Class Notes All Lectures Combined

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Class Notes - All lectures combined.
Canadian Public and Constitutional Law (York University)
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CLASS 1:
 Part 1
 Sources of Constitutional Law in Canada
 Constitutional Law
 What is “Constitutional Law”?
 Law prescribing the exercise of power by the organs of the state
 Legislative branch (makes laws)
 Executive branch (implements laws)
 Judicial branch (adjudicates disputes)
 The Rule of Law
 “Constitutionalism”
 A government is limited by law
 Why is this important?
 What does it mean in practice?
 Entrenchment
 Remedies must be available when governments act outside the law
 Independence of judiciary, lawyers
 Civil liberties guaranteed by the constitution must be respected by governments
 Constitutional interpretation (Originalism? Living tree?) becomes important
 Sources of Constitutional Law in Canada
 There is not one single constitutional document in Canada which can be described as
“the Constitution”
 Instead, there are two central statutes:
 Constitution Act, 1867 (formerly known as the British North America Act, 1867 or
“BNA Act”)
 Constitution Act, 1982
 Constitution Act, 1867
 Originally called the British North America Act, 1867 (“BNA Act”), which created the new
Dominion of Canada and established the rules of federalism, allocating power between
central institutions and provincial institutions
 The new Dominion was still a British colony but with a considerable degree of self-
government
 Gaps in the Constitution Act, 1867
 No general amending clause
 This meant that amendments came from Britain
 Office of Governor General
 The Act confers powers on a “Governor General” but the office of
Governor General is not created by the Act
 The office of Governor General is still constituted by royal prerogative
and not through the Act
 System of responsible (cabinet) government is not included in the Act
 Ie no mention of the “Prime Minister”
 No creation of a Supreme Court

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 The Act gave authority for a supreme court to be established but did not
actually establish it
 Judicial Committee of the Privy Council in England remained final
appellate authority for British North America
 No Bill of Rights
 1982: Patriation of the Constitution
Canada asks for and receives full sovereignty from the United Kingdom…
 Canada Act, 1982
 Canada Act, 1982 = a short statute of the UK parliament which terminated the UK
Parliament’s authority over Canada
 Preamble: “Whereas Canada has requested and consented to the enactment of an Act
of the Parliament of the United Kingdom to give effect to the provisions hereinafter set
forth and the Senate and the House of Commons of Canada in Parliament assembled
have submitted an address to Her Majesty requesting that Her Majesty may graciously
be pleased to cause a Bill to be laid before the Parliament of the United Kingdom for
that purpose…”
 Schedule B of the Canada Act, 1982 was the Constitution Act, 1982 (which contains the
Canadian Charter of Rights and Freedoms, the amending formula, etc.)
 Neither the Canada Act, 1982 nor the Constitution Act, 1982 purport to be a codification
or even a consolidation of Canada’s constitutional law
 The Constitution Act, 1982 did two things:
1. Change the name of the BNA Act to the Constitution Act, 1867
2. Attempted to define the phrase “Constitution of Canada”
 Primacy of the Constitution of Canada
 The primacy of the Constitution of Canada is set out in s. 52(1) of the Constitution Act,
1982
1. s. 52(1) The Constitution of Canada is the supreme law of Canada, and any law
that is inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.
If the Constitution of Canada has primacy over other statues, it needs to be defined…
 “Constitution of Canada”
 The phrase “Constitution of Canada” is defined in s. 52(2) of the Constitution Act, 1982
as follows:
 s. 52(2) The Constitution of Canada includes
(a) the Canada Act, 1982, including this Act;
(b) the Acts and orders referred to in the schedule; and
(c) any amendment to any Act or order referred to in paragraph (a) or (b).
 Statutes included in the Constitution of Canada
Examples of the Acts and Orders referred to in the schedule to the Constitution Act, 1982 per s.
52(2)(b):
 Constitution Act, 1867 (U.K.) – formerly the BNA Act
 Manitoba Act, 1870 (Can.)
 Constitution Act, 1871 (U.K.)

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 Imperial Orders in Council admitting British Columbia into the Union, May 16, 1871 and
Prince Edward Island into the Union, June 26, 1873
 Saskatchewan Act, 1905 (Can.)
 Statute of Westminster, 1931 (U.K.)
 Newfoundland Act, 1949 (U.K.)
Note that many instruments of importance are missing: Hogg p. 1-10 – 1.12.2
 What about the Supreme Court of Canada Act?
 “Constitution of Canada” includes… parliamentary privilege
 The Constitution of Canada “includes”... = not exhaustive
 The Constitution of Canada also includes:
 Parliamentary Privilege
 The federal Houses of Parliament and the provincial legislative assemblies
possess a set of powers and privileges that are necessary to their capacity
to function as legislative bodies
 Unwritten doctrine - so where does it come from?
 New Brunswick Broadcasting v. Nova Scotia (1993)
 Canada v. Vaid (2005)
 Do you agree with the Supreme Court that parliamentary privilege should be
part of the Constitution?
 “Constitution of Canada” includes… case law
Case Law
 Courts have the task of interpreting the Constitution Acts and other
constitutional statutes
 The case law that interprets that Constitution Acts and other constitutional
statutes is also constitutional law
 The Supreme Court finds “unwritten” principles that “underlie” the
constitutional texts; for example:
 Re Remuneration of Judges (1997) – the Supreme Court found an unwritten
principle of judicial independence in the Constitution of Canada that could have
the effect of invalidating statutes that reduced judges salaries
 Secession Reference (1998) – the Supreme Court invoked unwritten principles of
democracy, federalism, constitutionalism and the protection of minorities to
hold that, if a province were to decide in a referendum that it wanted to secede
from Canada, the federal government and the other provinces would come
under a legal duty to enter into negotiations to accomplish the secession
 The Constitution of Canada includes… royal prerogative
 Royal Prerogative
 The royal prerogative consists of the powers and privileges accorded by the
common law to the Crown that are unique to the Crown
 Only applies to executive governmental powers (so no prerogative power to
legislate, which can only be done by the legislature; and no prerogative power to
administer justice, which can only be done by the courts)

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 Prerogative powers can be abolished or limited by statute and they are subject
to review by the courts
 Some examples remain i.e. the declaring of war and the making of treaties
 Note that most governmental power in Canada is exercised under statutory
power (not prerogative power)
 The Constitution of Canada includes… conventions
 Conventions are the rules of the constitution that are not enforced by the courts
 Conventions prescribe the way in which legal powers shall be exercised
 Example: the Constitution Act, 1867 confers upon the Queen the power to withhold
royal assent from a bill that has been enacted by the two Houses of Parliament but a
convention stipulates that the royal assent shall never be withheld (an aspect of
“responsible government”)
 If a convention is breached, there is no breach of the law (because conventions are not
enforced by the courts) and no remedy is available
 See Patriation Reference (1981) – court recognized a convention
 Why do governments obey conventions if not enforceable? What happens if
conventions start to be ignored?
 Part 2
 Amending Procedures
 Amending Procedures
 The BNA Act had no amending provisions – why?
 This persisted until 1982; even the Statute of Westminster which conferred on Canada
the power to repeal or amend imperial statutes applying to Canada excluded the BNA
Act (because the BNA Act was a constitutional document which should be more difficult
to amend than a regular statute)
 Statute of Westminster and Imperial Conference of 1930 led to a constitutional
convention: UK could not enact amendments to the BNA Act except at the request and
with the consent of Canada
 Canada Act, 1982 formally terminated the UK Parliament’s authority over Canada and
Part V of the Constitution Act, 1982 constitute a complete code of legal rules which
allow all parts of the “Constitution of Canada” to be amended (recall the Patriation
Reference (1981) – the consent of the provinces to the proposed amendments was not
required as a matter of law but a “substantial degree” of provincial consent was
required as a matter of “convention” – in the end, all provinces except Quebec agreed
to the Canada Act, 1982, which included the Constitution Act, 1982 as Sched. B)
 Amending Procedures Under Part V of the Constitution Act, 1982
 There are five different amending procedures set out in Part V of the Constitution Act,
1982:
1. General amending procedure (s. 38) for amendments not otherwise provided for (as
well as amendments listed in s. 42) requiring the assents of the federal Parliament and
two thirds of the provinces representing 50 per cent of the population
2. Unanimity procedure (s. 41) for five defined kinds of amendments, requiring the
assents of the federal Parliament and all of the provinces
 Amending Procedures Under Part V of the Constitution Act, 1982

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3. Some-but-not-all-provinces procedure (s. 43) for amendment of provisions not applying

to all provinces, requiring the assent of the federal Parliament and only those provinces
affected
4. Federal Parliament alone (s. 44) has power to amend provisions relating to the federal
executive and Houses of Parliament
5. Each provincial Legislature alone (s. 45) has power to amend the “constitution of the
province”
Note: the amending procedures only apply to the “Constitution of Canada” as defined in s.
52(2) of the Constitution Act, 1982
 s. 38 General Amending Procedure
s. 38(1) An amendment to the Constitution of Canada may be made by proclamation issued by
the Governor General under the Great Seal of Canada where so authorized by:
a) Resolutions of the Senate and House of Commons; and
b) Resolutions of the legislative assemblies of at least two-thirds of the provinces that
have, in the aggregate, according to the then latest general consensus, at least fifty per
cent of the population of all the provinces.
 s. 38 General Amending Procedure, continued
 The “7/50 Formula”
 The two-thirds requirement means that at least 7/10 provinces must agree to an
amendment and 7 provinces would inevitably include at least one of the four Atlantic
provinces and at least one of the four western provinces
 The 50 per cent population requirement means that the agreeing provinces must
include at least one of Ontario or Quebec
 No single province has a constitutionally-entrenched veto over amendments
 Once authority for the amendment is provided, the formal act of amendment is
accomplished by proclamation by the Governor General
 s. 38 General Amending Procedure – opt out
 s. 38(3) – opting out
 Opting out is permitted in respect of any amendment “that derogates from the
legislative powers, the propriety rights or any other rights or privileges of the legislature
or government of a province”
 The legislative assembly of the province can pass a resolution of dissent and then the
amendment “shall not have effect” in that province
 The resolution of dissent must be passed prior to the issue of the proclamation to which
the amendment relates (but it can be revoked at any time)
 S. 40 provides compensation for opting out re education and cultural matters
 General Amending Procedure applies to s. 42
 The general amending procedure in s. 38 (the “7/50 Formula”) applies to any
amendments not covered by more specific procedures in ss. 41, 43, 44 and 45.
 S. 42(1) requires that the general amending procedure also be used to six defined
classes of amendments to the Constitution of Canada:
a) The principle of proportionate representation of the provinces in the House of
Commons prescribed by the Constitution of Canada;
b) The powers of the Senate and the methods for selecting Senators;

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c) The number of members by which a province is entitled to be represented in the

Senate and the residence qualifications of Senators;
d) Subject to paragraph 41(d), the Supreme Court of Canada;
e) The extension of existing provinces into the territories; and
f) Notwithstanding any other law or practice, the establishment of new provinces.
 S. 42(2) provides that ss. 38(2) and (4) do not apply in respect of amendments in relation
to matters referred to in subsection (1) [i.e. no opt-out].
 s. 41 Unanimity Procedure
s. 41 An amendment to the Constitution of Canada in relation to the following matters may be
made by proclamation issued by the Governor General under the Great Seal of Canada only
where authorized by resolutions of the Senate and House of Commons and of the legislative
assembly of each province:
a) The office of the Queen, the Governor General and the Lieutenant Governor of a
province;
b) The right of a province to a number of members in the House of Commons not less than
the number of Senators by which the province is entitled to be represented at the time
this Part comes into force [known as the “Senate floor”];
c) Subject to section 43, the use of the English or French language;
d) The composition of the Supreme Court of Canada; and
e) An amendment to this Part.
 s. 41 Unanimity procedure, continued
 Supreme Court Reference (2014)
 Paragraph 41(d) entrenches the composition of the Supreme Court of Canada
 In 2013 Parliament passed an amendment to the Supreme Court Act purporting to add a
new section to the Act making former members of the bar of Quebec eligible for
appointment to the SCC
 The Court found the new section unconstitutional in that the provisions of the Supreme
Court Act dealing with the composition of the Court could only be amended through the
unanimity procedure
 Amendments dealing with “other essential features” of the Court could only be changed
under the general procedure (“7/50”) in s. 42(1)(d)
 Senate Reform Reference (2014)
 Issue: is unanimity required to abolish the Senate or just the 7/50 Formula?
 s. 43 Some-but-not-all-provinces procedure
s. 43 An amendment to the Constitution of Canada in relation to any provision that applies to
one or more, but not all, provinces, including
a) Any alteration to boundaries between provinces, and
b) Any amendment to any provision that relates to the use of the English or the French
language within a province,
may be made by proclamation issued by the Governor General under the Great Seal of Canada
only where so authorized by resolutions of the Senate and House of Commons and of the
legislative assembly of each province to which the amendment applies.
 s. 44 Federal Parliament alone

