Application of the Charter: S.

32(1) (a) = fed (b) = prov

Eldridge v. British Columbia (A.G) (1997)(SCC) at para. 44
Greater Vancouver Transportation v. Canadian Federation of Students (2009) (SCC) at paras.15‐ 16
The Charter applies if the entity:
1. is itself government by its very nature or the degree of governmental control; or
2. is engaged in a particular activity ascribed to government (i.e., implementing a specific statutory
scheme or government program)

Section 1 of Charter Justification Test

(R v Oakes 1986, SCC at para. 66, Saskatchewan v Hutterian Brethren of Wilson County at para. 39+):]
Burden on government, civil proof by a preponderance of probability.
1. Is the limit prescribed by law?
a. Statute will count
b. Acts by officials not justified by law will fail Little Sisters Book & Art v Can 2000 SCC
c. Codified discretion in statute counts (Re Ontario Fil and Video Appreciation Society 1984)
d. Greater Van Trans Auth v C.F.S 2009 – “accessible and precise” guidelines count.
e. Law must be precise (Irvin Toy v Que 1989 – no intelligible standard fails)
2. Is the Purpose of the Limit Pressing and Substantial?
a. RJR Macdonald – protecting vulnerable people, children, from advertising
b. If no objective when drafting the legislation then fails Vriend v AB 1998 (HR – Sex. Orient)
c. Inadmissible: Contradictory to other right (Big M 1985) Shifting Objectives (R v Zundel - cannot apply modern
interpretation of objectives) Costs (Sing v Minister of Employment and Immigration 1984) unless emergency (NFLD
v N.A.P.E gender pay gap + financial crisis)
3. Is the Means by which the Goal is furthered Proportionate?
a. Is the Limit Rationally Connected to the Purpose?
a. How has it been tailored to suit the purpose (R v Edward B&A 1986)
b. Benner v Canada 1997 (no logic behind stricter standard for citizenship of foreign born child to
Canadian mother than Canadian father)
c. Gr. Van. Trans Auth v. CFS 2009 – censoring political expression not rationally connected to
providing a safe welcoming transit system)
d. Causation – based on logic, not necessarily proven facts McLachlin CJ RJR
b. ii. Does the Limit Minimally Impair the Right?
i. Ford v Quebec – total ban on English too drastic to protect French language
ii. Denying non-residents too drastic to regulate standards of legal profession Andrews
iii. Margin of appreciation: R v Edward B&A 1986 – apply standard flexibly; looking for legislative effort to
minimize infringement.
c. Is the Law Proportionate in Its Effect?
i. Hutteran Wilson County – Salutory effects of universal photo outweigh deleterious effects of religious
rights to believe in idolatry as a sin.
S. 33 – Override
33(1) Parl or legislature may expressly declare in an Act that the provision will operate notwithstanding a provision in s. 2, 5, or 15.
33(2) It must refer to the Charter right it excludes.
33(3) it has a 5 year limit.
This mustbe EXPRESS declaration and specifically identify the statute to which it applies. If it satisfies this, the law cannot be subject
to judicial review.

Ford v Quebec – an omnibus legislation was sufficient, because it was express and sufficiently precise. But, it cannot apply
retrospectively.
Test for religious freedom. S. 2(a)
R v Hutterian Brethren of Wilson County 2009, universal photo + identity theft prevention > sin of idolatry.
Multani v Commission scolaire Marguerite-Bourgeoys 2006 – s. 1 safety, too broad (sewn wooden sheaf)
Syndicat Northcrest v Amselem 2004: religious beliefs can change

