that there was no historical equivalent of the "large
scale", "twentieth century phenomena" at issue in this appeal
PART 3 – THE CHARTER
4 stages of Charter analysis
1) Does the Charter apply to the facts?
2) Does the challenged government action interfere in purpose or effect with the exercise
of a Charter right or freedom? (ss.2-23)
3) If so, is the interference with the exercise of rights and freedoms a “reasonable limit”,
“prescribed by law”, that can be “demonstrably justified in a free and democratic
society”? (s.1) – shift of onus on the government <OAKES TEST>
4) If not, what is the appropriate remedy? (ss.24 and 52) – courts are given discretion
over what the appropriate remedy is for a Charter infringement
I. Interpreting Rights
A. Purposive Approach
Hunter v. Southam [1984] SCC – page 738

Facts: A search of newspaper offices was carried out by the Combines investigations
branch. The statutory basis for the search did not require a warrant. One newspaper
challenged the constitutionality of the Combines investigation Act under s. 6 of the
Charter – protection from unreasonable search and seizure.
Issue: Whether the types of searches permitted under the act were “unreasonable” and
thereby invalid under s. 6 of the Charter.
Decision: Impugned provisions of the CIA were found invalid.
Analysis: Importance of this case is the court’s approach to interpretations of Charter
provisions.
Ratio: Court expressed the view that the proper approach to the definition of
Charter rights and freedoms is purposive. The meaning of a right/freedom is to be
ascertained by an analysis of the purpose of the guarantee. SCC stated that a
judgment about the scope or value of a particular right can only be made after the
court has "specified the purpose underlying" the right or "delineated the nature of
the interests it is meant to protect"
Therefore, government’s search and seizure powers are not justified in light of a
reasonable objective; rather, courts must consider the reasonableness of the impact on the
subject of the search and seizure.
R v. Big M Drug Mart Ltd (1985) SCC – page 740

(Included in this section to demonstrate SCC’s purposive approach to Charter
interpretation.)
Analysis: Charter provisions must be given a large and liberal interpretation

Must consider the purpose and effect of the government action
Interpretation must be “purposive”: i.e., a Charter right of freedom should be interpreted
“in light of the interests it was meant to protect”
To determine the purpose of a Charter right or freedom (Big M):
1. Must be considered with reference to the character and larger objects of

Charter
2. Language used in the text to describe right or freedom
3. Historical origins of the concepts enshrined
4. Meaning and purposes of associated rights: a generous rather than legalistic
interpretation (purposes: protection from coercion or state orthodoxy,
protect individual conscience from state/church coercion)
B. Aids to / Sources of Interpretation
1) Interpretive Provisions in the Charter
- S. 25, 27, 28 - don’t create new rights, but provide guidance to how Charter should be
interpreted
2) Parliamentary and Committee Debates
- What weight should courts place on drafting history?

- Lamer said should be admissible, but not determinative, given only little weight
- Because of multiplicity of actors - difficult to determine whose opinion should
matter
- Need for dynamic interpretation - constitution should not be frozen in time
the official version is that history should not weigh heavily; however, in practice,
legislative history does play an important role
First Charter case - SCC used legislative history: Quebec was said to go against the
very reason s. 23 was legislated
Prosper – legal aid case – can hire own lawyer, but is there a Charter right for state-
funded counsel in criminal cases? NO  when the drafting history is very clear
(amendment was originally offered to this effect, but rejected), then the court should
not interfere
3) Canadian Pre-Charter Jurisprudence
Federal statute - Canadian Bill of Rights (Applies only to federal government)

-Sets out range of rights/freedoms that overlap with Charter
-Main difference is the CBR could be repealed but Charter is constitutionally entrenched
because CBR purported to give new rights and freedom, courts gave it little weight since
it could be overturned or modified at any point by the legislature the court’s refusal to
follow CBR jurisprudence in Charter interpretation is a clear break with the tradition of
parliamentary supremacy
CBR jurisprudence:
Bliss – discrimination against pregnant women is not gender based, it is “pregnancy

based” (HA!)
Lavale – provision of Indian Act – Status woman lost status if she married “out”; the
same was not true for status males  court decided this was not gender discrimination
since the law applied equally to all women (HA!)
Statutory human rights jurisprudence (re equality rights in s.15)
statutory anti-discrimination law IS important to Charter interpretation

do NOT leave this out when interpreting equality rights in s.15
4) International Sources
foreign law (i.e. comparative constitutional jurisprudence) is “relevant and

persuasive” (744-5)
- US constitutional interpretation is usually where courts turn to re Charter

interpretation (we share constitutional aspiration/cultural values and also they have 2
centuries of bill of rights interpretation)
- Engagement with foreign law is sporadic especially in a global context (we export
interpretation methods rather than import them)
- we should always be VERY weary of following US rights jurisprudence (our Charter
rights can be limited by s. 1)
- given their different structures and historical contexts, similarly worded rights in US
and Canada are given different interpretations
international jurisprudence: Charter should be interpreted in a manner consistent

with Canada’s international commitments (743-8)
5) Charter case law
- 20 years’ worth of Charter jurisprudence
Three types of claimants have standing to raise a Charter argument:

1. Anyone whose rights are directly affected.
2. Anyone who has been charged with an unconstitutional offence, whether
corporate or individual. (Big M & Morgentaler)
3. Anyone who satisfies public interest standing. To satisfy the test for standing:
a. The government action must raise a serious issue of invalidity
b. The plaintiff must have a genuine interest. (not a mere busy-body)
c. There must be no other reasonable and effective way to bring the issue
before the court
II. Defining Limitations: Section 1 – page 748

Section 1 in a nutshell:
• “guarantees” rights and freedoms subject only to reasonable limits
• Limits are prescribed by law – limitation must originate in a statute, regulation or
common law rule (Therens 1985 SCC, 749); You cannot argue that your Charter rights
have been infringed unless there is legislation that infringes them (for example: you
cannot claim the police have violated your Charter rights unless they were acting under
some statutory authority that violates Charter rights)
• pressing and substantial objective
• proportionality test
– rational connection
– minimal impairment
– proportionate effects
A. Prescribed by Law
1) ACCESSIBILITY - The law must be adequately accessible

2) INTELLIGIBILITY - A norm cannot be regulated as “law” unless it is
formulated with sufficient precision to enable the citizen to regulate his conduct: he
must be able, if need be with appropriate advice - to foresee, to a degree that is
reasonable in the circs, the consequences which a given action may entail.
3) VAGUENESS - Cannot be too vague; need precision inherent in notion of law
R v. Nova Scotia Pharmaceutical Society [1992] SCC – page 751
Facts: Accused was charged under the CIA for “conspiring to lessen competition unduly
in the sale of competition drugs”. They challenged the constitutionality of the charges,
on the grounds that the provisions under which they were charged were
unconstitutionally vague.
Decision: Appeal dismissed. Provisions are not so vague that they would be rendered
unconstitutional.
A law/provision is unconstitutionally vague if:
- Vague provision does not provide an adequate basis for legal debate – you can’t reach
a conclusion about what it means by applying legal reasoning to it
- Does not sufficiently delineate any area of risk, and thus can provide neither fair
notice to the citizen nor a limitation of enforcement discretion – i.e. it doesn’t tell you
what you can and cannot it
- Offers no grasp to the judiciary – the judiciary can’t grasp it
For these reasons, an unintelligible provision gives insufficient guidance to the

courts and is therefore unconstitutionally vague.
- Threshold for finding a law unconstitutionally vague is relatively high

- However, courts must be wary of using the doctrine of vagueness to prevent or
impeded State action in furtherance of valid social objectives; a measure of generality
is also sometimes necessary to promote greater respect for fundamental rights.
- (Basically, the court fails to provide any coherent basis for actually determining
vagueness – seems more to do with policy considerations).
Bruce Ryder: – only a drastically vague law will likely fail the test; as long as there is
some degree of certainty that can open a legal debate, the test is met
B. Justification
1. The Oakes Test: The SCC’s first comprehensive treatment of the meaning of Section
1 came in Oakes. Oakes remains the primary referent for this stage of Charter
adjudication.
R v. Oakes [1986] SCC – page 756
Facts: Appeal concerning constitutionality of s. 8 of Narcotic Control Act, which

provides that if the court finds accused in possession of a narcotic (beyond RD), he/she is
presumed to be in possession for the purposes of trafficking UNLESS the accused can
establish the contrary (on BOP).
SCC: Court devised ‘Oakes Test’ (for deciding whether a constitutional right may be
overridden)
1) Is the constitutional infringement prescribed by law? (Set out in a legal rule,

publicly accessible, not too vague – as per NS Pharmaceutical).
2.) Is the legislative objective significant (pressing and substantial in a free and
democratic society) enough to warrant overriding a constitutional right?
3) Are the means chosen to achieve this objective reasonable, demonstrably justified
and PROPORTIONATE?
a) Rational Connection - The measures adopted must be carefully designed to

achieve the objective in question; must not be arbitrary, unfair or irrationally based.
b) Minimal Impairment - Even if rationally connected to the objective, the means
should impair “as little as possible” the right or freedom in question.
c) Proportionality – Must be proportionality between the negative effects of the law
and the legislative objective.
Held: SCC held that the violation disputed by Oakes was NOT justified since it failed the
first part of proportionality test  there is not a sufficient rational connection between
proof of possession and presumption of intention to traffic.
The Subsequent Development of the Oakes Test: Context and Deference – page 763
-A new contextual approach

Origins of the “contextual” approach to s. 1 lie in the following case (Edmonton Journal):
Edmonton Journal v. Alberta (Attorney General) [1989] SCC – page 764
Facts: Newspaper challenged Alberta legislation which limited the publication of info
arising out of matrimonial legal disputes. (Haigh: Facts not important. Case is valuable
for its elucidation of contextual approach to s. 1 analysis.)
Decision: Court upheld constitutionality of legislation.
Analysis:
Must look at all the rights in the Charter in their CONTEXT and look at the practical
consequences of violating those rights.
SCC recognizes particular right or freedom may have different value depending on
context
Contextual approach attempts to bring into sharp relief the aspect of the right or freedom
which is truly at stake in the case as well as the relevant aspects of any values in
competition with it
Freedom of expression may have a greater value in a political context than in does in the
context of disclosure of details to a matrimonial dispute.
Ratio: The right/freedom in question must be assessed in context rather than in the
abstract. Law is a pragmatic instrument and we shouldn’t think about rights and
freedoms devoid of reality. This necessitates taking values into account. There will
be different contexts, values to consider. Some rights are more worthy of protection
than others.
Irwin Toy Ltd. v. Quebec (AG) [1989] SCC – page 766

(Case represents “high water mark of judicial deference”).
Court held that greater deference to legislative choice is appropriate in a variety of

circumstances: where the government has sought to balance competing rights to
protect a socially vulnerable group; to balance the interests of various social groups
competing for scarce resources; or to address conflicting social science evidence as
to the cause of a social problem.
This case introduced a distinction between cases in which the government is seeking
to mediate the interests of competing groups (where a more deferential application
of s. 1 is appropriate), and cases in which the government is the singular antagonist
of the individual whose right has been infringed (where a more stringent application
of s. 1 is warranted).
Dagenais v. Canadian Broadcasting Corp

Court added a refinement to the third part of the Oakes proportionality test. The
Dagenais refinement requires that in balancing the positive and negative effects of the
impugned law, the court needs to compare the actual impact of the law on the affected
right with the actual contribution the law makes to its pressing and substantial purpose.
As such, the focus here is on actual effects, not abstractions. This call for a more
contextual approach has been interpreted by the court to also mean a greater flexibility in
the application of each of the steps of the Oakes test and greater deference to legislative
judgment (in certain circumstances) when applying the test. Irwin Toy (above) is a good
example of this deferential approach.
Thompson Newspapers Co. v. Canada [1998] SCC – page 768
Facts: Federal government prohibited the release of Opinion polls 3 days before
elections (under Canada Elections Act) as a means of curtailing misleading info.
Issue: Is elections Act justified under s. 1? (Court quickly affirms that 2b HAS, in fact,
been infringed – courts will generally hold that any “expressive content” constitutes a
right protected under 2b).
Decision: Restrictions held to be an unjustified limit on freedom of expression. No
evidence that release of opinion polls would negatively impact upon voters.
(Decision is important for its discussion and synthesis of the Court’s “contextual
approach” to s. 1.)
Analysis: “The analysis under s. 1 of the Charter must be undertaken with a close
attention to context”.
Factors to consider under contextual approach:
The vulnerability of the group which the legislator seeks to protect (Irwin Toy)
The group’s own subjective fears and apprehensions of harm (Keegstra).
The inability to measure scientifically a particular harm in question, or the
efficaciousness of a remedy (such evidential difficulties should not preclude section
1 justification - as in R. v. Butler).
The nature of the activity/expression being infringed.
RJR Macdonald Inc. v. Canada [1995] SCC – page 770
Facts: Tobacco companies brought 2(b) Charter challenge against government

regulations restricting cigarette advertising; also challenged government regulations
requiring them to place warnings on cigarette packages.
Issue: Is the legislation justifiable under section 1?
Majority:
Parliament must justify ANY restriction on right (on balance of probabilities)

Government doesn’t meet its onus in this case.