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s. 44 Subject to sections 41 and 42, Parliament may exclusively make laws amending the
Constitution of Canada in relation to the executive government of Canada or the Senate and
House of Commons.
Recall the Senate Reform Reference (2014) – another issue was whether Parliament had the
power to impose term limits on the tenure of Senators
 s. 44 should govern unless trumped by ss. 41 or 42
 s. 41 (unanimity) does not refer to the Senate and s. 42 (7/50 Formula) refers to the
powers of the Senate; the method of selecting Senators; provincial representation in the
Senate; and residence qualifications of Senators – but does not reference term limits
 Peter Hogg thinks Parliament should have power to impose term limits on Senators
based on s. 44 but the SCC disagreed
 The SCC found that any reduction in the independence of the Senate would engage the
interests of the provinces – and the SCC found that, in addition to matters expressly
excluded from s. 44, any other changes that engage the interests of the provinces are
impliedly excluded from s. 44
 So the scope of s. 44 will be narrow
 s. 45 Provincial Legislature alone
s. 45 Subject to s. 41, the legislature of each province may exclusively make laws amending the
constitution of the province.
 Note that the “constitution of the province” is not defined anywhere in the Constitution
Act, 1982
 SCC says it is where the law bears on the operation of an organ of government of the
province
 Secession
Issue: does the federal constitution give the power of secession to its provinces or states?
Secession Reference (1998) – a reference by the federal government to the SCC in which the
SCC was asked whether Quebec could secede unilaterally from Canada
1. Unilateral secession not permitted under the Constitution of Canada; and
2. Unilateral secession not permitted under international law.
 A government, even one mandated by a popular majority in a referendum, must still
obey the rules of the Constitution
 Secession would require an amendment to the Constitution of Canada (SCC did not say
which amending procedure but that the federal government and provinces would need
to be involved); so negotiation would be required, not unilateral action
 Secession, continued
 The SCC went further in the Secession Reference (1998) and said that a referendum in
Quebec that yielded a clear majority on a clear question in favour of secession, while
ineffective in itself to accomplish secession, “would confer legitimacy on demands for
secession” and “would give rise to a reciprocal obligation on all parties to Confederation
to negotiate constitutional changes to respond to that desire” (para. 88).
 This was a new idea in Canadian constitutional law, and the SCC said it arose out of
ideas of “democracy”, “federalism”, “constitutionalism and the rule of law” and “the
protection of minorities” = fundamental unwritten constitutional principles (so a
constitutional obligation to negotiate, and negotiate in good faith?)

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 Parliament passed the Clarity Act, 2000 – need a “clear question” as determined by the
House of Commons and then a “clear majority” (not defined), also as determined by
House of Commons
 Secession by Amendment
 The SCC affirmed in the Secession Reference (1998) that the secession of a province
could be accomplished by amendment to the Constitution of Canada
 However, it is not clear which of the five amending procedures is correct
 For sure not s. 45 (province alone ie unilateral), because secession would not simply be
an amendment to the “constitution of a province”
 Also not s. 44 (federal Parliament alone) or s. 43 (some-but-not-all-provinces)
 So either s. 38 (7/50 Formula) or s. 41 (unanimity)
 Part 3
 Federalism
 Federalism
 What is a “federal state”?
 Governmental power is divided between a central (or national or federal) authority and
several regional (or provincial or state) authorities, so that every individual in the state is
subject to the laws of the two authorities, the central authority and regional authority
 Neither authority is subordinate to the other (“coordinate” = equal in status); also
“autonomous”
 That being said, it is common to speak of two “levels” of government because the
central authority extends throughout the country (so “higher”) while the regional
authority is confined to its region
 Federal law prevails in the event of inconsistency
 Subsidiarity
 “Subsidiarity” = a principle of social organization that prescribes that decisions affecting
individuals should, as far as reasonably possible, be made by the level of government
closest to the individual affected
 In Canada, one of the primary goals of confederation in 1867 was to preserve a
considerable degree of autonomy for the four original provinces (esp Quebec); the BNA
Act accordingly invested the provincial Legislatures with authority over matters such as
property and civil rights, the courts and the police, municipal institutions, hospitals and
education.
 The BNA Act invested the federal Parliament with authority over customs and excise,
trade and commerce, banking and currency, taxation, national defence (all to the
collective benefit of the uniting provinces)
 What are some benefits of federalism?
 Federalism in Canada
 Two levels of independent, autonomous government – federal and provincial
 Each with exclusive powers
 Federal and provincial governments cannot unilaterally expand their powers because
they are entrenched in the Constitution
 The BNA Act gave the provinces only enumerated powers to make laws, giving the
residue of power to the federal Parliament

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 A centralized system of government

 In violation of the principle that in a federal state, the regions should be coordinate with
the centre – How?...
 Centralizing features in the Constitution Act, 1867, making provinces subordinate to the
central government, including:
 Disallowance (s. 90) – federal gov could disallow provincial statutes
 Appointment of Lieutenant Governors (s. 58) – federal gov has the power to apt
the Lieutenant Governors of each province
 Appointment of judges (s. 96) – Federal gov has the power to appoint judges of
the superior, district and county courts of each province
 Educational appeals (s. 93)
 Declaratory power (s. 92(10(c)) – federal gov could bring local works within
federal legislative jurisdiction by declaring them to be “for the general advantage
of Canada”
 However, most of these elements have been rendered illegitimate by the development
of case law, convention and practice, such that the elements of provincial subordination
in the Constitution have been virtually eliminated – see Hogg pp. 5-15 to 5-22
 Role of the Courts
 Issue: disputes arise as to whether or not a particular legislative body has the power to
enact a particular statute so there needs to be a system for settling disputes
 The Constitution of Canada does not expressly provide a machinery for settling such
disputes
 Current basis of judicial review in Canada is s. 52(1) of the Constitution Act, 1982, which
stipulates that the Constitution of Canada is “the supreme law of Canada” and that “any
law that is inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect”
 The Constitution Act, 1982 also broadened the scope of judicial review by adding a
Charter of Rights to the Constitution of Canada
 The courts are the only body with the power to decide disputes as to the distribution of
legislative power
 But note that there is policy-making inevitably involved (and judges are unelected) –
What do you think?
 What are some possible alternatives to judicial review?
 Part 4
 Judicial Review & Principles of Constitutional Interpretation
 Judicial Review and Principles of Constitutional Interpretation
 Judicial review of legislation is the power to determine whether any particular law is
valid or invalid
 Two main grounds of judicial review:
1. Federal / Distribution-of-powers grounds
 Law is valid (intra vires) if the court find that the law was enacted within the
powers allocated by the Constitution to whichever legislative body enacted the
law

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 Law is invalid (ultra vires) if the court finds that the law was enacted outside the
powers allocated to the enacting body
2. Charter grounds (to be discussed in a later class)
 Procedure of Judicial Review on Federal Grounds
 ss. 91 and 92 of the Constitution Act, 1867 set out the distribution of legislative power
between the federal Parliament and the provincial Legislatures; in particular, legislative
authority arises in relation to “matters” coming within “classes of subjects”
 Section 91 lists the kinds of laws that are competent to the federal Parliament
 Section 92 lists the kinds of laws that are competent to the provincial
Legislatures
 Sections 91 & 92 Examples
 Judicial Review Steps
1. Identify the “matter” of the challenged law
 In other words, the law in question needs to be characterized
 What is the “pith and substance” of the law?
2. Based on the law’s “matter”, determine which level of government (federal or
provincial) has legislative power over it by looking at ss. 91 and 92
 Pith and Substance
 Step one: Identify the “matter” of the challenged law
 Ask the question: What is the “pith and substance” of the law?
 Need to identify the dominant feature / most important characteristic of the law
 Characterizing the law is not a formal, technical exercise
 Look at the effects of the law i.e. how a statute changes the rights and liabilities
of those who are subject to it
 The court will also look beyond the direct legal effects to inquire into the social
or economic purposes which the statute was enacted to achieve (see R. v. Big M
Drug Mart (1985) and R. v. Edward Books and Art (1996))
 Note that the court is not meant to look at efficacy of the law
 Pith and Substance –
Incidental Effects Doctrine
 Problems arise where one feature of a law comes within a provincial head of power and
another feature comes within a federal head of power
 Bank of Toronto v. Lambe (1887) - a provincial statute that imposes a
direct tax on banks – need to look at what is the most important feature;
direct taxation = provincial but banking = federal; dominant feature was
to raise revenue so the “matter” of the law was taxation, not banking (so
within provincial jurisdiction)
 Alberta Bank Taxation Reference (1938) – Alberta law imposed a special
tax solely on banks; the pith and substance was to discourage the
operation of banks in Alberta so the matter was “banking” and the taxing
quality of the law was incidental (so the matter was within federal
jurisdiction and so the province could not enact the law and it was struck
down)
 Incidental Effects Doctrine

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 the “pith and substance” doctrine enables one level of

government to enact laws with a substantial impact on matters
outside its jurisdiction; the law is “in relation to” a matter but can
“affect” other matters
 Note that “singling out” a person or class of persons is not
conclusive of pith and substance (see Hogg p. 15-11)
 Pith and Substance, continued
 Quebec v. Lacombe (2010) – municipal by-law in Quebec prohibited the use of lakes as
aerodromes; land use zoning = provincial (provinces usually delegate to municipalities)
but aeronautics = federal; the court found that the pith and substance of the law was
aeronautics, not zoning, and so the bylaw was struck down because it was outside (ultra
vires) provincial competence
 Quebec v. Canadian Owners and Pilots Association (2010) – a provincial law prohibited
non-agricultural uses of land zoned by the province as an “agricultural zone”; here,
Court found it was a valid provincial law because it was in relation to land use or
agriculture; but the incidental effect was that the provincial law could not impair the
essential core of the federal power over aeronautics so could the provincial law could
not apply to the use of land for the landing or taking off of aircraft; so the law was
mostly valid, but not for aircraft - Note: this was due to the doctrine of interjurisdictional
immunity (An exception to the general rule that a valid law can have effects on matters
within the jurisdiction of the other level of government (to be discussed later today…))
Double Aspect Doctrine
 The “double aspect” doctrine
 Subjects in which one aspect and for one purpose fall within s. 92 may in another
aspect and for another purpose fall within s. 91
 The double aspect doctrine acknowledges that some kinds of laws have both a
federal and a provincial “matter” and there therefore competent to both the
federal Parliament and the provinces
 So when will a court allow the double aspect doctrine and when will the court
find it necessary to make a choice between the federal and provincial features of
a challenged law?
Colourability
 The “colourability” doctrine is invoked when a statute bears the formal trappings of a
matter within jurisdiction, but in reality is addressed to a matter outside jurisdiction
 A legislature cannot do indirectly what it is not permitted to do directly
 Alberta Bank Taxation Reference (1938) – the legislation was ostensibly designed
as a taxation measure but was in reality directed at banking (special tax solely on
banks)
 R. v. Morgentaler (No. 3) (1993) – the court struck down a Nova Scotia statute
that required “designated” medical procedures (of which one was abortion) to
be performed in a hospital – this was a provincial attempt to restrict access to
abortion and were really invalid criminal laws (not health)

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 Pith and Substance – Presumption of Constitutionality