1. the claimant sincerely believes in a belief or practice that has a nexus with religion; and
a. B.R v Children’s Aid Society 1995 – Broad – right to refuse blood transfusion
b. A.C v Manitoba 2005 – “consider the best interests of the child” includes religious beliefs, thus no breach.
c. Belief need not be widely held, intensely personal, expert advice not necessary (Amselem)
2. the impugned measure interferes with the claimant’s ability to act in accordance with his or her
religious beliefs in a manner that is more than trivial or insubstantial.
- Purpose – R v Big M Drug Mart (case that sets this out)
o Zylberg v Sudury Board of Education – required daily religious practices, even multi-denominational = breach. Peer
pressure to conform.
o R v Jones – right to educate outside of secular system; subject to core curriculum. S. 93
- Effect – R v Big M Drug Mart
o R v Edward Books and Art (Sunday only would impose burden to abandon own sabbath)
o A.C v Manitoba 2005 – “consider the best interests of the child” includes religious beliefs, thus no breach.
s. 1
- Ross v N.B School District no. 15 (1996) – Reducing climate of anti-semitism and promoting inclusiveness
Balancing with s. 7 and s. 11(d)
- right to to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and
impartial tribunal
- No charter right is absolute, thus court must balance conflicting rights
1. Does removal of the naqib breach right to religion (subjective)
2. Does wearing the niqab breach right to fair trial?
3. Can both be accommodated?
4. If not, do salutary effects of removal outweigh deleterious effects of non-removal
a. If proceedings are high stakes and witness evidence is critical, niqabs almost certainly should be removed.
b. Abella J dissenting: Discentives victims, other means used, such as screens.
Test for Freedom of Expression. S. 2(b)
Irwin Toy v Quebec 1989 SCC
Test:
1. Does the activity fall within a sphere protected by freedom of expression?
KEY ISSUE: Does the expression convey meaning?
This can be very broad. Only express limit is violent expression.
Prostitution Reference 1990 – communication - expression
2. Whether the method and location of the expression is consistent with the purposes underlying s. 2(b) (This comes from the
Montreal (City) v 2952 1366 Quebec Inc)
a. Noise does not interrupt use of streets.
b. Court House Picketing -Van Court House Case 1988
3. Was the purpose or effect of the govt action in issue to restrict freedom of expression?
Key issue: was the govt's purpose to control attempts to convey a meaning either by restricting the content or the form tied to
the content.
Common Law rules excluded, Dolphin Delivery secondary picketing, tort inducing breach of K
If it attempts to control the physical consequences of a particular conduct, its purpose does not trench upon the guarantee.
Physical consequences test: Does the mischief consist only in the direct physical result of the activity VS does the mischief consist in
the meaning of the activity or the purported influence that meaning has on the behavior of others? (Irwin Toy)

Freedom of expression is not absolute. Balance fundamental vlues of freedom of expression and competing Charter right and
democratic values: commitment to equality and respect for group identity and the inherent dignity owed to all human beings.
R v Zundel 1992 – Falsehoods are allowed. So long as they are not malicious (Defamation)

s. 1
- balancing hate speech: for the limit to be proportional speech must rise to the level of seeking to marginalize the group by
affecting its social status in the eyes of the majority. Saskatchewan (Human Rights Commission) v Whatcott 2013 SCC –
- objective of controlling noise pollution sufficiently important and other means to express were available. Montreal (City) –
- Reducing climate of anti-semitism justifies. Placement in new position is minimal. Firing from new, non-teaching would not
be justified. Ross v NB School Distric N0 15 1996
- Court House Picketing justified “assuirng unimpeded access to the courts” = impartial and precise Van Court House Case
1988
- obscenity, explicit sexual violence, degrading / dehumanizing sex R v Butler Sopinka J
- Possesion of Child porn contributes to market, thus infer exploitation and harm to child
- Full bans on speech are not permitted, Ford v Quebec (predominant would suffice) RJR-Macdonald
- No compel speech RJR MacDonald – but message coming from Minister of health is okay.
Test for Life, Liberty and Security of the Person
No Corporations.
Charkaoui v Canada (Citizenship and Immigration) 2007 SCC
1. Has there been a deprivation of the right to life, liberty, or security of the person?
a. Life - Chaoullli v Quebec (AG) 2005 SCC – Hospital excessive wait times
b. Liberty - Protection against physical restraint (imprisonment)
i. Make fundamental personal choices. R v Morgentaller No 3. “go to the core of what it means to enjoy
individual dignity and independence." Godbout v. Longueuil (City), [1997] para 66
ii. Lifestyle choices do not count. R v Malmo-Levine
iii. No Economic Rights
c. Security of the person
i. Spanking is a breach (justified)
ii. Psych New Brunswick v G(J) 1999 SCC - the impugned state action must have a serious and profound
effect on a person's phsychological integrity. Reasonable sensitivity test. Need not be shock.
iii. No Econ - Gosselin v Quebec. (minimum social assistance)
Was it in accordance with the principles of fundamental justice?
o Must be a legal principle
o There must be a significant social consensus that the legal principle is fundamental to the way in which the legal
system ought to fairly operate.
o It must be identified with sufficient precision to yield a manageable standard against which to measure deprivations
of life, liberty or security of person.