Government didn’t adduce sufficient evidence to demonstrate that alternative measures
could have been used to achieve same purpose.
Dissent (LaForest):
Bans on ads are restrictions on speech and forced warnings violation of right to remain
silent. If you are forced to say or not to say something they are both equal breaches of
freedom of expression
Oakes is not a ‘unified’ rigidly constructed test. Evidential standards in Oakes will
necessarily vary depending upon the case you are dealing with. Especially when
there is NO definitive scientific evidence.
New reading of Oakes which is unsupported by other SCC judgments.
Probably falls under the IRWIN category of the state intervention in the protection of
citizens.
Ratio: Court is wary of unhinged contextual, deferential s. 1 analyses (as per Irwin
Toy). Holds that context, deference and the standard of proof (flexible and realistic)
must NOT be attenuated to the point that they relieve the state of the burden
imposed by the Charter.
- Nothing in jurisprudence suggests that contextual approach reduces obligation on

state to meet burden of demonstrating that limitation on rights imposed by law is
reasonable and justified.
- Context essential; but cannot be carried to extreme of treating challenged law as
unique socio-economic phenomenon, of which Parliament deemed best judge.
R v. Lucas [1998] SCC – page 771

(Only McLachlin’s dissent is excerpted)
- McLachlin J dissented from the majority judgment of Cory J, who upheld defamatory
libel provisions of the Criminal Code as a justified restriction on the freedom of
expression.
- The excerpt is basically her explanation of why she differed from Cory.
- In his judgment, Cory J took into consideration the fact that defamatory libel is of
“negligible value”, and thus it is entitled to “minimal protection.”
- McLachlin says we have to be careful not to let the discussion of context preempt the
judgment: “The initial conclusion that the expression is of low value may thus dictate
the conclusion on the subsequent steps of the analysis in a circular fashion.”
- Instead, such contextual considerations should be left to the final stage of the
analysis, which engages the balancing of values envisioned by the contextual
approach.
- At that stage, the crown has already had to establish the pressing and substantial
nature of the legislative objective, the rational connection between the objective and
the limitation of the right, and the minimal impairment or appropriate restraint,
independent of any subjective considerations of value. Then the task is to determine
whether the benefits of the limitation outweigh its detrimental effects.

- This way, the S.1 analysis remains both flexible and contextual.
- “Legislative limits on expression that fall far from the core values underlying s.2(b)
are easier to justify, not because that standard of justification is lowered, but rather
because that beneficial effects of the limitation more easily outweigh any negative
effects flowing from the limitation.”
Ratio: Cory J.’s section 1 analysis was preempted by his acknowledgement that the
type of speech infringed was of minimal value, and thereby entitled to “minimal
protection”. In dissent, Mclachlin warns that such value judgments should be left to
the final stage of the section 1 analysis, so as not to preclude a fair analysis of the
nature of the infringement.
Section 1 Summary
Objective of infringing law
• objective of the infringing law must be “sufficiently important” to justify overriding constitutional rights or
freedoms (758): Big M 1985 SCC; Oakes 1986 SCC
• must be “pressing and substantial” (758) - this is usually not a great hurdle for the government in practice
• purposes directly contrary to Charter values do no qualify (e.g., Big M, note 1 759)
• the government must rely on the legislative intent at the time of enactment, not a new or “shifting” objective
(Big M, note 1 759-60)
• nor can the government rely on an ultra vires objective (Big M) – if the purpose is a secular day of rest, then it is
no longer criminal law! It relates to property and civil rights and is therefore UV the Parliament
• fiscal restraint, on its own, cannot normally qualify as a pressing and substantial objective; it can, however, when
there is a “fiscal crisis”: NAPE 2004 SCC (supp.43)
• government rarely fails to demonstrate that infringing laws meet the “pressing and substantial objective” test
• nevertheless, how objective is framed has an important impact on the outcome of the proportionality
analysis (e.g. Irwin Toy 1989 SCC)
Majority of SCC: objective is protection of young children from manipulative advertising

Dissent: objective is to promote welfare of children
Even though both majority and dissent passed the law on pressing and substantial branch, the dissent’s characterization
leads to a less clear ration connection later in the test.
• focus should be on the objective of the infringing measures (e.g. Vriend 1998 SCC)
Proportionality: 1. rational connection
• means/ends rationality: measures “must not be arbitrary, unfair or based on irrational considerations” (Oakes,
758)
• law’s means must contribute to the achievement of its objectives
• easily satisfied in most cases
Proportionality: 2. minimal impairment
• the turning point of the s.1 analysis in most cases

• means chosen must be the least restrictive manner of accomplishing the objective of the impugned provisions
• requires a consideration of alternatives available to government
• rigor of test (“necessity”) has been reduced in many cases since Oakes: e.g., “as little as is reasonably
possible” test in Edwards Books (747)
• Necessity or reasonableness? How much deference?
• Some factors the courts consider in their contextual analysis are:
1) the importance of the rights or freedoms at issue in the specific context (eg Edmonton Journal 1989
SCC, 764; Thomson Newspapers 1998 SCC, 768);
2) whether the legislature carefully weighed the competing rights or freedoms at issue;
3) whether the legislation protects a vulnerable group (eg Irwin Toy 1989 SCC, 766);
4) whether the claimant is a member of a relatively powerful group (Irwin Toy);
5) whether the issue requires the consideration of complex social science evidence (Irwin Toy);
6) whether the law seeks to reconcile the legitimate claims of competing groups (Irwin Toy);
7) Whether the law allocates scarce resources (NAPE).
Proportionality: 3. proportionate effects
• must be a reasonable balance between the negative effects on the exercise of Charter rights or freedoms and
– the importance of the objective (Oakes); and
– the positive effects of the government action (Dagenais 1994 SCC, 761 note 3)
Summary of components of s.1 analysis
• limit authorized by intelligible law?

• objective of infringing law?
• means selected to achieve objective?
• availability of alternative means?
• negative effects on the exercise of rights or freedoms?
• positive effects of infringing measure?
III. The Override/Notwithstanding Clause (s.33) – page 775
• Enables parliament or legislature to override s 2 or s.7-15 of the Charter

 If a statute contains an express declaration that it is to operate notwithstanding a
provision in s.2 or 7-15 of Charter, then by virtue of s.33(2) the statute will operate
free from the invalidating effect of the Charter provision referred to in the declaration
 Through the use of this power, Parliament or Legislature is enabled to enact a statute
limiting (or abolishing) one or more of the rights or freedoms guaranteed in 2, 7-15
 Override power, if exercised, removes the statute containing the express declaration
from the reach of the Charter provisions referred to in the declaration without the
necessity of any showing of reasonableness or demonstrable justification
 Subject to a temporal restriction - sunset clause - express declaration will
automatically expire at the end of five years
 Rationale is to encourage legislature to reconsider the issue regularly
 Must “expressly” declare that a statute is to operate notwithstanding a Charter right
 Not to be inferred, must have “manner and form” requirement that is essential to
validity of any statute enacted in violation of provision contained in 2,7-15
 Express declaration must be specific to the statute, must be in the statute itself
 Must be specific as to Charter right which is to be overridden
Ford v. Quebec [1988] SCC – page 775
Facts: Quebec, only province to oppose the creation of the Charter, wanted to create an
automatic rule that would have ALL their legislation operate notwithstanding the Charter.
Issue: Is an all-encompassing (omnibus) use of the override valid?
Decision:
- SCC held that omnibus reference to rights was sufficient; not reasonable to require a
reference that was particular to the statute containing the declaration, because a
legislative body “might not be in a position to judge with any degree of certainty
what provisions of the Charter might be successfully invoked against various aspects
of the Act in question”
- SCC held normal presumption against retroactivity should be applied to the language
of s.33, and the section should be construed as permitting “prospective derogation
only.”
Ratio: The court held that Quebec could enact this blanket legislation immunizing
all their legislation from Charter scrutiny, under section 33 (need express language
such that the infringement on Charter rights would be sufficiently drawn to public
attention). However Quebec could not do this retroactively (would not apply to
legislation already in effect prior to the omnibus legislation).
General Class Comments:

- Despite ease with which s. 33 may be invoked, use of the override would be
politically crippling for most governments
- Mechanism is simple but in reality, the political costs of invoking s.33 will keep
governments in check.
- If the federal government had used s. 33 selectively since 1982, it might be
acceptable to use it now. But we have created a culture in which the use of the
clause would now be met with political disapprobation.
The Application of the Charter – page 781
WHO THE CHARTER APPLIES TO
- Interpretation of s. 32(1) of Charter:

"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 Yukon Territory and Northwest Territories; and to the legislature and
government of each province in respect of all matters within the authority of
the legislature of each province"
- In Dolphin Delivery the SCC concluded that the Charter does not apply directly
to private actors.
Retail, Wholesale and Department Store Union, Local 580 v. Dolphin

Delivery Ltd [1986] SCC – page 781
Facts: The striking employees of Purolator protest at the headquarters of a third party
that provides services to their employer. The third party says that the union is barred
from protesting at their headquarters by the common law tort of inducing breach of
contract. The union argues that this common law rule should be struck down because it
violates their right to freedom of expression.
Issue: To what extent does the Charter apply to the common law and private parties?
Decision: The Charter only affects the activities of government. “Government” is
limited to the legislature, executive, and administrative boards -- NOT the court (common
law). When an action involves a government party, whether it is a public or private
action, the Charter may be applicable to the common law. However, in the event of a
private action involving private parties, the common law will NOT be subject to Charter
provisions.
Ratio: The common law rules governing the relations between individuals and
groups lie outside the reach of the Charter. The Charter applies to governmental
action or state action, but not to the common law, unless a governmental party is
seeking to rely on that common law.
II. Governmental Action – page 786
A. Governmental Actors
- If an entity is part of the government, then the Charter will ordinarily apply to all of
its actions.
- The reference to Parliament and provincial legislatures in s. 32 of the Charter means
that when laws are passed by those bodies, they must comply with the Charter.
- In Dolphin the court held that the term ‘government’ did not include the judiciary.
This ruling has been called into question.
- The case law makes clear that not all entities which have powers conferred on them
by statute, or are controlled to some degree by government or receive public
funding will qualify as government for the purposes of s. 32.
1. Entities Controlled by Government
McKinney v. University of Guelph [1990] SCC – page 787
Facts: Eight faculty members and a librarian challenged the mandatory retirement
policies of four Ontario universities. They argued that the universities’ policies violated
the equality guarantees found in s. 15 of the Charter by discriminating in the basis of age.
Involves mandatory retirement policies (at 65 profs and staff had to retire)
Issue: Is the Charter applicable to the actions/policies of universities – i.e. are universities
properly characterized as ‘government actors’ under s. 32 of the Charter?
Decision: Court held that university was NOT a government actor.
Analysis: LaForest talks about a two-stage test; Haigh calls it “an embellishment upon
what they did in Dolphin delivery”.
1) Is the act one of government? (For the purpose of s. 32)

2) Even if the act is not itself one of government, is the particular act in question
ascribable to government? (Look at the nature of the activity rather than the
entity performing it).
While Universities are created by statute, subsist on government funding, and serve a
public function, there remains a great deal of independence between universities and
government. Government do not have a hand in making University policies. The
government cannot determine who the university hires as faculty, who they admit, and
most of the individuals who sit on the boards of universities are not appointed by the
government. Since there is a great deal of autonomy between universities and
government, universities are not government bodies.
Ratio: Just because an organization is created by statute, relies on government

funding for its survival, and serves a public purpose does not render them a
government body. The government must have some type of direct control in shaping
the organization’s policies for it to be considered a government body.
Note: Court held that universities were not subject to the charter, but COLLEGES ARE.
They are managed by a board appointed by the government, and they are not statutory
creatures. Ministers of Education generally must approve college bylaws. According to
the SCC, those two things create enough of a connection between government and
colleges to render colleges subject Charter regulation.
2. Entities Exercising Governmental Functions
Even if an entity is not part of apparatus of gov't because it is not subject to routine or
regular ministerial control, it may nevertheless qualify as gov't for purposes of s.32
Charter if it is exercising governmental functions.
Godbout v. Longueuil [1997] SCC – page 795
Facts: Municipality enacted law stipulating that only those who live in municipality can
work for the municipality. An employee moved out of the area and was fired. He
challenged termination on grounds that the legislation violated mobility rights under the
Charter. Municipality argued that it was not subject to Charter provisions.
Issue: Are municipalities subject to Charter regulation?
Holding: Majority held municipalities are subject to Quebec Charter and that it was
unnecessary to address the Canadian Charter. Only La Forest (concurring minority
opinion) addressed Canadian Charter argument. La Forest held that municipalities are
subject to Charter regulation, specifically s.7.
Ratio: Even in the absence of significant government control over a body, that body
may still be bound by the Charter if it functions in a manner similar to that of
government. Key factors in this assessment: whether body’s powers are derived from
government and if they have law making power similar to that of a government. (i.e.
general taxing powers, elected by public etc).
This decision is pragmatically important because Federal and provincial governments

could easily avoid Charter obligations by conferring their powers to other entities and
having those entities carry out government activities or policies in order to evade Charter
scrutiny.
Class Comments: What about courts? Following the reason of the court in Godbout,
shouldn’t courts (common law) be subject to the Charter? Tenuous distinction between
governmental functions bestowed on municipalities by provinces, and those ascribed to
courts by Parliament.
An actor is governmental, and therefore subject to the Charter in all of its activities, if:
1) It is controlled by government: McKinney 1990 SCC (787)

Control test
-“ultimate or extraordinary control” of an entity by government does not qualify
-even though government appointed 14 of 16 members of hospital board, it was held not
to be controlled by government in Stoffman 1990 SCC (792)
must be “routine or regular” control
-board of community college was found to be government in Douglas College 1990 SCC
(792) because “the government may at all times by law direct its operation”
-Douglas College had no internal autonomy, unlike the universities in McKinney and the
B.C. hospital boards in Stoffman
2) It exercises governmental functions: Godbout 1997 SCC (795)
B. Governmental Acts
1. Entities Implementing Government Programs
Eldridge v. British Columbia (AG) [1997] SCC – page 799
Decision: The court ruled that hospitals have to deliver medical services in a way that
conforms to the Charter. The failure to provide sign language interpreters constitutes a
violation of s. 15 of the Charter.
Ratio: Entities will be subject to the Charter not only if they are characterized as
‘government’, but ALSO if they perform an act properly characterized as a
government activity. This analysis involves looking not at the organization itself, but
at the specific act which the organization performs. If the act is found to be an act
of government, the organization is subject to the Charter with regards to that act
2. Entities Exercising Statutory Powers of Compulsion
 In addition to government actors and non-governmental actors implementing specific

government programs, the Charter also applies to non-governmental actors exercising
coercive statutory powers.
 For example, in Slaight Communications Inc. v. Davidson the Charter was held to
apply to the order of an adjudicator acting pursuant to the Canada Labour Code
because the adjudicator was exercising powers conferred by the legislation.
III. Government Inaction
 S32 provides that the Charter applies to all matters within the authority of the federal
and provincial governments. If a Charter right or freedom requires the fulfillment of a
positive obligation, the Charter will apply to inaction on the part of the government
with jurisdiction to meet that obligation
 Vriend - contains discussion of the inaction issue in the context of equality rights
Vriend v. Alberta [1998] SCC – page 805