 The “presumption of constitutionality” means that the burden of demonstration lie
upon those who would challenge the validity of a statute which has emerged from the
democratic process
 Three legal consequences:
 In choosing between competing, plausible characterizations of the law, the court
should normally choose that one that would support the validity of the law
 Where the validity of a law requires a finding of fact, that finding of fact need not
be strictly proved by the government; it is enough that there is a rational basis
for the finding
 Where a law is open to both a narrow and a wide interpretation, and under the
wide interpretation the law’s application would be ultra vires, the court should
“read down” the law so as to confine it to those applications that are within the
power of the enacting legislative body
 Severance
 Issue: can a court “sever” the bad part of a statute, thereby preserving the good part, or
should the court declare the entire statute to be bad (invalid)?
 Severance is a remedy where only one part of a statute is invalid and the balance of the
statute would be valid if it stood alone
 Severance is inappropriate where the remaining good part is so inextricably bound up
with the part declared invalid that what remains cannot independently survive; in that
event, it may be assumed that the legislative body would not have enacted the
remaining part by itself
 Is severance rare or common?
 Reading Down
 The “reading down” doctrine requires that, wherever possible, a statute is to be
interpreted as being within the power of the enacting legislative body
 Reading down is all about interpretation
 Appears to depend on a presumption of constitutionality
 Effect is to constrain the role of the courts
 Interjurisdictional Immunity
 A law that purports to apply to a matter outside the jurisdiction of the enacting
legislative body may be attacked in three different ways; the attack may go to:
1. The validity of the law (where the matter or “pith and substance” is outside the
jurisdiction);
2. The applicability of the law (where the law is valid in most of its applications, but can be
interpreted so as not to apply to the matter that is outside the jurisdiction – this means
that the law is inapplicable to the extra-jurisdictional matter, such as by reading down,
and this is known as interjurisdictional immunity);
3. The operability of the law (where the law that applies to a matter outside the
jurisdiction of the enacting body is inoperative through the doctrine of paramountcy
(stay tuned))
 Interjurisdictional Immunity, continued

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 Issue: when it is appropriate to read down a law so that it should be interpreted so as

not to apply to a matter that it outside the jurisdiction of the enacting body?
 “Vital part” test – a provincial law may not impair the basic, minimum and unassailable
content (the core) of a federal legislative power or a vital or essential part of a federal
undertaking
 Interjurisdictional Immunity, continued
 Canadian Western Bank v. Alberta (2007) – the Court held that interjurisdictional
immunity would apply only if a “core competence” of Parliament or a “vital or essential
part of an undertaking it duly constitutes” would be impaired by a provincial law; if the
core competence or vital part would merely be affected (without any adverse
consequences) by a provincial law, no immunity applied
 Issue in Canadian Western Bank v. Alberta was whether Alberta’s Insurance Act could
constitutionally apply to banks (Act required banks to obtain a licence from the province
to promote insurance to its customers); Court held that the Act could validly apply to
the banks when they promoted insurance because the promotion of insurance by banks
was too far removed from the core of banking to qualify as a vital part of the banking
undertaking
 In this way, the application of the interjurisdictional immunity doctrine was restricted by
the Court
 See also Quebec v. Canadian Owners and Pilots Association (2010) – provincial law
which designated areas of the province agricultural zones from which all non-
agricultural uses were prohibited; the provincial law was inapplicable to the extent that
it prohibits aerodromes in agricultural zones because the location of aerodromes was
essential to the federal power over aeronautics and was therefore within the core of the
power – i.e. doctrine of interjurisdictional immunity applied because there was an
“impairment”
 Pith and substance or interjurisdictional immunity?
 Pith and substance doctrine stipulates that a law in relation to a provincial matter may
validly affect a federal matter
 Interjurisdictional immunity doctrine, by contrast, reads down the provincial law to
exclude the federal matter
 Pith and substance doctrine is applied more frequently; but which one to apply?
 Rule: if the provincial law would impair the basic, minimum and unassailable core of the
federal subject, then the interjurisidictional immunity doctrine stipulated that the
provincial law must be restricted in its application (read down) to exclude the federal
subject
 If, on the other hand, the provincial law did not impair the core of the federal subject,
then the pith and substance doctrine stipulated that the provincial law validly applied to
the federal subject
 Issue: Is the interjurisidictional immunity doctrine reciprocal?
 Recall Judicial Review steps…
1. Identify the “matter” of the challenged law
 In other words, the law in question needs to be characterized
 What is the “pith and substance” of the law?

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2. Based on the law’s “matter”, determine which level of government (federal or

provincial) has legislative power over it by looking at ss. 91 and 92
We have examined step one so now let’s examine step two…
 Interpretation of the Constitution
 Once the matter (or pith and substance) of a challenged law has been identified, the
second stage in judicial review is to assign the matter to one of the “classes of subjects”
(or heads of legislative power) specified in the Constitution in ss. 91 and 92; a few
principles at work:
 Exclusiveness – each of the classes of subjects in ss. 91 and 92 is exclusive to the
Parliament or Legislature to which it is assigned; despite appearances, there is no
overlap (or is there?... See below re “concurrency” and recall the “double
aspect” doctrine and the “incidental effects” doctrine)
 Ancillary power – no such power in Canada, which is a power to make all laws
necessary and proper for carrying out all other powers (such as in the USA)
 Concurrency – there are three provisions that confer concurrent powers: those
dealing with natural resources, old age pensions and agriculture and immigration
 Exhaustiveness – all powers are distributed
 Progressive interpretation – general language describing classes of subjects (or
heads of power) is not frozen in time in 1867; constitution as a “living tree”
 Unwritten constitutional principles – i.e. democracy, constitutionalism, the rule
of law, the independence of the judiciary, the protection of civil liberties
 Part 5
 Paramountcy
 Paramountcy
 Issue: what happens when a valid provincial law conflicts with a valid federal law?
 Recall: double aspect, pith and substance (incidental effect), which allow that
sometimes federal and provincial laws can overlap; but what happens when the
laws actually conflict (are inconsistent)?
 Doctrine of federal paramountcy: where there are inconsistent (or conflicting) federal
and provincial laws, it is the federal law which prevails.
 The doctrine of federal paramountcy applies when there is a federal law and a provincial
law which are:
 Each valid, and
 Inconsistent.
 Paramountcy –
Express Contradiction
Express contradiction
 When one law expressly contradicts another (i.e. it is impossible for a person to
obey both laws because compliance with one law involves the breach of
another); or
 Where a provincial law would frustrate the purpose of a federal law.
Important note: only “express contradiction” suffices to invoke the paramountcy doctrine; a
provincial law that supplements or duplicates a federal law is not deemed to be inconsistent
with the federal law.

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 Paramountcy –
Express Contradiction
Examples of cases where there is an impossibility of dual compliance (see Hogg pp. 16-4 to 16-
10.1):
 Multiple Access v. McCutcheon (1982) – insider-trading provisions of provincial securities
law were not in conflict with insider-trading provisions of federal corporate law because
they did not conflict; rather, they provided the same remedy for the same conduct and
so were in harmony, so no conflict despite the duplication. Paramountcy doctrine did
not apply.
 Marine Services International v. Ryan Estate (2013) – presumption of constitutionality =
where it is possible to interpret either the federal law or the provincial law so as to
avoid the conflict that would trigger paramountcy, then that interpretation should be
preferred.
 Paramountcy Trilogy 2015 – Alberta v. Molony; 407 ETR Concession Co. v. Canada;
Saskatchewan v. Lemare Lake Logging
 Paramountcy –
Frustration of Federal Purpose
Examples of inconsistency cases where a provincial law would frustrate the purpose of a federal
law
 Law Society of B.C. v. Mangat (2001) – federal Immigration Act allowed a party to be
represented by a non-lawyer before the Immigration and Refugee Board; but B.C.’s
Legal Profession Act provided that non-lawyers were prohibited from practising law and
appearing before a federal administrative tribunal; not an express conflict because a
party could obey provincial law and hire a lawyer; but the Court found that the purpose
of the federal law was to establish an informal, accessible and speedy process and that
purpose would be defeated if only lawyers allowed to appear
 See also Rothmans, Benson & Hedges v. Saskatchewan (2005)
 Paramountcy –
Negative Implication
 Recall that only “express contradiction” (including express contradiction and frustration
of federal purpose) suffices to invoke the paramountcy doctrine
 What are some cases that do not attract the doctrine of paramountcy?
 Negative implication (aka “covering the field”) – mere fact that Parliament has
enacted legislation regarding a subject does not mean it intended to “cover the
field” to rule out provincial legislation (absent “very clear statutory language to
that effect”)– recall Multiple Access v. McCutcheon (1982) where the
paramountcy doctrine did not apply to insider-trading regime
 Paramountcy –
Overlap and Duplication
 What are some other cases that do not attract the doctrine of paramountcy?
 Overlap and duplication of subject matter – this is just fine and not a test of
paramountcy; rather, it is the “ultimate in harmony” (see Hogg p. 16-16); this
includes double criminal and civil liability

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 Again, recall Multiple Access v. McCutcheon (1982) – provisions of Ontario

securities law relating to insider trading were not rendered inoperative by the
substantially identical provisions of federal corporate law
 Paramountcy –
Effect of Inconsistency
 Effect of paramountcy:
 Provincial law must yield to the federal law
 Specifically, the provincial law is “rendered inoperative to the extent of the
inconsistency”
 The doctrine of paramountcy does not affect the operation of those parts of the
provincial law which are not inconsistent with the federal law (unless the parts
are inseparably linked)
 If the federal law is repealed, the provincial law will automatically “revive”
 Note: the doctrine of paramountcy does not serve to “repeal” the provincial law,
because the federal Parliament does not have the power to repeal a provincial
law
 Note also: the doctrine of paramountcy does not serve to render the provincial
law ultra vires, invalid or unconstitutional (as this would confuse consistency
with validity)
 Therefore, the provincial law is “rendered inoperative”
 Application of Federalism Analysis
Canadian Western Bank v. Alberta (2007) – Alberta enacted changes to its Insurance Act to
make federally-chartered banks subject to a provincial licensing scheme governing the
promotion of insurance products; the Act required a “deposit-taking institution” (ie banks along
with provincially-regulated trust companies) to obtain a licence from the province in order to
promote insurance to its customers.
1. Pith and Substance - is it banking (federal)? or insurance (provincial)?
 Pith and substance is insurance and the fact that the banks now participate in
the promotion of insurance does not change the essential nature of the
insurance activity, which falls under provincial jurisdiction
 Application of Federalism Analysis, continued
2. Interjurisdictional immunity – should the law be read down so as not to apply to the
federal banks? this doctrine applies where the core competence or a vital or essential
part of federal power would be impaired by a provincial law
 Is the bank engaging in an activity that is vital to banking in promoting
insurance?
 No, because insurance is not at the core of federal banking power
 This meant that the doctrine of interjurisdictional immunity did not apply
 Application of Federalism Analysis, continued
3. Paramountcy – is there an express contradiction or frustration of purpose between the
federal and provincial laws such that the doctrine of paramountcy should apply?
 No operational incompatibility
 No frustration of federal purpose
 Doctrine of paramountcy did not apply

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 See paras. 79-109 of Canadian Western Bank v. Alberta
CLASS 2:
 Part 6
 Peace, Order and
 Good Government
 Peace, Order and Good Government
 The opening words of s. 91 of the Constitution Act, 1867 confer on the federal
Parliament the power:
 “to make laws for the peace, order and good government of Canada, in
relation to all matters not coming within the classes of subjects of this Act
assigned exclusively to the Legislatures of the provinces…”
 Known as the POGG power
 POGG Power
 Residual power, because it is expressly confined to “matters not coming within the
classes of subjects by this Act assigned exclusively to the Legislatures of the provinces”
 So any matter which does not come within a provincial head of power must be within
the power of the federal Parliament
 Can be read in conjunction with s. 92(13) (“property and civil rights in the province”)
and s. 92(16) of the Constitution Act, 1867 (which provides that the provinces have
jurisdiction over “generally all matters of a merely local or private nature in the
province”) – looks a little bit like a kind of residual power for the provinces too?
 In any event, the distribution of legislative power was meant to be exhaustive (with a
few exceptions)
 POGG Power continued
 There are three branches of legislative power arising out of the POGG power:
 The “gap” branch
 The “national concern” branch
 The “emergency” branch
 POGG Power –
The “gap” branch
 The POGG power is meant to fill gaps in the scheme of distribution of powers
 Rarely invoked, because often a “new” or hitherto unrecognized kind of law will come
within an existing category, such as property and civil rights in the province (s. 92(13)) or
matter of a merely local or private nature in the province (s. 92(16))
 Which head of power is appropriate depends on the nature of the “new” matter and the
scope which is attributed to the various competing heads of power (of which POGG is
only one)