No imprisonment without fault Re B.C Motor Vehicle Act 1985 SCC.

- Absolute liability offences with no mens rea component = breach of FJ.
Laws should not be vague R v Nova Scation Pharmaceutical Society 1992 SCC
- Fundamental justice requires that laws offer an intelligible standard; there must be an adequate basis for legal debate.
Laws should not be overly broad R v Heywood 1994 SCC
- Overly broad = are those means necessary to achieve the State objective? Overbroad laws = arbitrary or disproportionate.
Laws should not be arbitrary Canada (AG) v Bedford 2013 SCC (para 97-100)
- Statute allowing Courts to authorize medical treatment for persons under the age of 16 who may wish to refuse treatment on
religious grounds was found not to be arbitrary.
Laws should not be grossly disproportionate Suresh v Canada (Minister of Citizenship and Immigration)
- Means taken to achieve an objective can be disproportionate to the desired end so as to offend the principles of fundamental
justice.
Fundamental justice may require substantive protections to ensure a fair trial in the administrative and civil context.
- Charkaoui 2007 – SCC held that the secrecy in the security certificate scheme denied the person named in the certificate to
know the case put against him or her. To satisfy s. 7, either the person must be given the necessary info or a substantial
substitute for that info must be found.
- Harkat 2014 – SCCC upheld the revised certificate scheme.
S. 1
Canada v PHS Community Services Society 2011, SCC "Insite Case" - The Minister's decision to refuse renewal was arbitrary
because it undermined the very purpose of the Controlled Drugs and Substances act: the protection of health and public safety
Equality of Rights
s. 15(1) every individual is equal before and under the law and has the righ tot equal protection and equal benefit of the law without
discrimination, and in particular, without discrimination based on race, national or ethnic origin, colour, religious, sex, age or mental
or physical disability.

Standing: Only individuals. Not corps. 15(1) says "individual".

Kapp test
1. Does the law create a distinction based on an enumerated or analogous ground?
a. Analogous = immutable or constructively immutable
b. Marital Status (Miron v Trudel 1995), Sexual Orientation (Egan v Canada 1995), non-citizenship (Andrews v Law
Society of BC 1989), Aboriginal status as it apploes to a band member living off the reserve (Corbiere v Canada
1999)
c. Non-analagous: place of residence (Siemens v MB), Professional status (Delsic v Canada 1999), substance
orientation (R v Melmo-Levine), poverty (Alcorn v Candada)
2. Dose the distinction create a disadvantage by perpetuating prejudice or stereotyping?
a. Direct discrimination (explicit distinctions in text of statute)
b. Adverse effect discrimination (disproportionate effect on a particular group in practice – heigh in police = fewer
women)
c. Pre-existing disadvantage (historical vulnerable or subject to prejudice, correlation between the grounds of the claim
and actual needs and capacities of claimant, nature scope of the interest (severity)
3. Differential treatment (resulting from application of neutral law by govt agent) Little Sisters Book and Art Emporium v
Canada (n.b law upheld, implementation must be remedied)
4. Does the scheme at issue fall under the affirmative action provisons of s. 15(2), namely?
a. Does the program have an ameliorative or remedial purpose; and
b. Does the program target a disadvantaged group identified by the enumerated or analogous grounds?