(Government Inaction)
Facts: omission of sexual orientation from Alberta’s Individual’s Rights Protection Act
(IRPA); not included as prohibited ground. Vriend attempted to file complaint under act
when dismissed from job due to sexual orientation. He brought a declaration for
infringing a Charter right.
Issue: Does the government have an affirmative duty under the Charter to take steps to
combat inequalities? In the alternative, does the government have a duty under the
Charter to ensure that the laws they enact are not under-inclusive?
Decision: The SCC found that the omission violated Vriend’s equality rights and held
that the words “sexual orientation” should be read into the relevant provisions of the Act.
Analysis: The Alberta Human Rights Legislation is unconstitutional because it does not
include sexual orientation as a ground for protection. Under-inclusive legislation may be
found to violate the Charter. However, the court did not discuss whether government
could be subject to Charter challenge for failing to act at all with regards to section 15.
Ratio: If Legislation violates the Charter because it is under-inclusive, it is subject

to review. However, there is no ruling on whether a charter challenge under s. 15
can be launched because government failed to act at all.
IV. Application of the Charter to Courts and the Common Law
A. Reliance by Government on Common Law
 Charter will apply to common law when relied upon in litigation involving a
government party, or in proceedings initiated for public purpose
 In BCGEU v. British Columbia the chief Justice issued an injunction against
government employees that were picketing outside a courthouse. Dickson concluded
that the Charter applied to the Chief Justice’s order, yet the injunction did not violate
the Charter.
 where common law rule relied upon by Crown in criminal proceedings, the Charter
applies as state prosecution provides requisite element of governmental action
 In both Swain and Dagenais the court did not hesitate to reformulate the common law
rules at issue in order to bring them into conformity with the Charter.
B. Reliance on Common Law in Private Litigation
 SCC’s most lengthy discussion on the relevance of Charter values to the development
of the common law in private litigation is found in the Hill case.
Hill v. Church of Scientology [1995] SCC – page 811
Facts: Hill is a prosecutor in Toronto suing the Church of Scientology as a private

individual. Hill brought a common law libel action based on allegedly false statements
the church made about him.
Issue: Is the Charter applicable to a private action based on a common law tort? Is the
common law tort of defamation inconsistent with the Charter (s. 2b)?
Decision: Even though private parties owe each other no constitutional duties and cannot
found a cause of action upon a Charter right, the Court concluded that the common law
tort of defamation reflected an appropriate balance between freedom of expression values
and the legislative objectives underlying the law. As such, there was no need to amend or
alter the legislation.
Analysis: Private parties owe each other no constitutional duties and cannot found their
cause of action upon a Charter right. The party challenging the common law cannot
allege that the common law violates a Charter right because, quite simply, Charter rights
do not extend in the absence of state action. The most that the litigant can do is argue that
the common law is inconsistent with Charter values.
“The party who is alleging that the common law is inconsistent with the Charter should
bear the onus of proving both that the common law fails to comply with Charter values
and that, when these values are balanced, the common law should be modified.”
It is up to the party challenging the common law to bear the burden of proving not only
that the common law is inconsistent with the Charter values but also that its provisions
cannot be justified.
Ratio: Even though the Charter doesn’t apply directly to this action, Common law
should be interpreted with reference to Charter values (as per obiter in Dolphin). If
common law is inconsistent with Charter values, and not justifiable, the common
law should be modified.
Remedies
Charter remedies are granted via s.24 of the Charter and s.52 of the Constitution Act
S.52  Declarations of legislative invalidity; s.52 remedies are only available where
laws (including delegated legislation) are being challenged
S.24  individualized remedies including exclusion of evidence, declarations that the

rights of an individual or group have been infringed, damages, and injunctions (both
prohibitory and mandatory), and any other remedy as the court considers just and
appropriate in the circumstances; s.24 remedies are available in cases where the Charter
infringement is the result of the actions of public officials, including the police, who are
operating outside the constitutional scope of their authority.
Remedies under Section 52(1) of the Charter
- a law may be declared invalid in its entirety

- partial invalidity via severance, reading down and constitutional exception
o severance - reading down bad provisions and keeping the good ones only
if the court believes the legislature would have passed the good provisions
without the bad
- reading in (for under-inclusive legislation)
- a temporary suspension of a declaration of invalidity – allows Parliament or
provincial legislature to “fill the void” (problematic since it allows
unconstitutional legislation to temporarily persist)
Schachter v. Canada [1992] SCC – page 1267

(Important for the discussion of the s. 52 remedies of reading in, severing and temporary
suspension of a declaration of invalidity in the case of under-inclusive legislation)
In choosing a remedy a court must define the extent of the inconsistency which must be
struck down. Courts determine this by looking at the manner in which the law violates the
Charter and the manner in which it fails an s.1 analysis: if the law fails the pressing and
substantial objective or the rational connection branches, then the inconsistent portion
must be struck very broadly/the whole portion that fails the rational connection test. If the
law fails the minimal impairment and/or risk/benefit branches, then there is more
flexibility: pick striking down, severing or reading in. How do we know which to pick?
Read in if there is sufficient certainty on the basis of constitutional analysis what should
be read in. Otherwise (in case of any uncertainty), it is the function of the legislature to
fill the gaps and not of the courts. (Hunter is an example where there was insufficient
certainty as to how to fill the gap and so the court did not read in).
Read in if the remedy does not have such a substantial impact on budgetary policy as to
change the nature of the legislative scheme: is the group added much larger than the
group originally benefited? In Knodel, the group added was much smaller, so reading in
was found to be appropriate.
Also, if the benefit which is being conferred is itself constitutionally guaranteed (i.e. the
right to vote), reading in may be mandatory: for a court to deprive persons of a
constitutionally guaranteed right by striking down under-inclusive legislation would be
absurd.
Sever if the remaining portion is very significant, or of a long standing nature: would it
have been enacted without the bad portion? If the Constitution specifically encourages
that sort of provision, the significance of the remaining portion is higher, strengthening
the assumption that the legislature would have enacted it on its own. (Re Blainey and
Ontario Hockey Association is an example where severing was appropriate since it had
the effect of extending sex discrimination protection.)
Should a declaration of invalidity be temporarily suspended? Yes if there would be

negative effects on the public (Reference re Manitoba Language Rights). A temporary
suspension of the declaration of invalidity is not an appropriate way for the court to avoid
“intruding” on the role of the legislature since the suspension has the effect of allowing
unconstitutional legislation to stand: if reading in is appropriate, then read in, don’t just
suspend the declaration of invalidity to avoid friction.
Vriend v. Alberta [1998] SCC – page 1277
-An application of the method/factors in Schachter which resulted in the court reading
in “sexual orientation” as a prohibited ground of discrimination in the work place via
“Individual’s Rights Protection Act” IRPA. The factors are remedial precision;
budgetary implications; interference with legislative objective; degree of change in the
legislative scheme; importance of the legislative scheme.
M. v. H. [1999] SCC – page 1284
Facts: exclusion of same-sex couples from the definition of “spouse” under Ontario’s
Family Law Act (FLA) for spousal support was found to be an unjustifiable infringement
of s.15 of the Charter
Issue: What is the appropriate remedy?
Decision: The court struck down the offending provision (s.29) subject to a six-month
delayed declaration of invalidity.
Analysis:
- Instead of reading in same-sex couples, the court distinguished Vriend. Here,

reading in in s.29 would have had significant repercussions for a separate and
distinct scheme under the FLA. Therefore, it is not safe for the court to assume
that this is the path that the legislation would have taken.
- Striking down the entire FLA would be excessive: since the offending provisions
are not so inextricably bound up with the non-offending that they cannot
independently survive, it is safe to assume that the legislature would have passed
the sound parts without the unsound parts.
- Therefore, severing s.29 of the FLA (declared of no force and effect) temporarily
suspended for six months: the suspension is necessary to give the legislature time
to devise its own approach to solve the unconstitutionality of the FLA and of
other Acts which use similar offending definitions of “spouse”. The legislature is
better suited to address these issues form both a financial and a democratic point
of view.
Note on Constitutional Exemptions
When a constitutional exemption is granted, the law remains in force, but it is declared
inapplicable to individuals or groups whose Charter rights are infringed by its effects.
Remedies under Section 24(1) of the Charter
Note on Structural Injunctions
Structural Injunctions (aka civil rights injunctions) are complex supervisory orders.
Mostly a US structural remedy which is controversial in Canada and which has been
requested mainly in the context of minority language rights (s.23 of Charter). This is a
problematic remedy since it gives courts legislative and administrative powers (in the US
such functions included redrawing electoral boundaries, desegregating school systems by

redrawing school boundaries and ordering the bussing of children etc).
Note on Damages
Damages are a possible remedy for Charter violations, but such claims are a rarity and
only very few have been successful. Generally, where a statutory provision has been
struck down pursuant to s.52, a claim for damages under s.24(1) is not ordinarily
available (Schachter).
Standing
- Who can claim remedies for Charter violations? Anyone whose Charter rights
have been directly violated has standing to raise the Charter issue and seek a
remedy under either s.24 or s.52(1).
- Also, a corporation can also challenge the constitutionality of a law under which it
was charged even if it is incapable of enjoying the particular right or freedom (Big
M Drug Mart). In such cases, a declaration of invalidity sought under s.52 has
more generous standing requirements than relief under s.24(1).
- However, a corporation which cannot claim an infringement of its own Charter
right is not allowed to bring independent civil actions seeking declarations of a
law’s invalidity, despite the fact that they are subject to regulation under the law
in issue and to possible criminal or penal sanctions should they violate it.
- Public standing may be granted according to the factors in Canadian Council of
Churches: the action must raise a serious legal issue, the Plaintiff must have a
genuine interest in the issue (not just a busy body) and there must be no other
reasonable and effective manner in which the question may be brought to court.
Freedom of Expression s.2(b) – p. 893
- protects freedom of thought, belief, opinion and expression, and freedom of the
press
- protection afforded by s.2(b) is content-neutral; all communicative activity is
protected provided it is not violent
- the “real debate” in most s.2(b) challenges to laws takes place in the s.1
proportionality analysis (see cb898-9)
- in Dolphin Delivery said violent threats are not protected but since then have
reversed that to say that it is protected under s.2(b)
Purposes of s.2(b)
- democracy (political expression) – political debate needed
- truth (expression about ideas) – pursuit of truth an knowledge as much as
possible
- self-realization (artistic expression)
- Ryder says they don’t get far b/c so broad, but the purpose affects the s.1 analysis
Means of Restricting Expression

- criminal offences (e.g. libel, sedition, treason, hate propaganda, obscenity, child
pornography)
- prior restraint or administrative censorship (e.g. Ontario film review board,
Customs’ prohibitions of imported publications)
- regulatory offences (e.g., re professional advertising, election advertising,
bilingual labelling etc.)
- court and tribunal rulings in civil actions (e.g., damages for defamation,
injunctions against picketing)
- policies or rules restricting expression on public property or in public media (e.g.,
restrictions on access to government property)
- licensing of broadcasters
- time, place and manner laws (e.g. noise by-laws; licensing of or other restrictions
on parades, demonstrations or pickets)
- compelled expression (e.g. consumer labelling requirements)
Establishing a Violation of s.2(b)
S. 2(b) Analysis – breakdown from Irwin Toy 1989 SCC at 908

1. does the activity at issue convey a meaning in a non-violent form? if so,
2. is the purpose or effect of the impugned government action to control expression by
reference to its content? if so, violation established;
S. 1 Analysis
1. pressing and substantial
2. proportionality
a. rational connection
b. minimal impairment
c. proportionality
the Oakes test is applied “flexibly” (unpredictably?) in s.2(b) cases

s.2(b) provides content-neutral protection to all non-violent expression
s.1 “contextual analysis” is content-specific, meaning that not all expression is equally
worthy of constitutional protection
some restrictions on expression require finding evidence of harm, others restrictions on
the basis of common sense, reason or logic
section 1: contextual analysis

Oakes test that accounts for contextual factors, it considers:
1. whether the expression at issue is closely related to the purposes of s.2(b) (“core” or
“peripheral” expression?);
- 3 purposes (truth, democracy or self realization) – if it can fit under these
types of expression then there is much more consideration for its protection
- if not in these 3 then peripheral therefore should require less of the gov’t in
defending restrictions – such as with pornography, defamation and commercial
advertising
2. the socioeconomic position of those negatively and positively affected by the law;
whether the group “protected” by a law is truly “vulnerable” to manipulation,
discrimination or violence ex children in Irwin Toy
3. if the group is vulnerable then there is a much more deference to the gov’t protecting
the group
ex. Thompson Newspapers– the restriction of polling data a few days before an election
cannot be restricted, will not have such a negative affect on cdn voters – the law is overly
paternalistic
ex. Pepsi-cola – restriction on leafleting is allowable
4. whether the restricted form or content of expression is particularly important to a

vulnerable or disadvantaged group (e.g. postering: Ramsden; consumer leafleting:
KMart; sexual expression: Little Sisters; but see Banks Ont CA 2007)
Dolphin Delivery SCC 1986 – page 901
Issue: does picketing convey a meaning?