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 POGG Power-
The “gap” branch examples
 The Constitution Act, 1867 empowers the provincial Legislatures to make laws in
relation to the “incorporation of companies with provincial objects” (s. 92(11)), but
there is no equivalent enumerated federal power of incorporation so the courts have
held that the power to incorporate companies with objects other than provincial must
fall within the federal POGG power
 Treaty powers
 Official Languages Act
 POGG Power –
The “national concern” branch
 Encompasses the idea that some matters of legislation, which originate as local or
provincial, can acquire “national concern” and thereby come within the federal
Parliament’s POGG power
 A-G Ont. V. Canada Temperance Federation (1946) – if the real subject matter of the
legislation “goes beyond local or provincial concern or interests and must from its
inherent nature be of concern to the Dominion as a whole, then it will fall within the
competence of the Dominion Parliament as a matter affecting the peace, order and
good government of Canada, although it may in another aspect touch on matters
specifically reserved to the provincial legislatures…”
 this is different from the “emergency” branch, to be discussed later
 POGG Power –
The “national concern” branch examples
 Temperance (A-G Ont. V. Canada Temperance Federation (1946))
 Development, conservation and improvement of the National Capital Region, an area
around Ottawa that had been designated by federal legislation (Munro v. National
Capital Commission (1966))
 Marine pollution (R. v. Crown Zellerbach (1988))
 Atomic energy (Ontario Hydro v. Ontario (1993))
 POGG Power-
The “national concern” branch, continued
 Issue: when does a subject matter of legislation become “the concern of the Dominion
as a whole” so as to satisfy the national concern test?
 A matter of national concern
 The “provincial inability test” – when the problem is beyond the power of the provinces
to deal with it
 In other words, the need for one national law which cannot realistically be satisfied by
cooperative provincial action because the failure of one province to cooperate would
carry with it adverse consequences for the residents of other provinces
 POGG Power-
The “national concern” branch, continued
 Distinctness
 In order to qualify as a matter coming within the national concern branch of the POGG
power, a topic must be distinct: “it must have a singleness, distinctiveness and

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indivisibility that clearly distinguishes it from matters of provincial concern and a scale of
impact on provincial jurisdiction that is reconcilable with the fundamental distribution of
legislative power under the Constitution” (R. v. Crown Zellerbach (1988))
 Note that distinctness is different than newness, which is not helpful (see Hogg p. 17-16
to 17-19).
 R. v. Crown Zellerbach (1988)
 Case about marine pollution. The federal Ocean Dumping Control Act prohibited
dumping at sea – did it apply to marine waters within the boundaries of B.C.?
 1. National Concern
 Marine pollution is predominantly extra-provincial with international character and
implications, so clearly a concern to Canada as a whole
 2. Singleness, Distinctiveness, Indivisibility:
 Majority and minority disagreed – minority worried that marine waters were
intermingled with fresh waters and regulating marine pollution would have an impact
on industrial and municipal activity, construction etc (ie provincial areas)
 Majority found marine water has “ascertainable and reasonable limits”
 Risk of non-cooperation would undermine efforts and adversely impact other provinces
(aspect of the provincial inability test)
 3. Scale of impact
 Distinction between salt water and fresh water limits the applicability of the federal
legislation
 Carbon Pricing
 Reference re Greenhouse Gas Pollution Pricing Act, 2019 SKCA 40
 Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 544
 Supreme Court of Canada tentatively scheduled hearings in these matters for January
2020 so stay tuned….
 POGG Power-
The “emergency” branch
 The POGG power can be used for laws of a temporary nature that are designed to
address an emergency
 This is logical because emergencies are temporary phenomena
 Board of Commerce case (1922) – legislation that prohibited the hoarding of
“necessaries of life”(food, clothing and fuel) was struck down –POGG power was
rejected as authority for the statute on the grounds that only “highly exceptional” or
“abnormal” circumstances would justify the invocation of the POGG power, such as
“war or famine”
 Toronto Electric Commissioners v. Snider (1925) – POGG power available only in “cases
arising out of some extraordinary peril to the national life of Canada” such as war
 POGG Power –
The “emergency” branch, continued
 WAR
 Fort Frances case (1923) – wartime price controls by the federal gov during WWI were
constitutional

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 Wartime Leasehold Regulations Reference (1950) – wartime rent control by the federal
gov during and after WWII was constitutional
 Japanese Canadians Reference (1947) – deportation of Japanese Canadians was
constitutional
 APPREHENDED INSURRECTION
 October Crisis, 1970 (497 people arrested & detained)
 POGG Power –
The “emergency” branch, continued
 INFLATION
 Anti-Inflation Reference (SCC 1976) – the Anti-Inflation Act (wage and price controls)
was upheld as an emergency measure, in response to high inflation
 Three requirements:
 1. Federal Parliament must have a “rational basis” to claim that there is an emergency
 extreme deference
 onus on opponent to establish lack of rational basis
 2. Legislation must address the emergency
 3. Legislation must be temporary
 National Concern branch vs Emergency branch?
 The “gap” branch of POGG power stands on its own
 But what is the difference between the “national concern” branch and the “emergency”
branch?
 Part 7
 Trade and Commerce
 Trade and Commerce
 s. 91(2) of the Constitution Act, 1867 confers upon the federal Parliament the power to
make laws in relation to “the regulation of trade and commerce” (which sounds broad)
 Issue: how does this relate to the provincial power under s. 92(13) over “property and
civil rights in the province”?
 These powers appear to overlap (ie trade and commerce is carried on by contracts
which give rise to civil rights over property)
 However, the courts have narrowed both powers so there is no overlap (a process of
“mutual modification”)
 Let’s first examine the trade and commerce power…
 Trade and Commerce,
continued
 Provincial power is confined to intraprovincial trade and commerce under “property and
civil rights in the province” (s. 92(13)) (ie local; within the province).
 Federal trade and commerce power is confined to:
 Interprovincial or international trade and commerce, and
 “general” trade and commerce.
 See Citizens Insurance Co. v. Parsons (1881), Hogg p. 20-2.
 Let’s look at each aspect of the federal trade and commerce power…
 1. Interprovincial or International Trade and Commerce

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 Issue: when does trade and commerce become sufficiently interprovincial so as to come
within the federal power?
 Early cases were decided by the Privy Council, which interpreted the power very
narrowly:
 The Insurance Reference (1916) – federal Insurance Act of 1910 purported to establish a
licensing regime for insurance companies; Privy Council struck it down and held that the
federal Parliament could not enact a national insurance law (licensing regime) simply
because insurers are located within various provinces
 Toronto Electric Commissioners v. Snider (1925) – Privy Council rejected the federal
trade and commerce power as support for federal labour laws (Canada not happy about
this at the time)
 The King v. Eastern Terminal Elevator Co. (1925) – the Privy Council struck down a
statute that regulated the grain trade (even though most grain was exported)
 The Margarine Reference (1951) – federal prohibition on the manufacture, sale or
possession of margarine (for the purpose of protecting the dairy industry) was invalid
because it proscribed transactions that could be completed within a province; note that
a provision that prohibited the importation of margarine was upheld as a valid exercise
of the trade and commerce power
 Interprovincial or International Trade and Commerce, continued
 In more recent cases, after appeals to the Privy Council were abolished, the Supreme
Court of Canada started to recognized an expanded trade and commerce power for the
federal Parliament
 Murphy v. CPR (1958) – the SCC upheld the validity of the federal Canadian Wheat Board
Act, which provided for the compulsory purchase by the Canadian Wheat Board of all
grain destined for markets outside the province of production, and for the marketing,
pooling of proceeds and equalizing of the return to producers
 R. v. Klassen (1959) – Manitoba CA upheld validity of the Canadian Wheat Board Act to a
purely local work; Application to intraprovincial transactions was incidental to the
principal purpose of regulating interprovincial and export trade in grain (leave to SCC
refused)
 Caloil v. AG Canada (1971) – SCC unanimously upheld a federal prohibition on the
transportation or sale of imported oil west of the Ottawa Valley; again, incidental effects
on intraprovincial part was ok
 Interprovincial or International Trade and Commerce, continued
 Issue: do these cases provide adequate guidance as to when interprovincial elements of
a law would provide support for constitutional federal regulation?
 Looks like the courts will grant this leeway for commodities like grain and oil which flow
across provincial lines – this interprovincial flow enabled the courts to uphold the
regulation of intraprovincial transactions on the grounds that such regulation was
incidental to the main object of regulating interprovincial flow (recall incidental effects
doctrine)
 But what about the Dominion Stores v. The Queen (1979) (apples) and Labatt Breweries
v. AG Canada (1979) (beer)? – see Hogg pp. 20-9 to 20-11.
 2. “General” Trade and Commerce

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 Recall from Citizens Insurance Co. v. Parsons that the federal trade and commerce
power is confined to:
 Interprovincial or international trade and commerce, and
 “general” trade and commerce affecting the whole Dominion.
 Originally, the “general” category of trade and commerce had been consistently
rejected as a basis for federal policies of economic regulation (as in Insurance Reference
(insurance industry regulation), Toronto Electric Commissioners v. Snider (labour
relations), The King v. Eastern Terminal Elevator Co. (grain trade), the Margarine
Reference, as examples).
 That is, until 1989: General Motors v. City National Leasing (1989)…
 “General” Trade and Commerce, continued
 General Motors v. City National Leasing (1989)
 The SCC held that the Combines Investigation Act (now the Competition Act) was a valid
exercise of the “general” trade and commerce power
 The SCC set out five indicators of federal authority:
 Presence of a general regulatory scheme
 Scheme monitored by oversight of a regulatory agency
 Legislation is concerned with trade as a whole, rather than with a particular industry
 The provinces, jointly or severally, are constitutionally incapable of enacting the
legislation; and
 Failure to include one or more provinces would jeopardize the successful operation of
the scheme in other parts of the country
 Note: the “general” trade and commerce power authorizes the regulation of
intraprovincial trade
 Of course, there would be no need for a “general” branch of trade and commerce if it
did not extend beyond interprovincial and international trade
 The SCC made it clear that an underlying reason was provincial inability – competition
cannot be successfully regulated by federal legislation which is restricted to
interprovincial trade (highlighting the importance of the 4th and 5th indicator of federal
authority, set out in the previous slide)
 See also Kirkbi v. Ritvik Holdings (2005) – LEGO vs Mega Bloks re federal Trade-marks
Act; legislation was upheld because it met the five criteria in General Motors v. City
National Leasing – See Hogg p. 20-17 to 20-18.
 Reference re Securities Act (2011) - proposed federal Securities Act to nationally regulate
the Canadian securities industry (by way of an opt-in provision) was not authorized by
the “general” branch of the trade and commerce power
 General Motors criteria (1) (general regulatory scheme) and (2) (the oversight of a
regulatory agency) were satisfied;
 However, (3) (trade as a whole) and (5) (whether legislative scheme is such that the
failure to include one or more provinces would jeopardize successful operation in the
rest of the country) were not met;
 (4) (provincial inability) was satisfied in part.

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 But recently….
 Securities Regulation
 “SCC rules that a national securities regulator is constitutional” = November 9, 2018
 https://www.canadianlawyermag.com/author/elizabeth-raymer/scc-rules-that-a-
national-securities-regulator-is-constitutional-16474/
 The Supreme Court of Canada ruled that a proposed co-operative pan-Canadian
securities regulator is constitutional, overturning a finding of the Quebec appellate court
 Reference re Pan- Canadian Securities Regulation (2018) SCC 48: https://scc-
csc.lexum.com/scc-csc/scc-csc/en/item/17355/index.do
 Part 8
 Property and
 Civil Rights
 Property and Civil Rights
 s. 92(13) of the Constitution Act, 1867 confers upon the provincial Legislatures the
power to make laws in relation to “property and civil rights in the province”
 This is the most important and most expansive provincial head of power
 Some of the principal subject matters it embraces:
 Law of property, apart from patents, copyrights and federal public property
 Tort law, including statutory creation of civil causes of action
 Contractual transactions within a province
 Family law (adoption, custody, support, property division) apart from marriage and
divorce (s. 91(26))
 Labour law, apart from federal public & private sectors
 Professional regulation
 Highway traffic
 Intraprovincial marketing and retail transactions
 Consumer protection
 Law of succession (wills, estates)
 Property and Civil Rights - Insurance
 An historical battle between the federal Parliament & the provincial Legislatures to
regulate insurance; unlike banking, insurance is not specifically mentioned in the
Constitution Act, 1867, but it is also an industry that first attracted regulation
 Issue: under which head of power does insurance regulation fall?
 Answer: both….
 Property and Civil Rights - Insurance
 Provincial power
 Regulation of terms of contract (Citizens’ Insurance v. Parsons (1881)) = property and
civil rights
 Regulation of a particular industry (Insurance Reference (1916)) = property and civil
rights
 Federal power
 Statutes governing British and foreign companies, federally-incorporated companies
and, on a voluntary basis, provincially-incorporated companies = trade and commerce
 Property and Civil Rights – Business in General