15(2) – Affirmative action test

1. Does the scheme at issue fall under the affirmative action provisions of s. 15(2), namely?
a. Does the program have an ameliorative or remedial purpsoe; and
b. Does the program target a disadvantaged group identified by the enumerated or analogous ground

Law v Canada Iacobucci. - under 35 beneficiary ineligible for survivor benefits in CPP, because the distinction did not discriminate
because of the correspondence factor; a under 35 year old is in a better position to earn money.

Gosselin v Que – Lower welfare benefits for ppl < 30 if they did not attend training programs upheld: are requirement corresponded
with younger people’s ability to benefit from training programs.

R v Kapp – 15(2) communal fishing program did not violate s. 15(1) because it fell under s. 15(3)
Pith and Substance:
Canadian Western Bank at paras 25‐ 32 - COPA at paras 17‐ 18 and 22‐ 23
Pith and Substance involves a 2 part approach:
1. identify what is the dominant characteristic (based on the purpose and effect) of the law (i.e., what
does the law do, and why)? And
- True Purpose: Canadian Western Bank v Alberta 2007 SCC.
- Consider legislative history R v Morgentaler
2. assign the “matter” to a head of power

- Matters are exhaustive; Local nature = 92(16), Fed 91. POGG

- Colourability: Where the express words of the Act seek to conceal the true intention of the act.
- Presumption of Constitutionality: Thus, if two readings, choose that which supports the validity of the law, finding of fact not
necessary, can read down.
- Concurrency: Export of Nat. Resources 92(A)(2) + T&C; 94A Fed power on old age pension, s. 95 concurrent powers over
agriculture and immigration. Any conflict settled by paramountcy.
- Progressive interpretation: Categories are not water tight, Lord Atkin Labour Convention Case 1937 PC Affm Same Sex
Marriage Reference.
- Ancillary Power: GM v City National Leasing
o Provision intrudes in other levels exclusive power
o Broader legislative scheme is valid
o Provision is critical to scheme
o Minor encroachment: Rational Connection: Major encroachment: necessary and essential.
- Unwritten rules of democray, protection of civil liberties, role of law, Manitoba Language Ref 1985.

Paramountcy
(Canadian Western Bank v Alberta 2007 SCC at para. 73)
Where overlapping federal and provincial laws conflict, the provincial law is rendered inoperative to the extent of
the conflict.
What is a conflict?
1. Both laws are valid.
2. Operational incompatibility; or
a. Can a person simultaneously obey both? Dual Complaince.
3. Frustration of federal law purpose
Results: Law is inoperative to the extent of the inconsistency.

Dual compliance – Multiple Acces v McCutcheon – securities acts vs insider trading in fed company law. Essentially same redy for
same conduct, thus no breach of dual compliance.
B.C v Lafarge – Van Port authority. Mere requirement of municipal approval gives rise to operational conflict. (really this is IJI)
Alberta v Malondey 2015 – BIA: one discharged from bankruptcy is released from provable claims. Thus, provincial rule requiring
payment of fine for license reissuance fails for paramountcy. Cannot obey both. Also offends purpose of allowing bankrupt to restart
their lives.
Sask v Lemare Lodging 2015 – BIA 10 days notice to debtor for enforcing security. Sask Law = 150 days notice to debtor when
enforcing security. Held, you can logically do both. Dissent: frustrates purpose of quick, effective and efficient resolutions in
bankruptcy. Cf Bank of Montreal v Hall 1990 – Fed law allowed for seizure of fram equip w/out notice. Prov law required serving
final notice. Frustrated purpose of quick and effective enforcement of security.
Inter-jurisdictional Immunity
1. Identify the pith and substance of the challenged legislation (a municipal bylaw is, for constitutional
purposes, the equivalent of a provincial law);
2. Apply the 2‐part IJI test:
ii. determine whether the challenged provincial law trenches on the protected “core” of a federal
head of jurisdiction; and
iii. if yes, determine whether the challenged provincial law’s effect on the exercise of the federal law
is “sufficiently serious” to invoke the IJI doctrine. (COPA at para 27)
3. To apply the IJI doctrine, it is necessary to determine whether existing case law supports applying IJI
in the circumstances. If such case law does not exist, then the IJI doctrine should not be applied
(Canadian Western Bank at paras 77‐78).