Decision: found that picketing was a form of expression, this is clear, but argument was
that it is not a real conversation between the picketers and others - saying that it is not
expression but signaling, as soon as people see the picket they won’t go to the biz – but
this argument was dismissed by the courts
Ratio: with Dolphin Delivery did not see connection between co’s therefore 3rd party
picketing not allowed, therefore not saved under s. 1
Notes p. 903
Kmart – distinguished between leafleting and picketing and a communication in labour
disputes, SCC found that a ban on secondary leafleting was not saved under s. 1
Pepsi-Cola – reinterpreted common law values regarding picketing in light of Charter
values, found that secondary picketing was allowed if it was not tortious
Commercial Expression
- protected by s.2(b) because it conveys a meaning, and on the theory that it contributes to
consumer autonomy and to the self-realization of buyers and sellers: Ford SCC 1988
(906-7); Irwin Toy SCC 1989 (907)
- consumer autonomy requires extensive regulation of, for example, misleading or
manipulative advertising practices (these must be upheld under s.1)
- early on it was a question if it would be protected – now not a problem to included b/c
of broad definition
Ford SCC 1998 - page 906
Facts: challenging law banning French from signs arguing that the use of English on a
sign was part of freedom of expression, and commercial expression is also guaranteed
- the court agreed that both should be protected
Decision: it is the right of the consumer that is protected when protecting commercial
expression, as well as the right to businesses
- powerful actors can abuse freedom of expression, that it is not devoted to truth,
knowledge and realization therefore commercial expression is not a core value,
it is further to the margins, therefore it can be more easily restricted
Irwin Toy 1989 SCC – page 907
Facts: challenge to provisions of Quebec’s Consumer Protection Act prohibiting

advertising “directed at persons under 13 years of age”
Decision: statute violates s. 2(b) but is saved under s. 1
Majority: conveyed a meaning under s. 2(b), s. 1 analysis considered the complete

prohibition of advertising to children under 13
s. 2(b) – met purpose and effect test

upheld restriction b/c of the sociological evidence that children cannot discern what is
real, trying to prevent harm through manipulative advertising – did not matter that the
info was for younger children then the ban was for
-was enough to rely on common sense for the ban
s. 1 Analysis
1. pressing and substantial – found on a balance of probabilities that children up to 13 are

manipulated by commercial advertising
2. proportional - analyzed rational connection, minimal impairment and proportionality
together and found that all requirements were met because of evidence of effects
therefore complete ban not out of proportion
Minority: felt parliament should have conclusive evidence for the age group that the ban
is operating for
RJR-MacDonald SCC 1995 (920)
Facts: challenge to provisions of the federal Tobacco Products Control Act restricting
marketing of tobacco products
Decision: 5-4 majority strikes down most of the offences in the Act, including complete
ban on tobacco advertising, and requirement of including health warnings on packages
Majority:
S. 2(b): government concede a violation
S. 1 Analysis
1. pressing and substantial – yes, because criminal matter, related to social evil
2. proportionality
- problem for maj was that gov’t had research that they used in making the decision
but did not disclose the studies to the court, the suspicion is that the evidence they
had did not support the leg
- need to have some evidence of link between health and advertising
- SCC said complete prohibition could not be sustained, need to considered why
there is a complete prohibition (if there is evidence then may allow) otherwise
need to be more specific
- majority found complete ban on advertising failed the least restrictive means test
- government had presented no evidence to demonstrate need for a complete ban, as
opposed to a partial ban that permitted information and brand preference
advertising
- unattributed mandatory health warnings also failed the minimum impairment test:
they would be clearly justifiable reasonable limits on freedom of expression so
long as they could be attributed to government (934-5)
c. proportionality
- found complete ban on advertising failed the proportionality test
- government had presented no evidence to demonstrate need for a complete ban, as
opposed to a partial ban that permitted information and brand preference
advertising (per McLachlin 933; Iacobucci 935-6)
- unattributed mandatory health warnings also failed the minimum impairment test:
they would be clearly justifiable reasonable limits on freedom of expression so
long as they could be attributed to government (934-5)
Minority: found that the s. 1 test was met in all areas

- money spent on advertising is enough to indicate a link between advertising and
smoking
- found that complete ban and unattributed warnings were proportional
Note: new Tobacco Act responds to these concerns of the majority; will likely be upheld
under s.1
R. v. Banks Ont CA 2007

validity of provisions of Safe Streets Act and Highway Traffic Act that prohibit
soliciting on roads
s. 2 (b) Analysis: targets non-violent activity that conveys a meaning by reference to its
content, therefore violates s.2(b)
s. 1 Analysis:
- issues of morality and order on roads, prevents aggressive panhandling and
squeegee kids
- have to make sure that there is a link between the ban and the concern for safety
- look at exception of Morgentaler where the health rationale was minimal
- Westendorph was not for safety from prostitute on the streets but is singling out
prostitution with a heavy penalty – clear that they are punishing on moral
grounds
- argument in Banks says that it is for safe streets but singles out squeegee kids for
moral sanctions and not about safe streets
- the leg debate at the time made it clear that they were cracking down on squeegee
kids
- Ont. Court of Appeal said that weight must be given to leg weight but the pith and
substance is safety
- Bruce Ryder – if this went to SCC it may reverse based on the moral grounding
of the leg, that the pith and substance is not based on safety
- is soliciting political or commercial expression, or does it fall in some other
category? is a searching or deferential standard of review appropriate?
- problems with leg – a complete ban on roadway
HATE SPEECH
-A lot of goals for protecting people who may be the subject of hate propaganda
-Used to be a false news provision of the crim code in Zundel, but that section was struck
down as unconstitutional
-There are also some provisions for hate propaganda in human rights legislation, like
Canadian Human Rights Act – a federal statute so, can only deal with media that falls
within federal jurisdiction – like broadcasting, telecommunications, internet, etc….
-When it comes to hate speech, analysis should NOT be limited to the Criminal Code,
human rights legislation also applies
-When speech, in its effects, interferes with equality rights, equality rights prevail
R. v. Keegstra 1990 SCC – page 941
Dickson CJC:
Facts:
-Convicted for hate speech for spreading Jew hate at his high school
-Argued that s. 319(2) of Crim Code violated his right to free expression under s. 2(b) of
Charter
-Won appeal at CA and Crown appealed to SCC
Issue:
-Can s. 319(2) be upheld as a reasonable limit on freedom of expression?
-The issue divided the SCC 4-3 in this case – the majority voted to uphold the provision
-There was no real debate as to whether it violate s. 2(b), the real debate was whether is
violated s. 1
Analysis:
-Have to first ask whether the provision is valid in pith and substance – in this case its
obvious that it’s valid under fed. gov’s criminal law power
-This provision makes it an offence to communicate statements that willfully promote
hatred against an identifiable group
-As opposed to a human rights legislation, this provision of the Crim Code does not just
apply to federal statements made through broadcasting and such, this provision applies to
all communication, except for private conversation
-It has to be willful – intentionally promoting hatred – but HATRED was not defined, so
a question was whether that word was too broad to constitute a violation of freedom of
expression – like color, race, religion, origin or sexual orientation (gender is not included)
-Debated as to whether Parliament intended to pass the law to restrict expression in

respect to its content or whether it was aimed at restricting freedom of expression for
truth, democracy, and self-realization
-Claimant only had to show that the expression promoted truth, democracy, and self-
realization – Parliament does not have to show that the purpose was to restrict freedom of
expression, but rather it’s just an effect of passing the law – this establishes that it’s a
violation of s. 2(b) (very easy to establish this)
s. 1 Analysis
Proportionality Test
(i) Pressing and Substantial
-Held that s. 319(2) does provide a intelligible basis for valid legal debate – this is a
requirement that was met
-Next has to ask what was the objective of the statute and whether it is pressing and
substantial and not too vague
-The objective was to prevent the harms caused by the expressive activity at issue, so
have to determine the harms of the hate propaganda first
Dickson J – MAJORITY
Saw 2 types of harm:

1. The harm to the group that is targeted – psychological consequences
2. Influence on society at large – this is a pressing and substantial concern

-Chief justice said BOTH these reasons were pressing and substantial
-It is clear that the expression prohibited by s. 319(2) is not closely linked to the rationale
underlying s. 2(b) – promotion of free ideas in a free and democratic society
-We can reject hate propaganda and show dislike for hate-mongers while still protecting
the values central to freedom of expression
(ii) Rational Connection
-This is the first branch of the proportionality test and it has been met
-Hate propaganda laws are part of a democratic society’s efforts to prevent the spread of
racism – there is a rational connection in this context
(iii) Minimal Impairment of The s. 2(b) Freedom
-s. 319(2) minimally impairs freedoms because only the most extreme forms of hateful
expression fall under it
-It doesn’t prohibit people from speaking hate in private conversation – it just prohibits
them from speaking them publicly
c. Alternative modes of furthering Parliament’s objective
-Even though presumption of innocence is infringed, it cannot be saved by s. 1
(iv) Cost-Benefit Analysis
-But the big question was whether a criminal sanction was the best and least intrusive
means of dealing with this issue, and do the positive effects of the prohibition outweigh
the negative effects on the infringement of free speech
-Dickson said yes
-There are many defences to the provision – thus it does not restrict freedom of
expression to an unreasonable degree
McLachlin J Dissent:
Rational Connection
-No evidence of a rational connection between s. 319(2) and the goals it promotes
-History has shown (e.g. Nazi Germany had anti-hate laws) that there is little reason to
believe that hate propaganda laws contribute to the cause of multiculturalism and equality
Minimum Impairment
-s. 319(2) is a broad prohibition that is a big threat to freedom of expression that cannot
be saved by s. 1
the offence can be counter-productive – gives a platform to racists to propound their
views – gives people like Keegstra a martyr-like status and media attention that they
would not otherwise get – so it would be better to ignore them from a criminal law point
of view and combat their ideas through things like education
-Thus it will not work to control hate propaganda and curb the effects of it
-Her main concern was that the legislation will have a “chilling effect” on political speech
– people will be too afraid to speak their minds without being charged criminally
REGULATION OF SEXUALLY EXPLICIT EXPRESSION
-These things have usually been regulated on the grounds that they are offensive and
immoral
R. v. Butler [1992] SCC – page 968
Facts:
-Accused charged under s. 163 of the Criminal Code for selling hardcore porn in his shop
-Brought up another freedom of expression argument under s. 2(b)
Issue and Decision:

-Can gov. uphold this provision under s. 1 – SCC said a unanimous yes to this question
Analysis:
MAJORITY – Sopkinka:
-For the material to be “obscene” is has to depict an “undue” exploitation of sex, this is
determined through the “community standard of tolerance test” – measure the obscenity
against “community standards”
-Obscentiy labeled as the undue exploitation of sex – depends on what the community
would tolerate – court said this approach is too subjective, have to shift to a harm-based
approach -- a high degree of harm, cannot be trivial or speculative, has to do with the
degree of evidence, can use reason, logic and common sense – this gives the wrongful
conception that the obscenity provision is very broad and easy to enforce – this is not
true, the burden on the crown is VERY high
-What plays a bigger role in determining obscenity is bodies like the CRTC and the
Ontario Film Review Board to determine whether material is obscene pursuant to s. 163
of Criminal Code
-The Charter challenge in this case did not succeed in getting the provision shut down,
but it did get it re-conceptualized
-The Charter challenge in this case did not succeed in getting the provision shut down,
but it did get it reconceptualized
-Sopinka stated categories of obscenity:
1. Material that uses children in its production

2. Depictions of sexual violence
3. Material that is degrading and dehumanizing and poses a substantial risk of
harm to society – this is the most difficult category
-Sopinka thus redefined obscenity
Does s. 163 violate s. 2(b) of the Charter
-It does violate freedom of expression under s. 2(b)

-There was nothing physical in the materials, and under s. 2(b), thoughts and feelings
should be able to be conveyed freely in non-violent ways
-Thus there was a s. 2(b) violation
-Held that this does provide a sufficiently intelligible basis for legal debate
-Then asked whether it is pressing and substantial
Is s. 163 Justified Under s. 1 of the Charter?
-s. 163 is not overly-vague, it provides an intelligible standard as a limit prescribed by

law
-The pornography industry’s growth makes the concern more pressing and substantial
-The objective of avoiding the harm associated with the dissemination of pornography in
this case is sufficiently pressing and substantial to warrant some restriction on full
exercise of the right to freedom of expression
-Pressing concern is to protect women and children in society – the rationale is that men
who are routinely exposed to these images will be prone to treat women the wrong way –
this is the objective that the court is aimed at preventing
-Problem is the objective has to be the objective at the time the statute was enacted, NOT
about the effects that it could have
-Either way, the harm prevented by curbing obscenity meet the pressing and substantial
connection test
Proportionality
-The Rational Connection exists – show community’s disapproval of obscenity and the
sexually explicit materials
-Prescribing violent material that poses a risk to society is rationally connected to the
goal of preventing harm
-There is also minimal impairment to rights because s. 163 is very specific
-There is also a defence for artistic expression, but it’s not written into the Criminal
Code
-Also, private expression of these things is not prohibited, only prohibited when it’s in a
more public nature and poses a threat to society
Little Sisters Book and Art Emporium v. Canada – page 981
Facts:
-Little Sisters – lesbian bookstore in Vancouver has had a war with Canada customs for
over two decades now
-Challenged s. 14 of Customs Tariff, which forbids bringing obscene material into
Canada
Decision:
-SCC held that it restricted freedom of expression, but could be justified by s. 1

-But also held that the manner in which the legislation had been implemented by Customs
officials violated the bookstore’s rights and could not be justified under s. 1
-It was up to the customs officials to determine whether the materials were obscene or not
-This is a form of prior restraint censorship – the way that the standard is enforced is so
different from something like a criminal trial, where evidence is presented and weighed
-Held that customs officials exercised their authority in a way that violated bookstore’s s.
2(b) rights because it suffered unnecessary prejudice because of delays, costs, etc….
-The violation was not in the legislation, but in its effects
-Also argued that it singled out lesbians and discriminated against them and the
Vancouver “queer community” as a whole
-The bookstore went further and tried to get the legislation struck entirely
-Binnie J held that the legislation itself did not sufficiently violate the Charter to the
point where it should be struck down – the problem was how it was enforced -- – customs
officers were improperly trained in carrying out obscenity laws – argued that this can be
fixed without having to strike down the legislation and leave it to customs administration
to clean up its act
-The majority’s ruling was a declaration – not a hard ruling, depends on the goodwill of
the other branches of government complying with it
-In DISSENT, Iacabouchi said this is not enough – it should go back to Parliament to
explain the meaning of censorship and impose clear guidelines
-It’s not acceptable to treat a constitutional right the exact same way as you treat other
prohibited material – safeguards have to be put in place to ensure that constitutional
freedoms are protected
-Bruce Ryder thinks the majority decision was a fatal mistake