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 The insurance cases established that regulation of business was ordinarily a matter
within property and civil rights in the province
 Note that there are exceptions:
 Some federal industries are within federal power because they are enumerated in s. 91,
such as navigation and shipping, banking
 Some industries fall within federal jurisdiction under the POGG power, such as
aeronautics, the production of atomic energy
 Other federal powers confer a limited power to regulate business, such as trade and
commerce, taxation, criminal law
 See Hogg p. 21-9 for the gaps in federal power
 Property and Civil Rights – Labour Relations
 The regulation of labour relations over most of the economy is within provincial
competence under property and civil rights in the province
 Leading case is Toronto Electric Commissioners v. Snider (1925) – Privy Council rejected a
federal attempt to regulate labour relations (trying to prevent lockouts and strikes
through compulsory conciliation) – Canada not happy about this decision
 Issue: is there any room for federal power in labour relations?
 After Toronto Electric Commissioners v. Snider, the federal Parliament amended its
labour legislation to apply to those industries within the legislative authority of the
federal Parliament
 Issue: can the federal Parliament regulate labour relations in those industries which
were otherwise within federal competence? i.e. navigation and shipping, interprovincial
transportation and communication, etc.
 Stevedores Reference (1955) – a federal law applying to “businesses carried on for or in
connection with navigation and shipping” was valid; the case stands for the proposition
that the federal Parliament has the power to regulate employment in works,
undertakings or businesses within the legislative authority of federal Parliament
 Note that the issue will be whether or not a particular bargaining unit of employees is an
integral part of an undertaking that is within federal jurisdiction (i.e. the fact that
employees are engaged in the construction of a runway at an airport will not sweep
them into federal jurisdiction if their work is simply construction, unrelated to the tasks
of design or operation that would be an integral part of aeronautics – See Hogg pp. 21-
13 to 21-14)
 Issue: in “federal sectors” of the economy, where there is federal jurisdiction over
labour relations, is the federal jurisdiction exclusive or is it concurrent with that of
provincial Legislatures?
 Bell #1 (1966); Bell #2, (1988) – In “federal sectors” of the economy, federal jurisdiction
over labour relations is exclusive and not concurrent with provincial Legislatures
 Anti-Inflation Reference (1976) – federal jurisdiction over labour relations will extend
outside the federal sectors of the economy temporarily in times of national emergency
(but provincial powers will remain concurrent)
 Property and Civil Rights – Securities Regulation

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 The provinces have the power to regulate the trade in corporate securities as a matter
of property and civil rights in the province
 Reference re Securities Act (2011) - proposed federal Securities Act to nationally regulate
the Canadian securities industry was struck down by the SCC (note the comparison to
competition law arising out of General Motors v. City National Leasing)
 However, recently in Reference re Pan- Canadian Securities Regulation (2018) SCC 48,
the Supreme Court of Canada ruled that a proposed co-operative pan-Canadian
securities regulator is constitutional:
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17355/index.do
 Property and Civil Rights - Property
 The creation of property rights, their transfer and their general characteristics are within
property and civil rights in the province
 Includes the law of real and personal property (including landlord and tenant, trusts and
wills, succession on intestacy, conveyancing, land use planning)
 Can a province control foreign ownership of land?
 What about heritage property?
 Part 9
 Criminal Law
 Criminal Law
 Federally, s. 91(27) of the Constitution Act, 1867 confers on the federal Parliament the
power to make laws in relation to “the criminal law, except the constitution of courts of
criminal jurisdiction, but including the procedure in criminal matters”
 The criminal law of Canada is codified in one federally-enacted Criminal Code
 Provincially, s. 92(14) of the Constitution Act, 1867 confers on provincial Legislatures the
power to make laws in relation to “the administration of justice in the province,
including the constitution, maintenance and organization of provincial courts, both of
civil and criminal jurisdiction, and including procedure in civil matters in those courts”
 Authorizes provincial policing and prosecution of offences under the Criminal Code
 Criminal Law
 Correctional institutions
 s. 91(28) – the federal Parliament has jurisdiction over “penitentiaries”, which holds
offenders sentenced to imprisonment of two years or more
 s. 92(6) – the provinces have jurisdiction over “prisons”, which hold offenders sentenced
to imprisonment for less than two years
 Provincial offences
 s. 92(15) – provinces can make laws in relation to the imposition of a punishment by
fine, penalty or imprisonment for enforcing any law of the province
 In order words, provinces have an ancillary power to enact penal laws enforcing
otherwise valid provincial laws
 Defining Criminal Law
 Issue: s. 91(27) confers on the federal Parliament the power to make laws in relation to
“the criminal law”… How to define “criminal law”? What are the concerns with how to
define it?

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 Margarine Reference (1951) – a law that prohibited the manufacture, importation or

sale of margarine (the purpose of which was to protect the dairy industry) – is this law a
“criminal law”? In theory, it might belong because it is a criminal form of prohibition
coupled with a penalty
 But the Court said that the economic object of protecting an industry made the law in
pith and substance in relation to property and civil rights in the province
 Defining Criminal Law, continued
 So the Margarine Reference added a third ingredient for a law to fit the definition of
“criminal law”
 The law must establish a prohibition;
 The law must carry a penalty; and
 The law must be for a valid (typical) criminal public purpose.
 Some public purposes that would qualify: “public peace, order, security, health,
morality…” (note that the definition by the court was not exhaustive)
 This does not mean that the criminal law cannot serve economic ends
 See Hogg pp. 18-3 to 18-8.1
 Issue: is the “harm principle” a requirement of a valid criminal law?
 R. v. Malmo-Levine (2003) – at issue was the validity of the criminalization of the
possession of marijuana (something that did not, it was argued, cause any harm)
 The Court rejected the argument that the “harm principle” was a requirement of valid
criminal law; harm to the accused and moral concerns were adequate bases for the
enactment of the law (which did not depend on harm to others)
 Re Assisted Human Reproduction Act (2010) – the SCC was unanimous that absolute
prohibitions of immoral or risky practices associated with assisted human reproduction
(such as the sale and purchase of human embryos) was a valid exercise of Parliament’s
criminal law power, but the SCC divided on whether qualified prohibitions (such as
those activities carried out under licence) were within the criminal law power (and the
majority held that they were not)
 Criminal Law-
Food and Drugs
 Margarine Reference (1951) - a federal law that prohibited the manufacture,
importation or sale of margarine (the purpose of which was to protect the dairy
industry) was struck down on the basis the economic object of protecting an industry
made the law in pith and substance in relation to property and civil rights in the
province
 The statute was struck down even though the preamble asserted that margarine was
“injurious to health” (which, if true, would have satisfied the requirement of a typically
criminal public purpose – the federal government admitted that it was not true)
 Criminal Law-
Food and Drugs

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 Labatt Breweries v. AG Canada (1979) – the SCC held that part of the federal Food and
Drugs Act that authorized regulations prescribing compositional standards for food was
unconstitutional (in this case, the amount of alcohol in beer vs. light beer)
 The SCC found that, while the federal government could enact laws for the protection of
health, the alcoholic requirement for light beer was not related to health
 The SCC also found that the federal government could enact laws for the prevention of
deception, but that the compositional standards for light beer could not be supported
on this ground either
 Criminal Law-
Tobacco
 RJR-MacDonald v. Canada (1995) – concerned the validity of the federal Tobacco
Products Control Act, which prohibited the advertising of cigarettes and other tobacco
products and required the placement of health warnings on packages – was this a valid
criminal law? The Act contained a prohibition and a penalty, but was it for a typically
criminal public purpose?
 The SCC was unanimous that the health warnings, as a protection of public health,
supplied the required purpose to support the exercise of criminal law power
 However, what about the ban on advertising? The federal government is allowed to
prohibit the manufacture, sale or possession of dangerous products, but it had not done
that… It was going after the advertising instead….
 Criminal Law-
Tobacco
 RJR-MacDonald v. Canada (1995) continued…
 The majority of the SCC found that the power to prohibit the use of tobacco on account
of its harmful effects on health also encompassed the power to take the lesser step of
prohibiting the advertising of tobacco products
 The purpose was still the protection of the public from a dangerous product
 Justice Major dissented (the prohibition of the advertising of a legal product lacked a
“typically criminal purpose”)
 Criminal Law –
Environmental Protection
 R. v. Hydro-Quebec (1997)
 SCC held that the protection of the environment (which extends beyond the protection
of human health) was a public purpose that would support a federal law under the
criminal law power
 Canadian Environmental Protection Act was upheld under the federal criminal law
power (whereas the dissenting judges thought that the Act was regulatory, not criminal)
 See Hogg pp. 18-12.1 and 18-30
Assisted Human Reproduction
 Assisted Human Reproduction Act – federal act attempting to exercise criminal law
power to regulate the use of assisted human reproduction techniques
 Re Assisted Human Reproduction Act (2010) – was the Act a valid exercise of the federal
criminal law power?

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 Yes, in respect of the outright prohibition of certain reprehensible practices like the
buying and selling of embryos, human cloning
 But what about “controlled activities” (those that applied unless they were carried out
in accordance with regulations)?
 A narrow majority (5-4) upheld the absolute prohibitions as criminal law, but found the
rest of the Act unconstitutional because it was really a regulatory scheme and the
regulation of assisted human reproduction came within the provincial powers (over
hospitals, the medical profession, property and civil rights and local matters)
 What was the “pith and substance” of the law, according to the Court?
Gun Control
 Federal Parliament enacted the Firearms Act in 1995, which amended Criminal Code
provisions by requiring all guns to be registered and all gun owners to be licensed
 Re Firearms Act (2000) – the province of Alberta referred the Act to the courts for a
ruling on its constitutionality – was the Act a valid exercise of criminal law power?
 The SCC said yes, a valid exercise of criminal law power
 Purpose of the Act was to restrict access to inherently dangerous things
 The requirements of the Act were directed to public safety
 The effect on property (ie the guns themselves) was incidental to the main purpose of
public safety
Assisted Suicide
 Carter v. Canada (2015) – Issue is whether, given that all agree that the prohibition of
assisted suicide is, in general, a valid exercise of criminal law power; but should the
interjurisdictional immunity doctrine apply to physician-assisted dying, because it lies at
the core of provincial jurisdiction over health care?
 Held: Criminal Code prohibition on assisted suicide is, in general, a valid exercise of the
federal criminal law power
 But the Interjurisdictional immunity claim fails. The SCC found that health is an area of
concurrent jurisdiction (so both the federal Parliament and the provinces may validly
legislate on the topic).
 Note: Law struck under s. 7 Charter and the prohibition in the Criminal Code on assisted
suicide were struck down and Parliament was given 12 months to enact new legislation
legalizing physician-assisted dying
 Criminal Law and Civil Remedies
 Federal Parliament has no independent power to create civil remedies akin to its power
over criminal law (so if the pith and substance of a federal law is the creation of a new
civil cause of action, the law will be invalid)
 Issue: but what if the civil remedy is incidental to the main purpose of the law?
 Functional connection test – civil rights of action will be permitted by the federal law if
there is a rational, functional connection between them and the valid provisions of the
federal legislation

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 Examples where such a civil right of action has been upheld: civil remedy in federal
corporation law against persons engaged in insider trading; the federal Divorce Act can
provide for the custody of children, even though custody is usually provincial
 Criminal Law and Civil Remedies, continued
 Further issue: can the federal Parliament’s criminal law power authorize the creation of
a civil right of action for breach of a criminal statute?
 Example: can the Criminal Code provide that a criminal court can order an accused to
pay a victim compensation for any loss or damage?
 See R. v. Zelensky (1978) – Hogg p. 18-25
 Provincial Power to Enact Penal Laws
 We were looking at whether the federal Parliament could tread into civil remedies;
whether the provinces have the power to enact penal laws is the other side of the coin
 s. 92(15) Constitution Act, 1867 – provincial Legislatures have the power to impose
“punishment by fine penalty or imprisonment” for the purpose of enforcing valid
provincial laws (obviously! Provinces need to be able to enforce their legislation)
 Issue: when is a law a valid provincial law with an ancillary penalty vs a provincial law
which is invalid because it is in pith and substance a criminal law?
 Provincial Power to Enact Penal Laws, continued
 Chatterjee v. Ontario (2009) Police pulled over a car with no front licence - plate; police
computer showed the driver was in breach of a court order so driver was arrested;
search of the car revealed $29,000 cash which “smelled of marijuana” – money was
seized and forfeited to provincial Crown on the grounds that the money was “proceeds
of unlawful activity” (even though no charges laid and no drugs found in the car)
 Provincial statute was the Civil Remedies Act, 2001 (in this case, it was the smell of the
marijuana coupled with the driver’s explanation for the money that caused the court to
order the forfeiture) – the driver argued that the Civil Remedies Act was
unconstitutional (ie the provincial act was an unconstitutional intrusion into the federal
realm of criminal law)
 SCC held that the pith and substance of the law was in relation to property (and noted
that both provinces and federal Parliament were competent to make laws for the
purposes of preventing and compensating crime)
 SCC unanimously upheld Ontario’s civil forfeiture statute as a valid exercise of provincial
jurisdiction under s. 92(13) and (16)
 The Crown kept the $29,000
 Part 10
 Language Rights
 Language Rights
 Distribution of powers over language
 Language is not a class of subject that is enumerated in the Constitution Act, 1867
 Does it belong to the provinces, such as coming under “property and civil rights”?
 Or does it belong to the federal Parliament, as a POGG power?
 Or something else entirely?
 Language Rights – Distribution of Powers