History:
 Pre Bell 1966 – the provincial law had to sterilize the federal undertaking.
 Bell 1966 – threshold altered. The prov law had to “affect a vital part of the management and operation of the undertaking”.
o Minum wage = affects the core of labour relations within the telecommunication firm
 Bell 1988 – occupational health and safety laws affected the vital core by regulating labour relations.
o Beetz J: In principle “a basic, minimum and unassailable content” must be assigned to each head of power. The
heads of power are exclusive to each level of government. Thus, provincial laws cannot affect those basic and
minimum cores. He was concerned about “two-fold jurisdictions” encouraging a “proliferation of regulations” as a
source of uncertainty leading to endless disputes.
 Irwin Toy v Que 1989 – ban on advertising. Does that affect the core of media? Held, no. It was indirect. It affected
advertisers ability to advertise, it did not regulate the media itself.
 Canadian Western Bank v Alberta 2007: see test above.
o Insurance Act effect on “deposit taking institutions”. Requires banks (and credit unions) to obtain a licence and
comply with provincial Cons Prot laws in order to promote insurance to their customers.
o Bank Act permits banks to promote certain types of creditor’s insurance applied to loans. In practice, the insurance
was not optional, and it helped secure the bank’s portfolio of loans
o Held: Creditor’s insurance was not essential or necessary; banks could lend without it. It was “far too removed”
from the essential core of banking.
 B.C v Lafarge Canda 2007 – municipality by-law vs federal regulation of ports. Held, this was not IJI because it was not a
core of navigation and shipping. However, they held it to be inoperative by way of paramountcy. Thus, it was inapplicable to
the port. (Hogg: this is IJI. Bastarache J came to the same conclusion in an concurring judgment)
 Que v COPA 2010- McLachlin CJ. agricultural zoning (non-agricultural use prohibited) is inapplicable to the extent that it
prohibits aerodromes in agricultural zones. Placement of aerodrones is at the core of aeronautics.
 Vancouver Intl Airport v Lafarge Canada 2011 ABCA. Creditors of contractors sought to register lien under prov law on
airport leaseholder, who operated the airport. ABCA held that registration of the lien would diminish the Airport Authority’s
ability to finance the construction and improvement of the facilities at the airport. Execution of the lien would halt airport
operations. Thus IJI applied.
 Rogers v Chateugauy – City issued “notice of reserve” under prov law to stop construction of federally approved
communication tower. Applying Bell, held that IJI applied. Communication towers were essential to telecommunications.
 Air Canada v Ontarion – selling liquor is not a vital core. Selling food and drink would be on long haul flights.
Trade and Commerce
Is the Prov Act intra / ultra vires?
Is there a federal act, is it ultra vires?
Paramountcy, IJI, Dual Aspect Doctrine, Anciliary Purpose.

Insurance v. Parsons (1881) (PC)

Section 91(2) of the CA 1867 includes:
1. international and interprovincial trade regulation; and
2. (maybe) general regulation of trade affecting the nation.

R v Klassen – if P+S is interprovincial trade, fed can regulate purely local issues, such as grain quotas.
Dominion Stores v The Queen 1979 – Voluntary Grading system. Had to be used for intraprovincial trade. Unconstitutional because it
was regulation of local trade in an industry.

Regulation: General Motors v. City National Leasing (1989) (SCC)

‐affirmed the analysis for whether a legislative provision is within the “general” trade and commerce power under
s.91(2) CA 1867:
i. general regulatory scheme;
ii. scheme monitored by oversight of regulatory agency;
iii. legislation concerned with trade as a whole, rather than with a particular industry;
iv. legislation should be of a nature that the provinces jointly or severally would be constitutionally
incapable of enacting; and
v. failure to include one or more provinces or localities in the legislative scheme would jeopardize the
successful operation of the scheme in other parts of the country.

Re Secuirites Act 2011 : (1) secuirities is an industry, and the regulation governed types of K and property traditionally held under
prov (2) Systemic risk argument was rejected, because it offered no more protection than provincial. (3) provinces could opt out failes
v. of GM test.