-He does not think that a declaration is sufficient, what is needed is rather systemic
change – “appalling approach to censorship”
-The system is not built in with enough safeguards, if we value freedom of expression as
much as we claim to
-Little Sisters has been arguing for the past few years that the changes imposed are not
enough
-Later, the SCC agreed with BC CA and held that the case was not important enough for
a remedy of advanced costs
-So not a very happy ending
Child Pornography
-This is an offence under s. 163.1 of the criminal code

-Child pornography – crim. prohibition on expression to stop people from suffering harm
-Stronger than prohibition in the obscenity provision – already made it a crime to
purchase, sell, distribute child porn in this country
-In 1993, fed. gov. expanded the Criminal Code to make possession of child porn a crime
(before, it was just illegal to produce, sell and distribute it)
-Argued that if we want to shut down child pornography, we have to shut down the
supply and demand of the industry and this means including a simple possession offence
-Parliament was persuaded by this argument
-Another rationale to restrict written material too – all imaginary representations, because
people who viewed them were argued to be predisposed to commit violent acts against
children
-An argument that all this criminalization was over-reaching

-The issue was what the imaginary depictions actually raised – civil liberties issues for
protecting stories that someone wrote themselves
-Sharpe case was the most extensive application of the reading-in provision
R. v. Sharpe – page 986
-The law was challenged and McLachlin J held that it violated s. 2(b), but it was saved by
s. 1 because the purpose of protecting children was pressing and substantial and there
was a rational connection to this
-So 163.1 was upheld as a reasonable limit on free speech
-But the chief justice decided to “read in” a few exceptions to the law – such as a single
item for someone’s own personal use and audio recordings, as long as they are not too
sexually explicit
-Sharpe was acquitted with respect to his stories – held that they did not counsel or
advocate violence against children
-Now things have changed, advocating is not necessary, it’s a crime if the material
describes explicit acts against children
-The issues of constitutional validity for s. 163.1 are not over, Parliament has amended it
many times and continues to do so, in order to show Canada’s extreme condemnation of
child pornography
NOTE: Bruce Ryder thinks 163.1 is not constitutionally valid and there is no good legal
rationale for it at presentment – the imaginary representations are not a big social issue
-This prohibition is vulnerable to being struck down, because there is no artistic merit
defense available – artists cannot depict any child sexuality and defend it as art
Controls on Election Spending
Libman 1997 SCC – page 990
Facts: struck down provisions of the Quebec Referendum Act that banned third party
spending during a referendum campaign
s. 1 Analysis:
1. pressing and substantial: found that promoting fairness in access for elections met this
requirement
2. proportional
- 1991 Election Royal Commission found the need to limit spending of both direct
and third party spending, therefore rational connection – “highly laudable”
objective
- but for 3rd parties, there was a complete prohibition for the Referendum – found
this to be overly restrictive
- said that a complete ban was not a reasonable limit, suggested a $1,000 limit
c. proportionality
- not considered b/c failed at minimal impairment
Harper 2004 SCC

- validity of third party campaign spending limits in s.350 of the Canada Elections
Act (note 2, 1000): upheld 6-3
- Harper 2004 SCC Harper challenged before he was a public official, said that
regulation should be struck down b/c it was too low
- was a violation of s. 2(b), but under s. 1 it can be upheld – the objective is highly
laudable (like Libman), and was a minimal impairment (in Libman the
prohibition was too great of an impairment)
- dissent – essentially agreed with the majority, but said that the limits in spending
were to low when looking at the cost of advertising with major broadcasters and
newspapers
Note on Publication Bans
Thomson Newspapers 1998 SCC (note 4, page 1001)

- s.322.1 of the Canada Elections Act prohibited the publication of election
campaign polls during the final 3 days of a campaign; declared invalid in 5-3
ruling
- idea of prohibition was it wouldn’t give people enough time to analyze the
validity of data, and polling can have a significant impact on a persons vote
- failed at rational connection: people are capable of making an informed decision

therefore ban not required
Bryan 2007 SCC - decision came March 2007

- s.329 of Canada Elections Act prohibits the publication of voting results before
polls close in other ridings; upheld 5-4
- interesting with respect to how much and what kind of evidence the gov’t needs
for a limit on freedom of expression
- the goal is to ensure informational balance across the country
- don’t want voting results in the east to affect the voting or decision to vote in the
west
- what makes more difficult is that Lortie Commission on elections in 1991 that
said that the ban on publishing election results was outdated
Majority – upheld the ban
Dissent – (Abella) said that the gov’t claims were speculation, needs to be something
more than that for a prohibition
- also have staggered voting hours now (recommended by Lortie) so that before the
polls close in the west only the Atlantic Prov results will be known (and Atlantic
only has 38 ridings of 308) – there is not real affect b/c of this, don’t have the
Ont/Que results does not matter
S. 7 -- LIFE, LIBERTY and SECURITY of the PERSON
section 7 analysis
1) Is there an infringement of life, liberty or security to the person?-yes then step 2;
2) Is the infringement based on a principle of fundamental justice?-yes then step 3;
3) Can the infringement be upheld by a s.1 analysis?-no then remedy;
4) Remedy….
I. Introduction
Section 7
“Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.”
• Although “everyone” could include natural and legal persons, Courts have held
does not apply to corporations.
-When there’s a violation, the onus is on the claimant to prove that his life, liberty and
SOTP have been violated AND that the violation was not in accordance with the POFJ
1. Procedural Right—individual has the right to a fair trial in Canada etc.;

2. Substantive Right—individual has the right not to be executed Drafters thought

they were importing natural justice doctrine only, but the testimony of Streyer was given
‘minimal weight’ in Motor Vehicle Reference (1985). Court said that if they had only
wanted to protect procedure, they could have used a phrase like “due process.”
1. Establishing a Violation of a Life, Liberty or Security of the Person
two-step process:
1) claimant must demonstrate an interference, in purpose or effect, with one of the
three interests protected in s.7; and
2) the claimant must demonstrate that the interference is not in accordance with the
principles of fundamental justice
-If the claimant gets past step 2, then the burden shifts to the government and
the Oakes test is applied
• Life, liberty, and security of the person are 3 distinct interests; violation of any
one can give rise to a s.7 claim.
• LaForest (p. 661): s.7 contemplates internal balancing process, a balancing of
individual and community/public interest rights. If deprivation is in accordance with
principles of fundamental justice, s.7 right not been violated.
To qualify as a principle of fundamental justice, a principle must:

1) Be a legal principle;
2) Must be a significant social consensus that it is vital to our notion of justice; and
3) Must be capable of being stated with precision and yielding predictable results
All of these components must be met
This places on claimants of s.7 an onerous burden of proving that it is a principle of
fundamental justice—its going to be harder
This is the test that a claimant must meet
So far recognized principles of fundamental justice:

-in addition to the specific rights listed in sections 8 through 14, the pofj include:
substantive and procedural rights—s. 7 should not be restricted to procedural rights.
-procedural fairness
-no punishment of innocent (mens rea requirement)
-intelligible standards (no vagueness)
-lack of arbitrariness (a rational connection must exist)
-least restrictive means (over breadth-has the government selected the least restrictive
means?)
-proportionality(between the negative and positive effects of the government action)
-protection from extreme violations of human dignity (deportation to torture)
-protection from self-incrimination
-right to a fair trial, including right to make full answer and defence
principles of fundamental justice
-s.1 requirements is reproduced in s.7

There is a great deal of overlap in the questions to be answered in s.7 and s.1 Oakes
analysis
What principles have been determined NOT to be principle of fundamental justice?
-harm principle (Malmo-Levine 2003 SCC)—bestiality, incest.

-best interests of the child (Canadian Foundation for Children, Youth and the Law
2004 SCC)—spanking case, removed criminal sanction of assaulting children for
behaviour modification
-SCC said “best interests of the child” is a legal principle, it doesn’t apply with
absolute precision in particular contexts
-These two cases illustrate the claimant’s burden of proving a pofj has been infringed.
Reference re Section 94(2) of the Motor Vehicle Act (BC), p.1073
Facts: absolute liability for a driving offence which doesn’t matter

First case the SCC dealt with s. 7
Issue: What is the nature and scope of s. 7 Life, Liberty or the SOTP
Rule: sections 8 to 14 address specific deprivations of the right to life, liberty and SOTP
in breach of the principles of fundamental justice, and as such, violations of s. 7.
NOTE:
The structure of s.7 authorizes the state to violate the right to life, liberty , or
SOTP if it does so in a manner that conforms with a principle of fundamental
justice, and that a law that does not comply with fundamental justice may amount
to a reasonable limit under s.1 of the Charter.
-It thus requires a court to determine, first, the nature and scope of the right to life,
liberty, or security of the person; second, the nature and scope of fundamental
justice; and third, the applicability of s.1 of the Charter.
II. Section 7 and Bodily Integrity
R. v. Morgentaler p.1077
Facts: Criminal Code makes it an offence to obtain an abortion, then creates limited
exceptions (a defence): accredited hospital, therapeutic abortion committee must
provide certificate stating pregnancy endangers life or health, abortion must be

performed by qualified doctor who is not on T.A.C.
Dr. Morgentaler opened free-standing clinic (not accredited, no TAC, no
investigation to determine if pregnancy endangers life or health).
Issue: does the criminal prohibition and procedural process for abortions violate s.7 of
the Charter
Decision: 5-2 decision in favor of Morgentaler; three decisions on majority side

(Dickson/Lamer, Beetz/Estey and Wilson; Dis-McIntyre/LaForest)
-Dickson C.J. (and Lamer): Considers whether there is deprivation of “security

of person.”
-Law interferes with bodily integrity of a woman; forcers her to carry fetus to
term unless she meets criteria “unrelated to her own priorities and aspirations”
-Violation of “purely physical aspect” of “security of the person.” Also imposes
severe psychological stress – law imposes delay and uncertainty, coupled with
criminal sanctions.
-Therefore, necessary to consider whether the law is consistent with “principles of
fundamental justice.”
-No need to consider fetal rights in this case, because Parliament itself has
determined that fetal rights must yield when life/health of mother in danger (i.e.
law itself admits balance tips in favour of mother).
-Question is whether procedure is fair. Notes many practical obstacles; many
hospitals not accredited, or no Therapeutic Abortion Clinics (TAC).
-Therefore, for many women the exception in s. 251 is ‘illusory’; women who
would prima facie qualify under section cannot take advantage of it. This
violates fundamental justice on procedural grounds.
-The POFJ that is violated in this case is PROCEDURAL FAIRNESS
-Thus s. 1 analysis comes into play -- Can't be justified under s. 1 b/c means
chosen are arbitrary and fail all three elements of Oakes proportionality test.
Beetz (and Estey)

-Finds breach of security of person in delay occasioned by law. Delay creates
additional danger to women’s health – and must be justified. Parliament could be
justified in requiring medical opinions as to danger posed by pregnancy but this
law goes beyond what is necessary.
-Requirement that abortions be performed in hospitals, that there be more then 3
members on TAC, and exclusion of doctors whom perform abortions from TAC
unnecessary.
-Therefore law violates s. 7 and cannot be justified under s. 1
Wilson
• Agrees on right to “security of the person” but goes beyond to rely on the right
to “liberty” (Monahan says that her reliance on liberty is a substantive rights
argument)
• Liberty includes right to make fundamental personal decisions w/o

interference from state.
• Underlying theory of Charter is that state will respect choices made by
individuals and to greatest extent possible, will avoid subordinating these
choices to any one conception of the good life. (p. 681)
• Right to terminate pregnancy falls within class of protected decisions. Therefore s.
251 necessarily limits liberty.
• That theory of liberty (p. 681) has been endorsed by the majority of SCC in
Blencoe (see below).
• Wilson J. also finds violation of fundamental justice in a substantive sense. Finds
that violations of s. 7 cannot be justified under s. 1 (p. 684).
Dissent—McIntyre (and LaForest)
• Relies on the fact that legislative debate suggests that right to abortion was not
included in s. 7.
Remedy: which part or parts of s.251 (now s.287 of the Criminal Code) were
declared invalid?
The remedy stage is probably the most important stage?