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 The case law makes it clear that language is not an independent matter of legislation
(see Jones v. AG New Brunswick (1974) at Hogg p. 56-3)
 This means that no single plenary power to enact laws in relation to language exists
 So language will fall under both levels of government, depending on criteria other than
the impact of the law on language
 Language of Constitution
 Constitution Act, 1867 was enacted in English only
 So the French version is unofficial – what does this mean?
 The Canada Act 1982 and the Constitution Act, 1982 were enacted by the UK Parliament
in both languages
 s. 57 of the Constitution Act, 1982 provides that the English and French versions of that
Act are equally authoritative (note that this does not tell us how to resolve
discrepancies)
 Since Confederation, federal statutes are enacted in both languages due to s. 133 of the
Constitution Act, 1867 and there are rules for resolving discrepancies (see Hogg p. 56-6)
 What is s. 133 of the Constitution Act, 1867?...
 Language of Statutes
 Constitutional Requirements
 s. 133 of the Constitution Act, 1867 provides the only explicit guarantee of language
rights
 Either English or French may be used by any person in the debates of the Houses of
Parliament of Canada and of the Houses of the Legislature of Quebec
 Both languages shall be used in the records and journals of the Houses
 Either language can be used by any person or in any pleading in any Court of Canada or
Quebec
 The Acts of the Parliament of Canada and the Legislature of Quebec shall be printed and
published in both languages
 Language of Statutes, continued
 Note that s. 23 of the Manitoba Act, 1870 is very similar to s. 133 of the Constitution
Act, 1867
 Why? Due to the French-speaking minority in Manitoba
 New Brunswick is also in a similar position to Quebec and Manitoba,
 Language of Statutes –
Case Law
 Attorney General of Quebec v. Blaikie (1979) – the SCC struck down those provisions of
Quebec’s Charter of the French Language that purported to make French the language
of the Legislature; contravened s. 133 of the Constitution Act, 1867 (Note: remedied
overnight, because already translated)
 Re Manitoba Language Rights (1985) – the SCC found that almost all Manitoba statutes
were invalid because enacted in English only, contrary to s. 23 of the Manitoba Act,
1870 (as of 1890, when the Official Languages Act was enacted)
 Problem: a legal vacuum in Manitoba??
 Solution: the SCC deemed the province’s statutes to have temporary force and effect ie
a transitional period (“temporary suspension of invalidity”)

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 Language of Statutes –
Case Law, continued
 Attorney General of Quebec v. Collier (1985) - “incorporation by reference”
 where a statute makes reference to another document, so as to incorporate (or adopt)
the document as part of the statute, then the general rule is that, if there is a
constitutional requirement that the incorporating statute be in both languages, then the
requirement will apply to the incorporated document as well
 The reason for this is to prevent the denial of access by English or French speakers to
the Legislature
 The document that is incorporated has to be an “integral part” of the statute to trigger
this requirement
 Language of Courts
 Constitutional Requirements
 s. 133 of the Constitution Act, 1867 requires that either French or English “may be used
by any person or in any pleading or process in or issuing from any Court of Canada
established under this Act, and in or from all or any of the Courts of Quebec.”
 Again, s. 23 of the Manitoba Act, 1870 imposes a similar requirement on the courts of
Manitoba
 Again, s. 19(2) of the Charter imposes a similar requirement on the Courts of New
Brunswick
 Other provinces are under no such constitutional language requirement
 Language of Courts, continued
 How to define “courts”? Does it also include tribunals?
 Attorney General of Quebec v. Blaikie (1979) - SCC held that reference to the “Courts of
Quebec” in s. 133 of the Constitution Act, 1867 included not only courts with federally-
appointed judges and inferior courts with provincially-appointed judges but also to
administrate tribunals established by statute that exercised adjudicative functions
 What about the language of process?
 MacDonald v. City of Montreal (1986) – English-speaking Quebecer got a speeding
ticket; the summons issued by the Quebec Court (which included the charge) was in
French only; did the unilingual summons infringe s. 133?
 No – s. 133 provided that “either” of the two languages may be used in any process
issuing from a Quebec court; as such, the court process need not be bilingual
 Furthermore, the court held that s. 133 does not guarantee that the speaker, writer or
issuer of proceedings or processes will be understood in the language of his choice i.e.
there is no right to choose the language of the process
 What about the language of proceedings?
 Société des Acadiens v. Association of Parents (1986) – argument that one of the judges
in the New Brunswick Court of Appeal did not understand French (which was not
established as a matter of fact)
 The Court found that neither s.133 nor s.19(2) confer a guarantee that the litigant’s
language of choice will be understood by the judge hearing the case (!!)

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 Right to Interpreter
 s. 14 of the Charter of Rights guarantees the right to an interpreter to “a party or
witness in any proceeding who does not understand or speak the language in which the
proceedings are conducted or who is deaf. . . “
 R. v. Tran (1994) – SCC held that the right to an interpreter required the standard of
“continuity, precision, impartiality, competence and contemporaneousness” (ie cannot
be a break in what is being testified and the interpretation)
 Language of Government
 s. 16 of the Charter makes English and French the official languages of Canada and New
Brunswick
 s. 16(3) of the Charter authorizes the Parliament and Legislatures to create language
rights above and beyond those conferred by the Constitution
 s. 20 of the Charter imposes an obligation on government to provide bilingual federal
services to the public
 Where there is significant demand, or
 Due to the nature of the office.
 English and French services must be of equal quality (equality is substantive) – see
DesRochers v. Canada (2009) Hogg p. 56-23
 Language of Commerce
 None of the language rights in the Constitution of Canada protects the use of the English
or French language in commercial (or private) settings
 However, statutory language requirements may offend the freedom of expression
guarantee in s. 2(b) of the Charter
 Ford v. Quebec (1988): Requirement that commercial signs and ads be in French only
struck down (note that Quebec used the override power / notwithstanding clause to
keep this law on the books)
 Language of Education
 s. 93 of the Constitution Act, 1867 confers upon the provincial Legislatures the power to
make laws in relation to education
 However, s. 93 prohibits the provincial Legislatures from prejudicially affecting “any
right or privilege with respect to denominational schools which any class of persons
have by law in the province at the union” (ie if a particular language of instruction was a
right or privilege of a denominational school in a particular province at the time of
confederation, it stays)
 Ottawa Roman Catholic Separate School Trustees v. Mackell (1916) – Privy Council found
that Ontario had the power to require that English be the language of instruction in
hitherto French-speaking Roman Catholic separate schools in the province
 Language of Education, continued
 s. 23 of the Charter confers upon “citizens of Canada” who are members of the English-
speaking minority in Quebec or the French-speaking minority in other provinces “the
right to have their children receive primary and secondary school instruction in [the
minority] language in that province” (only “where numbers warrant”)
 The right is possessed by parents who fit in one of three categories:

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 Mother-tongue of the parent (note that this does not apply in Quebec unless Quebec
adopts it)
 Language of primary school instruction in Canada of the parent
 Language of instruction in Canada of one child of the parent.
 Language of Education, continued
 Issue: s. 23 limits the right of instruction to “where numbers warrant” – what does this
mean?
 Mahe v. Alberta (1990) – SCC held that “where numbers warrant” creates sliding scale
 On facts here, numbers (4000 students) warrant guarantees of a number of
Francophone representatives on school board, but not a separate school board itself
 Association des parents de l’ecole Rose-des-vents v. BC (2015) – rights-holders entitled
to full educational facilities that are distinct from and equivalent to majority;
equivalence does not mean identical but must be substantive equivalence (look at what
a reasonable parent would examine when choosing school for his / her child)
 End Day 2
CLASS 3:
 Part 11
 Interpreting the
 Charter of Rights and Freedoms
 The Charter of Rights and Freedoms - History
 At first, there was a Canadian Bill of Rights which was enacted in 1960 after WWII
 But the Canadian Bill of Rights was just a regular statute and it did not apply to the
provinces
 In 1981, nine out of 10 provinces (all except Quebec) made an agreement which led to
the enactment of the Constitution Act, 1982, of which Part I is the Canadian Charter of
Rights and Freedoms
 Unlike the Canadian Bill of Rights which is just a statute, the Charter is part of the
Constitution - what does this mean?
 Can only be altered by constitutional amendment
 Can override inconsistent statutes
 Applies to both levels of government
 Protection of Civil Liberties
 The Charter guarantees a set of civil liberties that are so important that they are
protected from state action
 The government is supposed to avoid actions that would violate the Charter (i.e. in the
federal government, the Minister of Justice has to review all proposed statutes and
regulations for compliance with the Charter pursuant to the Department of Justice Act,
1985)
 In theory, the provincial Ministers of Justice / Attorneys General do the same (although
there is no statutory reporting obligation)
 How to enforce Charter compliance by government?

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 Judicial Review
 Charter = expansion of judicial review
 It used to be that courts only invalidated laws based on the distribution of powers; the
Charter added another basis for invalidation of laws
 In fact, there are way more Charter cases than federalism cases and Charter cases are
based more on policy
 Judicial Review, continued
 Potential problems if courts / judges have the power to invalidate legislation that
violates the Charter
 Is it legitimate in a free and democratic society to empower non-elected judges to strike
down the decisions of elected legislators? (is this “counter-majoritarian”?)
 Are judges actually better qualified than legislators to decide policy-laden rights issues?
Many of the words are quite vague and so require interpretation…
 What do you think?
 Section 1 of the Charter
 Judicial review of legislation under the Charter is a two-stage process:
 Does the challenged law derogate from a Charter right?
 If the answer to the first question is yes, ask whether the law is justified under s. 1 of the
Charter as a reasonable limit prescribed by law that can be demonstrably justified in a
free and democratic society
 Note s. 33 (override power) gives legislature the last word… (to be discussed later)
 Dialogue Theory
 The Charter contemplates “dialogue” between the judicial and legislative branch
 Dialogue occurs, for example, when a law fails to pass Charter scrutiny under s. 1 and
the legislature tries again to enact a law with the same objective but which makes a less
drastic encroachment on a Charter right
 Note that there was a study in 1997 revealing that there were 66 cases in which a law
was struck down on Charter grounds and in 53 of those cases the legislature made some
response (and in 46 of those cases, a new law was substituted for the old one; in only 7
cases was the offending law repealed)
 Dialogue Theory, continued
 “Remedial discretion” = the SCC sometime suspends a declaration of invalidity after
finding a law to be unconstitutional to give the government time to revise it; this is a
radical remedy – why?
 Schachter v. Canada (1992) – SCC said it would only grant a temporary period of validity
to an unconstitutional law in three circumstances, namely, where the immediate striking
down of the law:
 Would pose a danger to the public;
 Would threaten the rule of law;
 Would result in the deprivation of benefits from deserving persons.
 Note: this standard has since loosened. Why?
 Charter Analysis
 Recall that judicial review of legislation under the Charter is a two-stage process:
 Does the challenged law abridge a Charter right?