Property and Civil Rights

Is the Prov Act intra / ultra vires?
Is there a federal act, is it ultra vires?
Paramountcy, IJI, Dual Aspect Doctrine, Ancillary Purpose.

Regulation of any industry or the more general regulation of prices or profits is regarded in terms of its immediate impact upon
freedom of contract and property rights (Insurance v Parsons 1881 PC)

Particular Industry – industries even when the industry and particular firms extend beyond the boundaries of a province
CanadianWestrn Bank para [80]
Regulating business - manufacturing + sales are province. Import of goods is federal Margarine Reference 1951 PC
Regulating Professions – Labour Standards / relations (Toronto Electric). Unless essential to fed competency (Stevedores Reference)
Marketing Interprovincial – If marketing merely effects interprovincial trade, then it is valid (Shannon v Lower Mainland Dairy
Board)
Marketing Intraprovincial – where marketing intends to affect interprovincial marketing ultra vires (Manitoba Egg Reference)
Peace, Order and Good Governance (91 opening words)
Is the Prov Act intra / ultra vires?
Is there a federal act, is it ultra vires?
Paramountcy, IJI, Dual Aspect Doctrine, Ancillary Purpose.

Can the act be sustained on the basis of Parliament’s emergency powers. (Anti Inflation Reference (1976) SCC)
- Is the law in pith and substance in relation to emergency, and
o “matter of serious national concern” + rational basis for finding emergency exists. Inflation counts.
o Wages not sufficiently distinct. (Inflation)
- Is the law temporary
National Concern: A new matter can be added if it is of national concern.
- Must be distinct: Does it have singless, distinctiveness, and indivisibility so that it does not fall under a matter of provincial
concern? R v Zellerbach 1985 SCC
o Marine dumping (zellerbach)
o Must have ascertainable and reasonable limits so not as to remove provincial heads of power.
- Provincial Inability: Would the failure of one province to regulate the matter carry grave consequences for other provinces or
the general population? Johannesson v West St Paul. General concern of the dominion as a whole.
Criminal Code 91(27) –
Margarine Reference 1951 PC
Three P’s
Pith and substances: Prohibition, Penal, criminal law purpose (peace, order, security, health and morality)
- Boggs v The Queen – purpose cannot be violation of valid provincial law (road rules)
- RJR – when direct means overly oppressive, parl can pass indirect measures. Banning the act, which is not itself dangerous,
must be logically casually connected to protect the public from the dangerous act.
- Food / Drugs that are dangerous or injurious to health (Margarine) Illicit drugs count Schneider v The Queen 1982
- Labatt Breweries v AG Can 1979 – Deceptive practices fall under crim law, but not light beer failed “too general”
- Protecting state interest in foetus is criminal law purpose. Rejects “new safe measures” But R v Morg 1988, breach of s. 7
right.
- Competition law: Lord Atkin in P.A.T.A 1931 PC, “if commercial activity is described as contrary to public interests it can be
properly governed by criminal law”.
Prov Power to enact criminal laws: 92(15) punishment by fine, penalty, or imprisonment for purpose of enforcing valid provincial law.
(1) Is the prov law valid? Yes
(2) Are the penalties ancillairy to that power? Ancilliary = must allow fed law to operate in its entirety.
- Bedard v Dawson – upheld prov law on closing disorderly houses. (1) applied to property (2) law suppressed conditions
for causing crime.
- Chatterjee v Ontario 2009 SCC –
o Civil Remedies Act – forfeiture of money when it is proceeds of unlawful activity. The law was designed to
make criminal activity unprofitable and to cycle money back to beneits of crime. Thus, law upheld as
prevention of crime.