Severance wasn’t possible b/c it would make all abortion illegal
Here the court’s remedy was to strike down the entire legislation
Parliament hasn’t even bothered to amend the criminal code…
Ryder likes Wilson’s feistiness here—she had BALLS!
Chaoulli v. Quebec (AG)
Facts: prohibition of people buying private insurance

-The claimants say that the prohibition allows those who can afford treatment to
leave the country while those who cannot must be restricted to the government
health care system (RICH PEOPLE CAN GET BETTER TREATMENT)
Issue: does the public health care system’s failure to deliver timely access to medically
necessary services, coupled with legal prohibitions on purchasing private insurance,
violate section 7 of the Charter? <THE EFFECT OF THE LAW VIOLATES s. 7>
Rule: 4-3 ruling; Deschamps for majority finds violation of s.1 of the Quebec Charter—
equivalent to the Ontario Human Rights code (which only prohibits discrimination)
-The Quebec Charter goes further than just discrimination
-This decision is indeterminate as precedent
-The result was that the Quebec legislation is inconsistent with s.1 of the Quebec
Charter and therefore the Quebec Charter prevails b/c of a provision that says
when there is a conflict b/n a Quebec legislation conflicts with the Quebec
Charter, the Quebec Charter prevails
-This only sets precedent in Quebec…
no remedy under the Canadian Charter (since the majority did not find a violation of the
Canadian Charter)
violation of life and security of the person

• prohibition on purchase of private insurance, coupled with lengthy delays in
public system causing serious physical and psychological consequences, violates
life and security of the person: Deschamps (91); McLachlin and Major (96);
Binnie and LeBel (103)
**If the state is going to establish a monopoly on the services of health care, then it
must deliver.**
Flora v. Ontario 2007 Ont. SCJ

<THIS CASE DID NOT GET PAST STAGE 1 – S. 7 VIOLATION>
-claimant argues that failure of OHIP to fund life-saving liver transplant violates s.7
in Ontario, doctors said the procedure was not suitable for someone at his advanced stage
of liver cancer
-Flora spent $450K on the procedure in England was denied reimbursement by OHIP;
regulation provides right to funding only when treatment is considered appropriate and is
unavailable in Ontario
-in light of Chaoulli, violation of s.7?
-court: no violation of a s.7 interest because the regulation does not restrict patients’ right
to secure out-of-country treatment; s.7 creates no positive rights
-no active duty to ensure medical services.
-S.7 does not pose positive obligations on the state (also from Gosselin)
-no state interference with life, liberty or security of the person because the regulation
does not restrict patients’ right to purchase out-of-country treatment; s.7 creates no
positive rights
-in any case, the regulation is not vague, arbitrary or grossly disproportionate to its
objectives
Rodriquez v. British Columbia (AG), p.1091

<THIS CASE GETS TO STAGE 2>
Facts: -CC s. 241 prohibits assisted suicide

-Sue Rodriquez brings challenge on basis of s. 7, security of the person.
-Argues that it limits her right to deal w/ her body as she wishes
-She was not trying to get s. 241 struck down, she just wanted an exemption
Issue: Does the criminal prohibition preventing someone from assisting Rodriguez from
choosing when and how she dies infringe upon her s.7 Rights (life, liberty and security of
the person)?
-SCC unanimously agrees that s. 241 is an infringement of her right to “security of the
person.”
-Disagreement in case is whether s. 241 is consistent with principles of fundamental

justice.
Rule:
Sopinka (majority) thinks it is consistent with principles of fundamental justice.
-Relies on Morgentaler reasoning: security of person includes right to make choices
concerning one’s own body.
-Here the effect of s. 241 is to prevent Rodriguez from making choice about her own
bodily integrity
-Focuses on distinction btw passive and active forms of assisting/hastening death. Notes
that historically, law has distinguished between passive and active forms euthanasia.
-Frames issue as one of arbitrariness by asking the following
Q: Is the potential arbitrariness consistent with principles of fundamental justice?
-Does law further its objective, protection of rights of vulnerable in a non-arbitrary way?
Someone could take advantage of the disadvantaged, or act out an earlier made wish after
a person had changed their mind.
-Argues that there is no consensus that passive/active distinction is arbitrary. Physicians
have no choice but to accept a patient’s decision to withhold treatment. “Nothing
approaching unanimity with respect to issue before me.” (692-93). Founds his
judgment on lack of a societal consensus. [!!!!] <CANNOT ACCEPT THE
ARGUMENT THAT ASSISTED SUICIDE SHOULD BE ALLOWED>
McLachlin [dissent] (L’Heureux Dube concurring)

-Focuses on distinction between suicide and assisted suicide. She agrees that the
key question is whether this distinction is arbitrary. Again arbitrary is defined by
its Rational Connection to objective behind the legislation.
-Turns case into a s.15 case. Argues there is no justification other than floodgates
argument. Fear is that disabled persons will be murdered, or pressured to agree to
end their lives, and that really this is therefore a s. 1 argument.
-Sue Rodriguez is asked to bear the burden of the chance that other people may
act criminally in similar situations. She is asked to serve as a scapegoat. (695) It
is a utilitarian argument, where Rodriguez is a means to an end, and therefore this
should be a s. 1 consideration, NOT a s. 7 analysis.
-Also rejects the passive/active distinction—since the end result of death is the
same.
-Criticizes Sopinka’s consensus argument—Courts are not in position to
determine this; Parliament’s job. Courts are supposed to find decisions on
principle.
NOTE
-Case leaves us with an unclear sense of what is meant by principles of

fundamental justice, other than arbitrariness concept that requires
rationality/fit between purpose and means (s. 1 analysis).
-S. 7 protects you not only from actual pain/suffering, but also threat of having
actual/pain or suffering inflicted on you (especially if it is absolutely certain).
One should not have to wait until one actually experiences/suffers the
infringment. See Morgentaler, where Dickson said threat of complications w/
pregnancy was itself s. 7 violation.
Suresh v. Canada (Minister of Citizenship and Immigration), p.1103
Facts: Former Tamil Tiger claims for refugee status

Is denied and scheduled to be deported back to Sri Lanka
Files for a new hearing b/c worried about being tortured in Sri Lanka
s.53(1)(b) of the former Immigration Act permitted deportation of refugees, even if their
life or freedom would be in danger, if they were members of terrorist organizations and
the Minister decided they posed a security risk
government established that Suresh was a member of the Tamil Tigers; Minister moved
to deport him; Suresh sought judicial review, arguing that the Act violated s.7 and that
he would be tortured if returned to Sri Lanka
Issue: Would deporting him be contrary to the fundamental principles of justice?

Should he be able to stay?
Rule: -unanimous court holds that deportation to a substantial risk of torture, “barring
extraordinary circumstances”, violates the pofj (HUMAN DIGNITY)
<THE POFJ BEING VIOLATED WAS PROCEDURAL FAIRNESS>
-court says he should have another hearing because it is contrary to Canadian
principles of fundamental justice to send him home to torture.
-Court said the provision was ok but the implementation of it was a problem.
-The principles of fundamental justice include procedural process.
-Suresh was denied the opportunity to submit arguments
-Oakes line of reasoning that says the governments response is not proportional in
the given circumstances.
<HE WAS GRANTED ANOTHER HEARING>
Canadian Foundation for Children Youth and the Law, supp. 86

<SPANKING CASE>
<THIS CASE MAKES IT TO STAGE 2 – SHOT DOWN FOR NOT BEING A POFJ>
Facts: s.43 of the Criminal Code, which justifies the use of reasonable force by parents
and teachers for the correction of children
Child spanking case
Issue: Should child spanking be permitted?
Rule:
-6-3 ruling upholding the statute
-7-2 ruling finding no violation of s.7

-Crown conceded that s.43 violates security of the person
-McLachlin for majority finds no violation of the pofj; rejects arguments based on:
-procedural fairness <CHILDREN CAN CLAIM ASSAULT IF IT
HAPPENED>
-best interests of the child-not a POFJ
-vagueness-to prove this the threshold is so high, clarity is so low—must allow
for conclusive legal debate…
-overbreadth-no age limit, weapons?, notion of reasonable force…
-McLachlin read in a max of 12 years of age, no weapons
-There was no debate as to the result of the law, but there was a debate as to the chosen
remedy—read down or back to parliament?
-ONLY READ IN, IN EXCEPTIONAL CIRCUMSTANCES, MCLACHLIN DID IT
HERE ON A WHIM
Arbour dissent on s.7
-Deschamps agrees in separate dissent

-law is too vague; accuses the majority of “curing vagueness from the top down” by
rewriting the law to achieve Charter compliance: “At some point, in an effort to give
sufficient precision to provide notice and constrain discretion in enforcement, mere
interpretation ends and an entirely new provision is drafted.” (para. 190)
-s.1: cannot meet prescribed by law requirement, it is too vague to be prescribed by law
(this comes before the Oakes case)
-remedy: declaration of invalidity
Life, Liberty and Security of the Person and Human Dignity
B.(R.) v. Children’s Aid Society of Metropolitan Toronto, p.1110
Facts: -The appellants' child required a blood transfusion to which they objected on
religious grounds.
-The Children's Aid Society was granted temporary wardship so that the child
could receive the required medical treatment.
-The order was then terminated and the child was returned to her parents. The
parents argued that provisions of the Child Welfare Act were contrary to sections
7 and 2(a) of the Canadian Charter of Rights and Freedoms.
-Parents argue a violation of their liberty interest to make parental choices.
Issue: Does the child have rights that trump the liberty rights of the parents?
Rule: -Lamer (DISSENT): no threat to physical liberty, parents physical liberty not
being threatened, therefore no liberty argument;
-LaForest (Gonthier, McLachlin—LHD concurred on s. 7 issue): Must first

consider whether there has been a s. 7 violation. If so, decide whether it can be
justified through principles of fundamental justice
-argued that liberty includes rights to make decisions that are fundamental
personal importance. Section 7 does apply [Negative liberty argument:
freedom from state intervening, as opposed to positive liberty, right to call upon
the state to enforce/support a conception of how I want to live]. Relies on Wilson
J’s reasoning from Morgentaler – ‘privacy right’ issue.
-Decisions about raising children are within this protected sphere (Iacobucci and
Major disagree in part, saying that such a liberty can never apply to a decision to
deny medically necessary procedure to child).
-BUT finds that violation of liberty is in accordance with fundamental
justice, b/c procedure was fair—order was made pursuant to procedure in
accordance with principles of fundamental justice.
-Balancing of child’s and parents’ interests; state has a “parens patriae” interest in
protecting rights of child; ultimately, s. 7 analysis has a component of balancing.
-Section 7 is violated – intruding on parents’ right to choose, BUT the POFJ

was “procedural fairness” – they did have a fair procedure to decide how they
want to treat their children, but here it was held that they could not put their
child’s life at risk – thus this was not contrary to the POFJ
-Iacobucci and Major for 3: liberty does not include parental freedom to make choices
that seriously endanger the survival of a child – DID NOT GET PAST STAGE 1
New Brunswick (Minister of Health and Community Services) v. G.(J.)
Facts: parents’ children are taken away for a year

CAS tries to extend for another 6 months
Parents file for legal aid but are denied due to family law legislation that excludes
legal aid from custody matters
Issue: do the parents have a Charter argument?
Rule: court says that the parents should have equal representation in a matter that is so
concerning
-Lamer for 6: security of the person implicated; serious interference with

psychological integrity; stigmatization, loss of privacy and disruption of family
life also amount to a restriction of security of the person – thus s. 7 violated
-Principle of fundamental justice: in the circumstances of this case (seriousness,

complexity, capacities of claimant), right to a fair hearing required state-funded
counsel <POFJ IS PROCEDURAL FAIRNESS AND IT WAS VIOLATED>
Not all cases of this nature will give rise to a right to state funded council
-It will require a vast array of factors
-Where issue is complex
-Claimants legal intelligence capacity
-This is the leading case on s.7 challenges to the right to state funded legal
representation
Blencoe v. BC, p. 1121

<TEST FOR STRESS AS A S. 7 BREACH>
Facts: -Prominent BC cabinet minister, Robin Blencoe, accused of sexual harassment

against assistants; they filed complaints w/ BCHRC.
-Blencoe dismissed from cabinet, unemployed, had to be put under doctor’s care,
moved to Ontario, tried to get work here, could not.
-Hearing scheduled 30 months after complaint filed. Blencoe alleges violation of
s. 7 rights.
Issue: Is the unnecessary delay of the Human Rights Tribunal Hearing that causes,
additional stress, an infringement of s.7 with respect to stigma and/or dignity?
Rule: -Majority (Bastarache, McL, LHD, Gonthier, Major) affirms broader

conception of ‘liberty’ (Wilson in Morgentaler, and LaForest in Re. B and
Godbout) as including right to make ‘fundamental personal choices’ – but no
violation on facts of this case. -Right to make fundamental choice not infringed
by suffering allegations.
-On ‘security of person’, affirms that severe psychological stress may involve
breach of security of person. However, deprivation must be caused by state
action; here delay was not primary cause of stress, the allegations themselves
and accompanying media coverage (much of which occurred before delay)
was real cause.
-Blencoe argues that delay exacerbated his stress, but Court says that
psychological stress can only involve breach of security if it involves
interference with fundamental personal choices. Only in exceptional cases
(Rodriguez, Morgentaler, Re. B—decisions about one’s body or custody of
one’s children) but stress, anxiety, and stigma that result from administrative civil
procedure are not included.
-Fundamental choices are under Wilson’s definition of liberty, but in terms
of security of the person, stress is also affected by a limiting of fundamental
choices <HIS FUNDAMENTAL CHOICES WERE NOT BEING LIMITED>
(i) Two Limits to Claims Based on Psycho Stress:

(1) Deprivation must be caused by state action –here the delay was not the
cause of the stress (allegations were the cause; wasn’t induced by the
state)
[Blencoe then argued the delay exacerbated his stress]
(2) Psycho stress can only involve breach of security if it involves

interference w/ fundamental personal choices. It’s only in exceptional
cases where state interferes w/certain personal choices of an individual
that state-caused delay in HR proceedings could trigger the s.7 security of
person argument
Section 7 and the Litigation of Poverty
Positive Obligations
-The SCC has not yet accepted that sotp places positive obligations on the state to ensure
an adequate level of social assistance to meet basic human needs, although it has left the
door open slightly to the possibility of such recognition in the future
Gosselin v. Quebec
Facts: Louise Gosselin brought this action on behalf of all welfare recipients under the
age of 30 in Quebec. Welfare benefits; 2 tier – those under 30 yrs of age got
fraction of benefits paid to those over 30, unless they participated in incentive
programs
-McLachlin for majority: s.7 not yet held to impose positive obligations on the
state; evidence of actual hardship here insufficient to “warrant a novel
application of s.7” (80) the court is extremely reluctant to impose positive
obligations on the state with respect to socio-economic matters.
-Arbour dissenting: security of the person includes a positive right to state
assistance in meeting basic needs—mind you this is the dissenting judgment.
R. v. Banks
Facts: charged under the Safe Streets Act for squeegeeing

Appellants claimed the legislation was criminal in pith and substance
(Prohibition, penalty and social evil)
Issue: is there a s.7 argument available for the squeegee people
Rule: court ruled against the squeegee people.