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 If the answer to the first question is yes, ask whether the law is justified under s. 1 of the
Charter as a reasonable limit prescribed by law that can be demonstrably justified in a
free and democratic society
 Step One. Let’s examine the first stage of the analysis. The Court looks at two issues:
 How to characterize the challenged law?
 What is the meaning of the asserted right?
 Purpose or Effect
 How to characterize the challenged law?
 Recall that the way to characterize the law for the purpose of the federalism review was
to look at the “matter” (or “pith and substance” of a challenged law – this often involves
examining the purpose of the law)
 For a Charter analysis, the law will offend the Charter if either its purpose (obviously) or
its effect is to abridge a Charter right (unless the law is saved by s. 1)
 Purpose or Effect, continued
 R. v. Big M Drug Mart (1985) – Sunday-closing case; SCC held that the federal Lord’s Day
Act which prohibited commercial activity on a Sunday abridged the guarantee of
freedom of religion in s. 2(a) of the Charter (as the purpose of the law was a religious
one, to compel observance of the Christian Sabbath) – this was an invalid purpose, so
the Court did not even need to look at the effect of the law (and noted that effects can
never be relied on to save legislation with an invalid purpose)
 R. v. Edwards Books and Art (1986) – provincial Sunday-closing case where the purpose
of the law was a secular one of prescribing a uniform pause day for workers; so the law
passed the purpose test; however, the effect of the law was to impose a burden on
those retailers whose religious beliefs required them to abstain from work on a day
other than Sunday, which was an abridgement of freedom of religion; notably, the Court
relied on the benign purpose to uphold the law under s. 1 of the Charter
 Note: the Lord’s Day Act (Big M Drug Mart) is the only law that ever failed the purpose
test in the SCC (as most laws are not enacted with the purpose of abridging a Charter
right) – the entire Act was struck down
 Interpretation of the Charter
 Does the challenged law abridge a Charter right?
 How to characterize the law? (purpose and effect)
 What is the meaning of the asserted right?...
 Issue for (ii): how to interpret a Charter right?
 Doctrines of progressive interpretation, generous interpretation, purposive
interpretation, process as purpose, hierarchy of rights
 Progressive Interpretation
 A constitution is different from an ordinary statute because it is broad enough to cover a
wide range of unpredictable situations, it is difficult to amend and it is likely to remain in
force for a long time
 This means that a flexible interpretation is needed, so that the constitution can be
adapted over time to changing conditions
 The “doctrine of progressive interpretation” = the constitution is a “living tree capable
of growth and expansion within its natural limits” (Edwards v. AG Canada (1930))

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 Generous Interpretation
 Edwards v. AG Canada (1930) – the SCC called the constitution a “living tree” that
should be given a “large and liberal interpretation”
 This means more judicial activism and a restriction on the powers of the legislature in
Charter cases
 This creates an interesting analytical question – should the courts interpret Charter
rights very broadly, and then relax the standards of justification under s. 1; or should the
Court give a narrow interpretation of rights and then use a stringent standard of
justification under s. 1?
 What does Hogg advocate for? What do you think?
 Purposive Interpretation
 The “purposive” approach to the interpretation of Charter rights is an attempt to
ascertain the purpose of each Charter right, and then to interpret the right so as not to
include activity that comes within the purpose and exclude activity that does not
 But note that of course the actual purpose of the right is usually unknown so courts
have much discretion: look to the language of the right, context, other Charter rights,
legislative history of the Charter, etc.
 In theory, the purposive approach will narrow the scope of a right, because it means the
right must be confined to its purpose (but note that the purposive approach goes hand
in hand with the “generous” approach – use the widest possible reading of the right,
without overshooting its purpose)
 Conflict Between Rights
 See Hogg, section 36.8(f))
 There are a few conflicts that are contemplated by the Charter (see ss. 25 and 29 of the
Charter, for example) but the Charter mostly does not make provision for other kinds of
conflicts between rights
 Conflict between rights is generally resolved under s.1 of the Charter
 Ad hoc balancing by the courts, for the most part
 Conflict Between Rights
 R. v. Keegstra (1990) – person charged with wilfully promoting hatred contrary to the
Criminal Code (equality vs. freedom of expression)
 The rights conflict was resolved through section 1 (ie Criminal Code provision upheld; it
did violate freedom of expression but was justified under s. 1)
 This is an example of the courts’ ad hoc approach to the balancing of rights, rather than
assigning priorities to rights
 Part 12
 Application of the
 Charter of Rights and Freedoms
 Application of the Charter
 Issue: who is entitled to the benefit of the rights guaranteed by the Charter? (Ie, what
about corporations?)
 Issue: who bears the burden of the Charter rights? (Ie, who is bound by the Charter?)
 Issue: can Charter rights be waived?

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 Benefit of Rights –
Everyone, anyone, any person
 Who is entitled to the benefit of the rights guaranteed by the Charter? This depends on
the language by which the rights are defined…
 Some rights apply to “Everyone”, “anyone” or “any person” = synonymous?
 Sections 2, 7, 8, 9, 10, 12, and 17 of the Charter state that “Everyone” has the right
 Sections 11 and 19 state that “Any person” has the right
 Section 20 states “Any member of the public”
 Section 24 states “Anyone”
 Benefit of Rights –
Everyone, anyone, any person
 Rights that include the phrase “everyone”, “anyone” or “any person”
 likely include a corporation as well as an individual
 There are some logical exceptions (ie s. 2(a) freedom of conscience and religion does
not apply to a corporation as a corporation cannot hold a belief; but note Big M Drug
Mart where a corporation invoked s. 2(a) as a defence to a criminal charge which was
permissible)
 Also, a corporation cannot be detained, imprisoned or arrested so s. 9 right against
arbitrary detention does not apply
 Foetus is not a legal person so not entitled to Charter rights (including the right to life
under s. 7)
 No independent requirement of a connection to Canada to claim Charter rights ie.
Charter rights held by those who enter Canada illegally (Singh v. Minister of Employment
and Immigration (1985))
 Benefit of Rights - Individual
 Section 15 confers equality rights on “every individual”
 More specific term than “everyone” or “anyone” or “any person”
 Likely excludes corporations (however, the issue has not been decided by the Supreme
Court)
 Benefit of Rights – Citizens and Permanent Residents
 A person need not be a Canadian citizen to invoke Charter rights
 Recall Singh case – “Everyone” = every human being who is physically present in Canada
and by virtue of such presence amenable to Canadian law (ie include even those who
have entered Canada illegally)
 Citizenship is a required qualification for some rights: voting rights (s. 3), mobility rights
(s. 6) and minority language education rights (s. 23)
 The mobility rights of s. 6(2) (but not s. 6(1)) apply to every citizen and “every person
who has the status of permanent resident of Canada” (a term that is defined in the
federal Immigration and Refugee Protection Act)
 Burden of Rights
 Issue: who is bound by the Charter?
 Answer: both levels of government
 Section 32(1) This Charter applies:

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 to the Parliament and Government of Canada in respect of all matters within the
authority of Parliament including all matters relating to the Yukon Territory and
Northwest Territories; and
 to the legislature and government of each province in respect of all matters within the
authority of the legislature of each province.
 Burden of Rights –
Parliament or Legislature
 The Charter operates as a limitation on the powers of the Parliament (the federal
legislative body) and a Legislature (a provincial legislative body)
 Recall that any statute enacted by either Parliament or a Legislature which is
inconsistent with the Charter will be outside the power of (ultra vires) the enacting body
and will be invalid
 What about legislative silence? (Vriend v. Alberta (1988))
 What about legislative exclusions? (Dunsmore v. Ontario (2001))
 Burden of Rights – Statutory Authority
 Issue – what about bodies that are not technically federal Parliament or provincial
legislatures, but that exercise statutory authority? Examples – ministers, municipalities,
police officers, administrative tribunals
 The Charter applies. Why? Parliament / the legislature cannot pass laws in breach of the
Charter, so a body created by a statute cannot authorize action that would be in breach
of the Charter
 According to Hogg, the issue is the “power of compulsion” that is not possessed by a
private individual or organization
 Greater Vancouver Transportation Authority v. Canadian Federation of Students (2009) –
Charter applies to a municipal by-law, made under statutory authority, that purported
to prohibit political postering on city buses
 Eldridge v. British Columbia (1997) – does the Charter apply to a hospital, which did not
provide sign-language interpretation for deaf persons seeking medical services?
Government
 Governments sometimes act under prerogative powers, which are common law powers
possessed only by government; Examples: issuing passports, awarding honours,
conducting foreign affairs
 Governments also act under common law powers that are available to everyone;
Examples: entering into contracts, buying property
 Charter applies to governmental action taken under both kinds of common law powers
 “Control test” = is there an institutional or structural link with government? If yes, that
entity is bound by the Charter
 Highly case-specific
Courts
 Issue: does the Charter apply to Courts?
 The Supreme Court of Canada first said no in Retail, Wholesale and Department Store
Union v. Dolphin Delivery (1986) – a court order prohibiting picketing was rejected as a

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breach of freedom of expression because the SCC said that the Charter did not apply to
the order of a court. But then…
 The SCC said yes in R. v. Rahey (1987) – the SCC found a delay by a criminal court
breached an accused’s right to be tried within a reasonable time (s. 11(b) of the Charter)
– did not mention Dolphin Delivery!
 The SCC said yes again in British Columbia Government Employees’ Union v. British
Columbia (1988) – tried to reconcile with Dolphin Delivery by holding that a court order
is indeed subject to Charter review (and noting that in Dolphin Delivery the court order
resolved a dispute between two private parties based on the common law)
Common Law
 Issue: does the Charter apply to the common law? (This issue is related to Courts,
because judges make the common law - Recall: the Charter applies to Courts where a
court order is issued on a court’s own motion for a public purpose or in a proceeding in
which the government is a party, or in a purely private proceeding that is governed by
statute law)
 Answer: the Charter does not apply to the common law regulating relationships
between private parties
 See Hill v. Church of Scientology (1995) – “Charter values”
Private Action, Foreign Governments
 The Charter does not apply to private action (ie the relationships between private
persons)
 Does this mean that a restaurant can discriminate against a patron based on the colour
of his / her skin?
 The Charter does not apply to foreign governments
 What about extradition / deportation? Cases where persons are extradited to face the
death penalty in another country (United States v. Burns (2001)); or where persons are
deported to torture (Suresh v. Canada (2002)); or Canadian citizen held in Guantanamo
Bay (Canada v. Khadr (2008))
 Waiver of Rights
 Constitutional rights can sometimes be waived by rights-holders (one example: waiving
the right to counsel in a criminal proceeding under s. 10(b) of the Charter, where a
person would like to represent him or herself)
 Waiver requires an informed, clear and voluntary choice to surrender the right
 Different than a failure to exercise the right, or the forfeiture of a right
 Waiver exists due to the presumption that the right is for the benefit of the person who
chooses to exercise it
 Part 13
 Override of Rights
 Section 33(1) – Parliament or the legislature of a province may expressly declare in an
Act of Parliament or of the legislature, as the case may be, that the Act or a provision

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therefore shall operate notwithstanding a provision included in section 2 or sections 7

to 15 of this Charter…
 The “notwithstanding clause”
 Section 33 of the Charter enables Parliament or a Legislature to “override” s. 2 or ss. 7 –
15 of the Charter
 S. 2 (freedom of religion, expression, assembly and association); ss. 7-14 (legal rights)
and s. 15 (equality)
 Rights that cannot be overridden: ss. 3-5 (democratic rights), s. 6 (mobility), ss. 16-23
(language) and s. 28 (sexual equality)
 Ie two tiers of rights: “common rights” that are subject to override and “privileged
rights” which are not subject to override- Why?
 Formal requirements:
 Must specify particular Charter provision(s) to be overridden
 Must be express
 Automatically expires after 5 years, and any re-enactments are also subject to 5 year
“sunset” (s. 33(3))
 A side question: What is another way that laws can remain on the books
notwithstanding the fact that they breach the Charter?
 History of s. 33
 Part of the compromise in the patriation of the constitution; provinces were worried
that the Charter would limit the sovereignty of their legislatures
 Recall that Quebec did not agree to patriation (including the Charter) and so in the
beginning added a standard form notwithstanding clause to each of the statutes in force
in Quebec (which ended in 1985 with Liberals elected)
 Ford v. Quebec (1985)
 Ford v. Quebec (1988) - SCC held that a law banning the use of languages other than
French in commercial signs was an infringement of freedom of expression
 Provincial legislature reenacted the law prohibiting the use of the English language in
outside commercial signs with the notwithstanding clause (note that the
notwithstanding clause lapsed in 1993 after 5 years, and the Quebec Legislature lifted
the ban on English language signs and replaced it with legislation that required only that
French be predominant (no notwithstanding clause was used)
 s. 33 is used infrequently – only used 3 times outside of Quebec
 Recent Ontario attempt; secularism law in Quebec (Bill 21) – more to come?
 Judicial Review
 A current issue: to what extent is the exercise of the override power subject to judicial
review?
 The use of the override needs to conform with s. 33 (only applies to certain rights; must
be specific as to the statute that is exempted from the Charter and the rights
overridden; may not be given retroactive effect) – these requirements are mainly formal
and not very demanding
 Is s. 33 subject to s. 1 of the Charter? (Stay tuned…)