Criminal Regulation
- R v Hyrdo – allows for complex legislation
- RJR MacDonald v Canada – Indirect purpose is allowed
- Re Firearms: So long as there is a proper purpose, regulation is permitted.
o Re Assisted Human Reproduction Act 2010 SCC
 McLachlin: so long as 3ps satisfied, regulatory scheme is intra vires crim law
 LaBell and Deschamps JJ- Qualified exemptions were “beneficial practices” Absolute bans were morlly
reprehensible. Qualified colourable attempt to legislate a provincial power.
 Cromwell J: entire act fell under management of hopsitalms, P/CR, and purely local issues. It was a
regulation of virtually every aspect of research and clinical practice.
Aboriginal Rights - Overview
 91(24)CA 1867
o Parliament of Canada has exclusive legislative authority over “Indians, and Lands reserved for Indians”
o S. 35(2) 1982 CA: “Aboriginal interests = Indian, Inuit, and Metis (thus giving continued effect of entrenched Indian
constitutional rights.
 Indian Act 1985
o Provides framework for using Parliament’s exclusive power to legislate over Indians and their reserved lands under
91(24) CA 1867
o Act differentiates between “Status” and “non-status” Indians.
o Lands reserved for Indians include non-surrendered land reserve for Indians in the Royal Proclamation of 1763 and also
will include lands held pursuant to Aboriginal title.
 S 88 Indian Act 1985 – subject to any treat and any other Act of Parliament, all lawas of general applications from time to time
in forced in any province are applicable to and in respect of Indians, subject to certain exceptions.
o It provides absolute protection against any significant infringement of treaty rights by provincial legislature.
o It renders provincial laws of general application applicable to “Indians” as federal law.
o It prevents prov laws from applying to Indians if those laws overlap with subject matter of the Indian Act.

5 Exeptions to the general rule that prov laws apply to Indians.

 Prov laws cannot single out Indians (this would infringe upon Fed authority s. 91(24) CA 1867).
 Prov cannot pass laws that affect “indianess”. E.g laws that affect Indian status (adoptions rules) or deprive them the right to
possession of land on an indian reserve.
 If a prov law is inconsistent with the Indian Act, the Indian Act trumps (paramountcy).
 Prov’s cannot pass laws that might interfere with Natural ressource agreements relating to Indians.
 Post 1982, Prov cannot pass general laws that would interefew with Aboriginal and treaty rights protected by s. 35 of the CA
1982.
o Thus resource or hunting rights that affect Aboriginal or treaty rights are not applicable to Indians.

Rights of Abroginal People of Canada: Set out in Part II of the CA 1982

s.35 provides that’s
 (1) The existing Aboriginal and treaty rights of the Aboriginal people of Canada are hereby recognized and affired.
 (2) in this act, Aboriginal peoples of Canada include Indian, Inuit, and Metis peoples of Canada
Aboriginal Rights – Problem Question

Test for analyzing a s.35(1) Claim (Sparrow / Van der Peet/ Gladstone)
All the parts are from Sparrow, except Distinctive culture test set out in Van Der Peet.