-liberty is implicated since conviction can result in a prison sentence
-POFJ – Squeegeers were arguing that the POFJ was VAGUENESS and the law
was too vague, thus not in accordance with POFJ
-pofj: arguments based on vagueness and overbreadth rejected
Ryder: the courts have been reluctant to promote issues affecting those in poverty
through the constitution
Charkaoui SCC 2007

Facts: challenge to the validity of the security certificate provisions of the Immigration
and Refugee Protection Act; one of three appeals heard by the SCC (see also Harkat;
Almrei)
- provisions empower Ministers to issue certificates detaining foreign nationals or
permanent residents on security grounds
- reasonableness of detention must be confirmed by Federal Court judge within 48
hours (for permanent residents) or within 120 days (for foreign nationals)
- Government’s evidence need not be disclosed to detainee or lawyer
- if sec. cert. upheld as reasonable, then detainees may be deported
- Charkaoui, Harkat and Almrei fighting deportation on grounds that it will expose
them to a substantial risk of torture
- unanimous opinion written by McLachlin CJ strikes down parts of the legislation
Rule: SOTP: not because of deportation itself (paras.15-16) because non-citizens do not
have absolutee mobility rights (s.6)
- POFJ : is procedural fairness, which comprises :
1) Right to a hearing before an independent and impartial tribunal;
2) Right to a decision based on the facts and the law; and – b/c withheld evidence
3) Right to know the case against oneself and the right to answer that case – denied
knowledge of case against them
2) and 3) not satisfied
violations of s.7 reasonable limits under s.1?
- violations of s.7 difficult but not impossible to justify under s.1 (para.66)
- objective: protection of national security
- rational connection between non-disclosure of evidence and objective
- minimal impairment: special counsel would better protect detainees’ interests
without compromising security (para. 86)
remedy
- security certificate provisions declared invalid; declaration of invalidity
suspended for 1 year in order to give Parliament time to amend the law
Equality Rights – 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.
Ultra-Basic Test
• To infringe s.15, the law must:
o Directly, or by indirect effect differentiate among individuals or groups,
o On a enumerated ground (ground that is listed),
o In a manner that “discriminates”
• There are two types of discrimination claims:

o 1 – Direct
 A law which, on its face, discriminates (Gosselin, McKinney)
 Assigns benefits or burdens based on an ground
o 2 – Indirect
 A law, which is neutral on its face, that applies equally to everyone, but
whose effect is to disproportionately exclude on an enumerated or
analogous ground
 This is where most rule are now being tested
 *NO need to prove intent to exclude, only disproportionate effect
• Most claims fall under ‘equal benefit’ and protective claims – underinclusive
Early Interpretation and Application of Section 15: The Andrews Test
Andrews v. Law Society of British Columbia, 1989
• Facts: Andrews, a British citizen permanently residing in Canada met all the
requirements for the provincial bar except that he was not a Canadian citizen. He brought
a motion to strike down the requirement, claiming it was a violation of his s.15 rights
• Held, the Law Society rule violated s.15 and it could not be saved under s.1
o This case limited future challenges, by holding that the complainant would
have to link the challenged laws to personal characteristics associated with
common prejudices, stereotypes or patterns of disadvantage (listed or
analogous ground)
o Set out a test that is no longer followed requiring:
 A distinction in treatment;
 That results in the imposition of a burden or denial of a benefit;
 On the basis of an expressly prohibited or analogous ground
• Section 1 – fails on 2nd leg, though decent objectives, invalidated under proportionality
• Lavoie v. Canada, 2002 → citizenship found to be sufficiently important objective
o Less stringent approach to section 1 more like McIntyre’s dissent, than Wilson’s
maj.
Law v. Canada, 1999

• Law was a widower who was denied pension benefits due to her age.
o ISSUE: "whether ss. 44(1)(d) and 58 of the Canada Pension Plan infringe s. 15(1)
of the Charter on the ground that they discriminate on the basis of age against
widows and widowers under the age of 45, and if so, whether this infringement is
demonstrably justified in a free and democratic society under s. 1?”
• Held, the court was unanimous in holding that s.15 was not violated
o Law was unable to demonstrate that either the purpose or the effect of the
impugned provision violated her human dignity so as to amount to discrimination
based on AGE
 The court noted that challenged legislation simply reflected the fact that
people in the Law’s position are more able to overcome long-term need
because of the nature of the human life-cycle
 “Parliament is entitled, under these limited circumstances at least, to

premise remedial legislation upon informed generalizations without
running afoul of s.15(1) and being required to justify its position under
s.1” – They can have general laws related to age without them being
discriminated
 The law does not reflect that the “appellant is undeserving or less worthy
as a person, only that the distribution of the benefits to her will be
delayed until she is at a different point in her life cycle”
Law TEST
1(a) – the law itself draws a formal distinction between the claimant and others on the
basis of one or more personal characteristics (e.g. Blacks are not allowed to drive)
a. Does impugned law draw formal distinction btw the claimant and other based on personal
characteristics (enumerated or analogous)? OR
LOOK for unequal treatment between citizens in the sense of inequality before or under the law,
or unequal benefit or protection of the law
a. Formal distinctions:
• McKinney, Law → based on age
• Corbiere → based on whether band members lived on or off reserves
• Andrews → between citizens and non-citizens
1(b) – the law fails to take into account the claimant’s already disadvantaged position
within Canadian society resulting in substantially differential treatment between the
claimant and others on the basis of one or more personal characteristics (the law
discriminates in its EFFECTS)
o Akin to indirect/facially neutral discrimination (purpose vs. effect – Eldridge)
o The distinction will not be readily apparent by looking at the text of the law
o The most common examples are blanket rules that have an exclusionary effect
because they do not acknowledge or accommodate people’s real differences – eg:
 Failure to accommodate deafness – Eldridge
 Disparate impact on heterosexuals and non-heterosexuals of exclusion of
“sexual orientation” as a prohibited ground of discrimination – Vriend
• Step 1 is a comparative exercise
• Claimant chooses the appropriate comparator group
• The court may refine the comparator (Law)
• The court may also reject the suggested comparator, which might
defeat the claim
2 – Subjects the claimant to differential treatment based on one or more enumerated and
analogous grounds (HOW does it discriminate)
o The enumerated grounds function as legislative markers of suspect grounds for
differentiating among citizens, grounds associated with stereotypical,
discriminatory decision-making (Andrews)
o Analogous grounds serve as similar markers
 LOOK for grounds of historic disadvantage, marginalization,
stigmatization, lack of political power and group stereotyping
 May represent personal characteristics that are immutable (race) or
changeable only at unacceptable personal cost (religion, sexual identity)
 Once the SCC has recognized an analogous ground, it presumably does

not have to be proved again (Corbiere)
 Analogous grounds recognized by the SCC:
• Citizenship – Andrews, Lavoie
• Marital status – Miron
• Sexual orientation – Egan, Vriend
• Aboriginality, off-reserve – Corbiere
o Just because something is found to be an analogous ground does not
automatically mean there has been discrimination (Corbiere)
3 – Has a substantively discriminatory effect in the sense that the differential treatment
imposes a burden upon or denies a benefit from the claimant in a manner in which reflects
demeaning, discrediting or prejudicial group stereotypes; or perpetuates or promotes the view
that the claimant is less capable or worth of recognition or value as a human being or member
of Canadian society equally deserving of concern, respect and consideration
a. In determining whether the impugned legislation has one or more of these
discriminatory effects, the court uses a mixed subject-objective test:
i. It takes the perspective of the reasonable person in similar
circumstances who takes into account the context of the claim (Law) ⇓
Contextual Considerations:
Iaccobuci laid out four factors to be considered when determining whether the law demeans the
claimant’s dignity
(a) Pre-existing disadvantage, prejudice, or vulnerability experienced by the individual or group
in question;
(b) Whether the distinction corresponds with differences based on actual needs, (in)capacities or
circumstances of the claimant class (is there a link between the claimed grounds and the claimant’s
actual need/capacity?)
• *Remember: mere differentiation isn’t suspect; only differential treatment that
reflects or reinforces second class status and thereby fails to respect the equal
dignity of all
• *Where there is a distinction drawn that protects the most vulnerable, it will be
difficult for more advantaged persons to challenge the law as discriminatory
(Law)
(c) Whether the purpose of the impugned law is ameliorating historic or existing disadvantage
• If it excludes disadvantaged groups in need of the same remedial benefits, it
probably infringes
(d) nature and scope of interest affected-more severe and localized on the group the more likely
it’s discriminatory.****After this you go to the Oakes test
• Where the law restricts access to a fundamental social institution (medicare,
family law mechanisms, family or spousal recognition) or affects some basic
aspect of personhood (human rights code protections), it will infringe
Court is kind using the contextual approach – if the law is really heavy-handed, if the difference
between the burdens and benefits is extreme and people sharply affected, the more likely the court
will look into it.
1. Differential Treatment (May be “direct” (on the fact of the law), or “indirect’ (the
adverse effect is discrimination).
Eldridge v. B.C., [1997] 3 S.C.R. 624 (Adverse effects)
Sign language interpreters; governed by the statute hospital insurance act

(Decided before the law test):
Facts: A women was delivering a baby and couldn’t communicate with doctors because
there was no sign language interpreter.
Issue: Was a s. 15 violation?
Analysis:
Once the gov’t implements a program it can’t discriminate on any grounds, it was
held that when the government is trying to furnish a range of medical services it has to
make sure that those services do not discriminate on any grounds. It discriminates in its
effects as well, as communication between a patient and doctor was part of the parcel of
the medicare benefit. With no service provided those incapable of communicating will
be subject to adverse effects
- government argued that the Charter doesn’t apply to inaction from taking steps – this
was held to be insufficient
Decision: the gov’t has to make sign language interpreters available
While s.15 has never been held to impose positive obligations on the state, once the
state does provide a benefit, it is obliged to do so in a non-discriminatory manner
• “In many circumstances, this will require governments to take positive action, for
example, by extending the scope of a benefit to a previously excluded class of
persons”
-Thus s. 15 was held to be violated

Section 1
• Court held that it could not be justified under s.1
• “The government has manifestly failed to demonstrate that it had a reasonable
basis for concluding that a total denial of medical interpretation services for the
deaf constituted a minimum impairment of rights – 2nd stage of the of Oakes
proportionality test”
• The government was given six months to ensure that such services would be
provided where necessary
Therefore the gov’t can violate by not doing enough and be held responsible under
s. 15 for doing something that’s not enough.
Vriend 1998 SCC

- The rule or omission may be neutral on its face, but not in its effects -- 1 (b)
- Every disadvantaged group except gays and lesbians had access to mechanism to
prevent discrimination – sexual orientation was NOT an enumerated ground,
so it was added as an analogous ground
- Everyone has a sexual orientation, but NOT everyone is equal to do anything
about it
o Heterosexuals did not face a similar disadvantage – thus there was an s. 15
violation
- Iaccobuci held that this case failed all part of the Oakes test, so could not be
saved by s. 1
Question: Does s. 15 confer positive rights? There is no obligation on the state to deliver
benefits to people in need, when governments choose to act and implement a program
that delivers benefits or services, it has obligation that those services are delivered in a
non discriminatory fashion. Therefore results are usually to extend the scope of services
that the government already provides.
Recognized analogous grounds (only 4 raised so far)

• Sexual orientation (Egan; Vriend; M v. H; Hislop)
• Marital status (Miron; Walsh; Hodge) – discrimination between unmarried and
married couples, and difference of treatment with common law couples
• Citizenship (Andrews,; Lavoie )
• Aboriginality-residence (Corbiere) – a analogous grounds, living on reserve or
off reserve but still part of a band
Hodge v. Canada, [2004] 3 S.C.R. 357
Facts: A challenge to the provisions of a pension plan, whereas the survivors pension
was available to separated married spouses but not common law separated spouses.
Claimant was claiming that he was being unfairly treated on the basis that he was not
married. The Claimants used the comparator group of separated married spouses, but
court said the right comparator group was divorced married spouses.
Test for Comparator Group: The comparator group must posses the same
characteristics that are relevant apart from the claim of discrimination.
Ratio: former common law spouses and divorced spouses are treated the same, therefore
it doesn’t trigger a charter claim under s. 15, as they are both treated the same.
Auton v. B.C. (Attorney General), [2004] 3 S.C.R. 657

Facts: Challenge to the BC government to fund behavioral therapy for autistic children
aged 3 – 6. Claimants asserted the proper comparator group was non disabled children or
adults with mental illness. However the court held the right group was a non autistic
person seeking funding for a non core therapy which is emergent or only recently
becoming recognized as medically required.
Decision: Court rejected the challenge stating they were not treated differently.
Analysis: two reasons McLachlin J dismissed the claim:

1. “Non-core services” not a benefit provided by law (131-4);
2. Differential treatment not established
-The treatment at issue was not established to be useful at the time, it was still
controversial. So the comparator group has to take that into consideration and compare
them with other non-core therapies whose effectiveness is uncertain.
Wynberg 2006 Ont CA
Facts: Challenge to limitation of funding for intensive behavioral intervention for

children aged 2 -5, claimants are parents of children aged 6 and over. Claimants wished
the comparator group to be children aged 2 -5 and able bodied children over the age of 6,
they claimed there was a discrimination based on age and on the basis of disability. The
government didn’t give autistic children over the age of 6 help
Analysis: the claim failed at the 3rd step of the law test, since they were focusing
resources to the age group it was proven to help, i.e. kids under the age of 6.
Additionally, the failure to provide intensive therapy for children who were school aged,
the wrong comparator group was used, according to the court, it should have been other
disabled children over the age of 6
Hislop 2007 SCC
Facts: Challenge to the limitation of survivor benefits under the Canadian Pension Plan
to persons whose same sex spouse died after Jan. 1, 1998. Claimant argued that
limitation of same sex survivors violated his s. 15 right.
Analysis:
What is the appropriate comparator group? Claimants say comparator groups should
be between same sex survivors and opposite sex survivors whose spouses died before
1998
-Gov’t says comparator groups should be same sex survivors whose spouse died before
Jan. 1, 1998 and same sex survivors whose spouse died after that date.
Decision: The difference of treatment is based on date of death, there is no difference of

treatment on prohibited grounds, as s. 15 only protects the most vulnerable. Thus, they
agree that discrimination is present but not discrimination that s. 15 regulates
2. Enumerated and Analogous Grounds
Corbiere v. Canada, [1999] 2 S.C.R. 203
Facts
Members of the Batchewana Indian band sought a declaration that a section of the Indian
Act, which precluded members living off the reserve from voting in band elections,
violated s.15(1)
Decision:
Held, in the unique situation of Aboriginal culture, off-reserve residence was a valid
analogous ground
• Human dignity was impaired because the different treatment of off-reserve band
members implied that they were “lesser members of their bands or persons who
have chosen to be assimilated by the mainstream society”
• This case discusses analogous grounds
o All enumerated or analogous grounds “often serve as a basis for
stereotypical decisions made not on the basis of merit, but on the basis of a
personal characteristic that is immutable or changeable only at
unacceptable cost to personal identity” – e.g. religion – it would be an
unacceptable cost to change my religion
 Italicized phrase more or less = immutable
o Also look to see whether the characteristics are involuntarily inherent, as
opposed to behaviour
3. Discrimination
M v. H, [1999] 2 S.C.R. 3
Same sex relationship with economic dependency. M wants support from the Ontario
Family Law Act; definition of spouse
Challenge to exclusion of same-sex spouses from right to claim support on the
breakdown of a common law relationship. The difference in treatment on a
prohibited ground
Facts: M and H, a same sex female couple, cohabitated from 1982 – 1992. After their
business failed, H was able to find employment, but M was not. M commenced an action
against H for spousal support, asserting that s. 29’s definition of “spouse” in the Family
Law Act was unconstitutional by virtue of its exclusion of same sex couples. The court
sought to determine whether the definition of “spouse” amounted to discrimination – 3rd
part of Law test.
Decision: DISCRIMINATION WAS FOUND IN THIS CASE
-The legislation fails all three parts of the Law test as well as s.1
• The court held that the provision failed the first two sections of the Law test –
differential treatment on an enumerated ground
• Turning to the four contextual factors from Law, the court finds that there is a
significant pre-existing disadvantage and vulnerability and these circumstances
are exacerbated by the legislation
o The legislative provision in question draws a distinction that prevents
persons in a same-sex relationship from gaining access to the court-
enforced and protected support system
• Turning to the third factor, the court rejects the idea that the allegedly
ameliorative purpose (helping women in married or opposite-sex relationships) of
this legislation does anything to lessen the charge of discrimination in this case
• Section 1
o The exclusion of same-sex couples was not rationally connected to the
objectives of “the equitable resolution of economic disputes arising form
the dissolution of intimate relationships” and the alleviation of the burden
on the public purse by shifting the obligation of support to the parents or
spouses who have the capacity to do so
-Thus fails section 1 of the proportionality test
REMEDY:
The court struck down the offending provision (s.29) subject to a six-month delayed
declaration of invalidity.
- Instead of reading in same-sex couples, the court distinguished Vriend. Here,

reading in s.29 would have had significant repercussions for a separate and
distinct scheme under the FLA. Therefore, it is not safe for the court to assume
that this is the path that the legislation would have taken.
- Striking down the entire FLA would be excessive: since the offending provisions
are not so inextricably bound up with the non-offending that they cannot
independently survive, it is safe to assume that the legislature would have passed
the sound parts without the unsound parts.
- Therefore, severing s.29 of the FLA (declared of no force and effect) temporarily
suspended for six months: the suspension is necessary to give the legislature time
to devise its own approach to solve the unconstitutionality of the FLA and of
other Acts which use similar offending definitions of “spouse”. The legislature is
better suited to address these issues form both a financial and a democratic point
of view.
Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429
Facts: Louise Gosselin brought this action on behalf of all welfare recipients under the
age of 30 in Quebec. Welfare benefits; 2 tier – those under 30 yrs of age got
fraction of benefits paid to those over 30, unless they participated in incentive
programs
Issue: Is this age based differential treatment a violation of s. 15(1)?
Rule: Found there to be no breach of s. 15(1). Examined the issue from the perspective
of a reasonable welfare recipient who is under 30 years old – ask, would this
reasonable young welfare recipient think the program is reasonable?
-The court argued that the reasonable welfare recipient would like to receive less
welfare in exchange for incentives that would help them get a job
-Whether or not a reasonable person in circumstances similar to that of the
claimant would find that the legislation which imposes differential treatment
has the effect of demeaning the claimant’s dignity?
-In the Majority’s view, this government program enhanced their dignity; it did
not detract from it. The Majority said the purpose of the program was to get
unworking young people back on their feet
-Haigh says: “reasonableness” does not need to be imbued in s.15(1) – that is
what we have a sec 1 analysis for
because of the contextual factors raised in the Law Test, reasonableness enters the
s. 15(1) analysis – this makes it increasingly like an Oakes analysis creeping into
this case
-idea of reasonableness is now express in s.15(1) analysis. Rejected in Andrews;
implied in Law via the dignity concept.
-welfare in Quebec, less $ for younger persons, not discriminatory since getting a
job will aid dignity
McLachlin for majority: s.7 not yet held to impose positive obligations on the state;
evidence of actual hardship here insufficient to “warrant a novel application of s.7” (80)
the court is extremely reluctant to impose positive obligations on the state with respect to
socio-economic matters.
Arbour dissenting: security of the person includes a positive right to state assistance in
meeting basic needs—mind you this is the dissenting judgment.
Note: Canadian Foundation for Children, Youth and the Law v. Canada
<SPANKING CASE>
• s.43 of the Criminal Code upheld in 6-3 ruling
• imposes differential treatment on the basis of age
is it discriminatory?
• McLachlin for majority finds no violation of human dignity even though three of
the contextual factors lean in that direction (para.56)
for the majority, the correspondence factor is determinative: s.43 “responds to the
reality of [children’s] lives by addressing their need for safety and security in an
age-appropriate manner.” (para.51)
• Arbour dissent: did not address s.15
• Binnie dissent: s.15 violated; s.43 a reasonable limit for parents, not teachers
(123)
• Deschamps dissent: s.15 violated; s.43 cannot be upheld pursuant to s.1 as it does
not minimally impair children’s equality rights and its negative effects are
disproportionate (124)
Section 15(2): Affirmative Action
Lovelace v. Ontario, 2000

(Affirmative Action)
• Plaintiffs were a group of non-registered First Nations bands (Métis) who were
status Indians. They applied for a declaration that they were entitled to share in
the profits of Casino Rama. The trial judge sided with the plaintiffs and the
Ontario Government and Chiefs of Ontario appealed.
• Held, the court was unanimous in their decision that the appellants failed to
demonstrate that, viewed from the perspective of the reasonable individual, in
similar circumstances, the exclusion from the First Nations Fund had the effect of
demeaning the appellants’ human dignity
o Iacobucci concluded that the appropriate comparison group was between
the situation of band and non-band Aboriginal communities
• The court then considered the four contextual factors
o 1 – Pre-existing Disadvantage, Stereotyping, Prejudice or Vulnerability
 Appellants failed to establish that the First Nations Fund
functioned by device of stereotype
• The fund does not conflict with the purpose of s.15(1) and
does not engage the remedial function of the equality right
o 2 – Correspondence to Needs, Capacities and Circumstances
 Focuses on the partnered relationship between First Nations bands
and the government
 While the non-band groups have similar needs of economic
development, etc, the court stresses the specific aims of the
program
o 3 – Ameliorative Purpose
 Both claimant and targeted group are equally disadvantaged
 Dealing with a targeted ameliorative program which is alleged to
be underinclusive
 “The First Nations Fund has, therefore, a purpose that is consistent
with s.15(1) and the exclusion of the appellant does not undermine
this purpose since it is not associated with a misconception as to
their actual needs, capacities and circumstances”
o 4 – Nature of the Interest Affected
 ???
Manitoba
• How did parliament obtain power to create Manitoba in 1870 with the Manitoba Act?
They didn't have the power until Constitution Act 1871. See s. 4, regulating powers over
land that is part of Canada but not a province. S. 5 declares retroactively valid the
Manitoba Act. s. 23 Manitoba Act. C.A 133.
Patriation
• Once patriation takes place, Imperial law can no longer simply declare Colonial laws (i.e.
Manitoba laws) to be valid.
• S.43 allows amendment of the constitution by proclamation of the Governor General and
approval of two federal houses and the assembly of the province in question (of course
the assembly of Manitoba is in this case invalid).
• An amendment was worked out such that future legislation would be bilingual but the
previous legislation would be valid retroactively (temporary validity) without having to be
translated. Circularly, this made the provincial assembly valid, which allows for use of
section 43(45?).
• Case had to be heard by the Supreme Court directly from the Provincial Magistrate,
because the Court of Appeal did not exist prior to 1908. Case had to be argued without
using any unilingual acts.
Re Manitoba Language Rights [1985] 1 S.C.R. 721 (P371)

Supreme Court of Canada
• Constitution Act, 1867 s.133: Acts of the legislature shall be printed and published in both
English and French.
• Manitoba Act, 1870 s.23: Almost same wording as the Constitution Act, 1867 s.133.
Entrenches s.133, creating manner and form requirements for future legislation.
• Manitoba enacted the Official Language Act, 1890: Notwithstanding any statutes or laws,
Manitoba is going to use only English in their Acts and records.
• An Act Respecting the Operation of s.23 of the Manitoba Act in Regard to Statutes, 1980
(ARO23MA) s.4(1): Legislation introduced in one Official language would be translated
into the other language after enactment and the translation would have the same force
and effect.
• Questions put to the court:
• Are the requirements of s.23 and s.133 mandatory? (A: Yes)
• Are statutes and regulations not printed and published bilingually invalid because of
s.23? (A: Yes, but they are temporarily valid until translated.)
• If invalid, do they have any force or effect? (A: Yes, because of temp. validity)
• Are any provisions of ARO23MA inconsistent with s.23, and of no force or effect? (A: If
ARO23MA was not printed and published bilingually, it is completely invalid and of no
force or effect. Either way, ss.1-5 are invalid and of no force or effect because they are
at odds with s.23 in purporting to authorize:
o Unilingual enactment, with translation later.
o Enactment of a translation by certification and deposit with a clerk of the house,
giving force of law without royal assent by Lt. Governor.
o Resolution of ambiguities by reference to text in one language, while texts are
supposed to be equally authoritative.
• Even though Manitoba laws were deemed to be of no force and effect, they were saved
by the de facto doctrine and rule of law, and given temporary validity. The de facto
doctrine gives effect to expectations of those who relied upon invalid laws. Rule of law
allows for measures, such as temporary validity, to be taken in order to avoid legal chaos.

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Constitutional Law of Canada 1

Libman 1997 SCC – page 990...............................................................................87

Two competing interpretations:

1) Federal powers are “general” in scope as indicated by the POGG, unlimited by

Choosing between competing classifications (page 206)

Three steps described by Abel:

1) identification of the matter of the statute,

Step 1: Identification of the matter of the statute

Judges look at:

- the statutory context

- Some judges give more weight to the effects, others to purpose.

Step 2: the scope of the classes of legislative subjects

- despite reference to “exclusivity”, ss. 91 and 92 open the possibility for

Step 3: determining the class in which the challenged status falls

Starr v. Houlden (page 212)

R. v. Morgentaler (page 213)

Purpose and Effect:

Necessarily Incidental (aka “ancillary doctrine”)

Analysis <TEST FOR NECESSARY INCIDENTAL DOCTRINE>:

Application to the impugned provision:

Double Aspect Doctrine (Page 231)

Multiple Access Ltd. v. McCutcheon (1982) SCC (page 232)

(Example of Double Aspect Doctrine)

1) The Classical Paradigm has been applied to legislation that is viewed as

THE INTERJURISDICTIONAL IMMUNITY DOCTRINE

Interjurisdictional Immunity doctrine – The conceptual opposite of the Double Aspect

Commission de la Sante et de la Securite du Travail v. Bell Canada (Bell #2) (1988)

-What about Double Aspect doctrine? Court characterized the DA doctrine as

Ratio/New Test for Interjurisdictional Immunity doctrine:

First, assess whether a) Provincial law is of specific application OR b) Provincial law

o If specific (specifically aimed at a federal entity), the law is invalid.

- If it directly affects, it is sufficient that the legislation affects a vital or central

- If it indirectly affects, then the legislation must go as far as to sterilize/impair the

 Broader reading of conflict - would hold a valid provincial law inoperative

Multiple Access Ltd. v. McCutcheon (1982) SCC – page 260

- Facts: Federal government passed Corporations Act, provinces have Securities

Bank of Montreal v Hall, (1990) SC – page 264

- Holding: Doctrine of paramountcy may be invoked as the two Acts are

- Ratio: Court adopted a more broad application of paramountcy doctrine: “A

Saskatchewan v. Rothmans, Benson and Hedges (2005) –

o Can a person simultaneously comply with both federal and provincial

Peace, Order, and Good Government

Reference re: Anti-Inflation Act, 1975, [1976]

The court ends up rendering a decision based on emergency – how come?

Judges Emergency National Concern Reasons

3) The important question is if there is an emergency at the present time.

Emergency or National Concern?

Emergency National Concern

would have been listed in one of the

 The 4 judges who decided

 Beetz (for 5 members of

All 9 judges agree on the following:

- Test for determining valid p.o.g.g power of Emergency legislation:

The National Concern Doctrine after the Anti-Inflation Reference

- This branch, given a narrow/ambiguous scope in the Anti-Inflation reference, was

R v. Crown Zellerbach Canada Ltd, SCC 1988

1) The national concern doctrine is separate and

originally matters of a local nature, have since, in the absence of national