1. Claimant must demonstrate that he was acting pursuant to a right protected by s.35. Two ways to prove this:
a. Treaty right (if obvious, no problem, if not right is not obvious- must do Van der Peet test to see if the right in
question falls under the treaty rights of the aboriginal person/ group).
i.Ex. Morris- Treaty rights to hunt- but what about hunting at night w/ an illuminating device? Had to do Van
der Peet to find out.
b. All other Aboriginal rights- do the Van der Peet test to see if they qualify
i.What kind of right? (then do Van der Peet)
1. Sustenance Right?
2. Trade for Necessaries Right?
3. Commercial Right
c. Van der Peet Test “Distinctive Culture”
i.Activity must be an element of practice, custom, or tradition integral to the distinctive culture of the
Aboriginal group claiming the right. There are a # of things to consider:
1. Aboriginal perspective
2. Precise Identification of the claim
3. Practice must be of central importance (to the group- Kitkatka- culturally modified trees)
4. Continuity from pre-contact times
5. Relaxed evidentiary rules
6. Claims adjudicated must be specific (case by case basis)
7. Independently Significant (not incidental to another practice)
8. Practice must be distinctive (but not necessarily unique)
9. Relation to European Influence
10. Relation to land
ii.Aboriginal rights, while they are attached to land, fall short of title to land.
2. Was the right in question “existing” at the time of the enactment of s.35(1) of the Constitution Act, 1982?
a. Not previously extinguished by government (must have expressed a plain and clear intention to do so)
b. Regulations cannot extinguish a right (Dickson & LaForest)
3. Has the right been infringed? Claimant must show, prima facie, that legislation in question places an adverse restriction on
the right. Court will examine things such as:
a. What are the characteristics or incidents of the right?
b. Is the limitation reasonable?
c. Does it impose undue hardship?
d. Does it deny holders their preferred means of exercising rights?
4. Justification of the interference: Can the government justify the interference? (Gladstone)
a. Is the legislative objective valid?(like s.1 test)
i.Pressing & Substantial objective directed at the reconciliation of the prior occupation of NA by
Aboriginal peoples w/assertion of Crown sovereignty (Gladstone)
1. those aimed at conserving & managing natural resources
2. those aimed at preventing harm to the general populace or to aboriginal peoples
3. “for the public interest” – too vague – will not work
4. the pursuit of economic and regional fairness (Lamer in Gladstone)
5. Recognition of the historical reliance, and participation in, the fishery by non-aboriginal groups
(Lamer in Gladstone)
b. Infringement must reflect the honour of the Crown (acting fairly)
c. Is the fiduciary relationship honoured? (acting in the best interests of the aboriginal peoples)
d. Crown must infringe Aboriginal rights as little as possible and ensure that the Aboriginals are adequately
compensated in the event of expropriation.
TEST FOR ABORIGINAL TITLE (DELGAMUUKW)
 Aboriginal title encompasses the right to exclusive use & occupation of land held pursuant to title for a variety of purposes,
which must not be irreconcilable w/ the nature of the group’s attachment to the land (i.e. if group’s attachment is by way of the
existence of Culturally Modified Trees, they could not justify clear-cutting them as a use of the their land)

1. Physical Occupancy
a. Land must have been occupied prior to British assertion of sovereignty in 1763.
2. Continuity
a. If present occupation relied on as proof of pre-sovereignty occupation, it must be sufficiently continuous.
3. Exclusive Occupancy
a. At sovereignty, occupation must have been exclusive (intention and capacity to assert control – i.e. did other grps
ask permission to use the land?)
Has Aboriginal Title been infringed? (Delgamuukw)
1. Aboriginal titles and rights are not absolute. Government infringements are justified if they are done:
a. In furtherance of a “pressing and substantial legislative objective
i.In theory, it must be aimed at reconciling prior aboriginal occupation with Crown sovereignty, by pursuing
objectives that are of compelling and substantial importance to the broader community as a whole, including
Aboriginal peoples.
b. Consistent w/ federal and provincial Crown’s special fiduciary obligations to Aboriginal peoples. What does
this relationship require?
i.Minimal impairment (as little infringement as possible)
ii.Fair compensation in the event of expropriation
iii.Consultation

Remedies
52(1) – Constitution is the supreme law of the country. Thus any ulta vires law is not valid.

Nuliification

Temporary Validity – Re Manitoba Language Rights 1985- justified by RoL and protecting civil liberties

Severance – upholding the entire statute but striking down the violating provision. Cf reading down, where the provision is valid, but
inapplicable where it impairs the federal law.
- Popular in Charter cases
o R v Hess 1990 – removed “whether or not he belives that she is 14 years of age or younger” from statutory rape.
o Tetrault-Gadoury 1995 – U.E.I under inclusive because it excluded over 65, struck down would prevent everyone
from UEI. Thus severed the violating words.
Reading in Words Schacter v Canada. Read in adoptive parents into UEI to provide same benefits as parents.

Reading Down – Que v C.O.P.A – apply the provision in a manner that does not offend with the Federal law, so that it applies in
allother circumstances, except where it frustrates the Federal law’s core competency.

s. 24(1) of the Charter

Court may apply the remedy it deems appropriate and just in the circumsances. Thus, non-exclussive. Only applies where a remedy at
law is not otherwise available. IT IS PERSONAL TO THE PERSON WITH STANDING.

- Damages: only when functionally required and it is for a Charter right violation by a police office or an official, not acting in
good faith. Damages cannot be claimed for ultra vires legislation Vancover v Ward