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 What do you think about s. 33 (the notwithstanding clause)? Is it “an intrinsically sound
solution to the dilemma of rights and courts”? (see Hogg p. 39-11)
 Part 14
 Limitation of Rights
 Section 1 of the Charter:
 The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law as can
be demonstrably justified in a free and democratic society.
 Charter rights are not absolute
 It is the courts that set the limits in the end
 Two stages of review contemplated by section 1:
 The court must decide whether the challenged law has the effect of limiting one of the
guaranteed rights
 If yes, the court must decide whether the limit is a reasonable one that can be
demonstrably justified in a free and democratic society
 Key case: R. v. Oakes (1986) = the “Oakes test”
 Defining Limits
 Recall section 1 of the Charter: “The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and democratic society.”
 Let’s assess the limits (the “Oakes Test”):
 Prescribed by law
 Reasonable and demonstrably justified limits which means a sufficiently important
objective
 Reasonable and demonstrably justified limits also means proportionality
 Rational connection
 Least drastic means
 Proportionate effect
 Prescribed by Law
 Section 1 of the Charter provides that Charter rights are subject to “such reasonable
limits prescribed by law as can be demonstrably justified in a free and democratic
society”
 So an act that is not legally justified can never be justified by s. 1
 Little Sisters Book and Art Emporium v. Canada (2000)
 Why is this a requirement in s. 1?
 All official action in derogation of rights must be authorized by law in order to preclude
arbitrary and discriminatory action by government
 Citizens must know what is prohibited so they can act accordingly (which means that the
law must be accessible to the public and formulated with sufficient precision)
 Prescribed by Law,
continued

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 “Law” includes statutes (of course) but also delegated legislation such as regulations and
by-laws
 “Law” can also include the common law (see (R. v. Swain (1991))
 “Law” can also include certain binding government policies or rules (as long as
accessible and sufficiently precise) – recall Greater Vancouver Transportation Authority
v. Canadian Federation of Students (2009)
 Limiting law must not be too vague (which relates to the requirement that the “law”
must be sufficiently precise) – see Irwin Toy v. Quebec (1989)
 Reasonable and
Demonstrably Justified
 Section 1 provides that Charter rights are subject to “such reasonable limits prescribed
by law as can be demonstrably justified in a free and democratic society.”
 The requirements (reasonable, demonstrably justified) are not treated separately by the
courts
 So after you find that the limit is prescribed by law, turn to the rest of the Oakes test
 Oakes Test: sets out a pathway to determine whether there are reasonable and
demonstrably justified limits
 Sufficiently important objective (because limiting a Charter right)
 Proportionality
 Rational connection (the law must be rationally connected to the objective)
 Least drastic means (the law must impair the right no more than is necessary to
accomplish the objective)
 Proportionate effect (proportionality between the deleterious and salutary effects of the
measures)
 The “Oakes Test”
 Prescribed by law
 Pressing and substantial objective (R. v. Oakes, para. 69)
 Proportionality Test (R. v. Oakes, para. 70)
 Rational connection
 Minimum impairment
 Proportionate effect
 Pressing and Substantial Objective
 The law must pursue an objective that is sufficiently important to justify limiting a
Charter right
 Sometimes it is difficult to discern the objective of the legislatures at the time the law
was enacted
 RJR MacDonald v. Canada (1995) – what was the objective in banning the advertising of
tobacco products and was it sufficiently important? (remember that tobacco itself was
not banned)
 Vriend v. Alberta (1998) – challenge to Alberta’s human rights legislation, so difficult to
look to the objective of the law because the problem with the law was the omission of
sexual orientation (of course, the objective of the law was to protect human rights, so
the court had to find that the objective for the purposes of analysis was the failure to
include sexual orientation within the scope of protections)

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 R. v. Big M Drug Mart (1985) – federal Sunday closing law – what was the objective?
Compelling the observance of the Christian sabbath (which would infringe freedom of
religion)? Or just to provide a common day of rest (a secular objective)? Note that the
court held in this case that objectives cannot shift over time – the question is the intent
of the legislature at the time of enactment
 What about cost? Ie the limit on the Charter right saves money… See Hogg p. 38-28
 Proportionality –
Rational Connection
 Is the law “rationally connected” to the objective of the law? Causation question.
 “How well the legislative garment has been tailored to suit its purpose”
 See also Benner v. Canada (1997) – law imposed more stringent requirements for
Canadian citizenship on a person born outside Canada before 1977 to a Canadian
mother vs those born to a Canadian father – failed the rational connection test because
the children of Canadian mothers could not be rationally regarded as more dangerous
than the children of Canadian fathers
Minimum Impairment
 The law should impair as little as possible the right or the freedom in question
 Most s. 1 cases turn on this element of the Oakes Test
 Requires a demonstration that the government considered the full range of alternatives
and found them less effective or more restrictive of Charter rights – but note that this
seems to suggest that courts could in theory always strike down law for this reason as
one could always come up with a least drastic way to impair a right, if one uses
imagination
 So need a “margin of appreciation”, according to theorists
Proportionate Effect
 The need for a proportionality between the effects of the measures which are
responsible for limiting the Charter right or freedom and the objective which has been
identified as of sufficient importance
 The SCC has noted that the first stages of the Oakes test all take into account the law’s
purpose (pressing goal, rational connection, minimum impairment); only the final stage
takes “full account of the severity of the deleterious effects of a measure on individuals
or groups” (see Alberta v. Hutterian Brethren of Wilson Colony (2009) – re driver’s
licence photos)
 The Oakes Test in Application to Certain Rights
 Maybe the Oakes Test is too stringent for equality rights? (Andrews v. Law Society of
British Columbia (1989) – case about whether British Columbia’s requirement of
Canadian citizenship for admission to the legal profession infringed s. 15 of the Charter)
 s. 7 Charter breach probably cannot be justified under s. 1 (i.e., a law that is not in
accordance with the principles of fundamental justice probably cannot be justified as a
“reasonable limit”)?

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 Note that the Oakes framework does not apply to discretionary decisions by
administrative tribunals and other decision-makers exercising statutory discretion;
administrative law/judicial review analysis applies
 Part 15
 Equality Rights
 Equality Rights
 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.
 15 (2) Subsection (1) does not preclude any law, program or activity that has as its
object the amelioration of conditions of disadvantaged individuals or groups including
those that are disadvantaged because of race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability.
 Notwithstanding anything in this Charter, the rights and freedoms referred to in it are
guaranteed equally to male and female persons.
 What is “Equality”?
 Four formulations of the idea of equality in s. 15:
 Equal before the law
 Equal under the law
 Right to equal protection
 Right to equal benefit
 So what is “equality”?
 Absolute equality ie treat everyone the same?
 Treat like people alike? (Aristotle)
 Similarly-situated test?
 Formal equality?
 Substantive equality?
 Discrimination
 Section 15 of the Charter guarantees equality “without discrimination” based on certain
grounds, which means that the operative concept is not equality, but discrimination
 What is “discrimination”? The analytical framework first set out by the SCC was as
follows:
 The challenged law imposes (directly or indirectly) on the claimant a disadvantage (in
the form of a burden or withheld benefit) in comparison with other comparable
persons;
 The disadvantage is based on a ground listed or analogous to a ground listed in s. 15;
and
 The disadvantage also constitutes an impairment to the human dignity of the claimant.
(or something else??)
 Listed or Analogous Grounds

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 Was every single legislative distinction open to consideration under s. 15 of the Charter?
Or do the list of grounds in s. 15 provide a threshold barrier that would reduce the flow
of cases that could be considered under s. 15?
 Andrews v. Law Society of British Columbia (1989) – challenge to the statutory
requirement of the province of B.C. that members of the bar had to be citizens of
Canada
 The Andrews case clarified that s. 15 was a prohibition of discrimination, which involved
the imposition of a disadvantage on an individual by reason of the individual’s
possession of a characteristic that was either listed in s. 15 or was analogous to those
listed in s. 15
 In Andrews, citizenship qualified as an analogous ground
 This clarification severely restricted the scope of s. 15
 Listed or Analogous Grounds,
continued
 Listed grounds in s. 15: race, national or ethnic origin, colour, religion, sex, age or mental
or physical disability
 What are analogous grounds? Include personal characteristics of individuals that are
unchangeable (or immutable) (at least, without great difficulty or cost); not voluntarily
chosen; describe what a person is rather than what a person does
 As such, the SCC definition is that an analogous ground is one based on “a personal
characteristic that is immutable or changeable only at unacceptable cost to personal
identity” (Corbiere v. Canada (1999))
 Three analogous grounds have been recognized: citizenship, marital status, sexual
orientation
 Human Dignity
 Something more is required to find discrimination rather than just a disadvantage based
on a listed on analogous ground – what is this mysterious something?? Hinted at by the
SCC in Andrews…
 Law v. Canada (1999) – unanimous SCC decision that provided a new interpretation of s.
15 re age discrimination for survivor benefits
 S. 15 applied only to legislative distinctions based on a listed or analogous ground;
 Discrimination in s. 15 involved an element additional to a simple distinction based on a
listed or analogous ground;
 The additional element was an impairment of “human dignity”.
 Human Dignity
 So many problems with this requirement:
 It seems to take some of the analysis out of the s. 1 stage and bring it forward to the s.
15 breach stage (ie some legislative distinctions based on age, in Law, are reasonable
because they are important, prudent etc.?)
 Human dignity is hard to define!
 Burden rests on the rights claimant to demonstrate that his or her human dignity is at
stake – this is burdensome
 So the SCC seems to have changed its mind…
 R. v. Kapp (2008)

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 R. v. Kapp (2008) – in obiter, the SCC stated that while human dignity is an essential
value underlying the s. 15 equality guarantee, it is difficult and confusing to apply as a
legal test and operates as an additional burden on equality claimants
 So what should the test be? Hogg thinks the best approach is to treat every legislative
distinction on listed or analogous grounds as discrimination under s. 15 (and move the
analysis to s. 1 to see if it survives constitutional scrutiny); however, the courts have not
gone so far in this direction
 Applying R. v. Kapp
 Withler v. Canada (2011) – SCC upheld a statutory pension plan for federal civil servants
which used the age of a plan member at the time of his or her death as a factor in
determining the value of the benefit payable to the dependant; For social benefit
programs, key question is “whether the lines drawn are generally appropriate, having
regard to the circumstances of the persons impacted and the objects of the scheme”
(para. 67) (ameliorative nature of scheme as a whole is relevant) – does this provide
guidance as opposed to looking at human dignity?
 Quebec v. A (2013) - (1) Does the law create a distinction based on an enumerated or
analogous ground? If so, (2) Does the distinction have the effect of perpetuating
arbitrary disadvantage? Case about married vs common law spouses.
 Disadvantage
 Recall that the analytical framework under s. 15 is as follows:
 The challenged law imposes (directly or indirectly) on the claimant a disadvantage (in
the form of a burden or withheld benefit) in comparison with other comparable
persons;
 The disadvantage is based on a ground listed or analogous to a ground listed in s. 15;
and
 The disadvantage also constitutes an impairment to the human dignity of the claimant.
 How to know if you are at a disadvantage? You must compare yourself to others ie use a
comparator group
 Select the right comparator group
 Then compare the treatment provided by law
 Comparator Groups
 In order to prove discrimination, one must compare the legal position of the claimant
and that of other people to whom the claimant might legitimately invite comparison –
how to select the right comparator group?
 Find the group that shares with the claimant all the characteristics that qualify for the
benefit (or burden) except for the personal characteristic that is listed or analogous
 See Auton v. British Columbia (2004) – Hogg p. 55-36.3
 Choosing the right comparator group is often essential to the outcome of the case
 Measuring Disadvantage
 Once the correct comparator group has been selected, it is necessary to compare the
treatment provided by the law to the claimant with the treatment of the comparator
group
 Is this a subjective or objective analysis? See Hogg p. 55-36.7 – 55-47.
 Direct and Indirect Discrimination

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 A law can be discriminatory on its face (direct), in its effect (indirect) or in its application
 The concern is with substantive equality
 Discrimination can be unintended
 Affirmative Action
 Section 15(2) of the Charter provides:
 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.
 End Day 3
CLASS 4:
 Part 16
 Fundamental Justice
 Section 7 of the Charter
 Sections 7 – 14 of the Charter are called “Legal Rights” (which does not have a specific
meaning)
 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.
 Benefit of Section 7
 Section 7 applies to “everyone”
 Does this include a corporation?
 What about immigrants to Canada?
 A foetus?
 Life, Liberty and
Security of the Person
 What is “life”?
 Seems obvious, but the state does not actually threaten life directly very often (ie death
penalty)
 Can have a wider definition ie excessive wait times for treatment in the public health
care system; the prohibition on physician-assisted suicide (because some persons took
their own lives prematurely)
 What is “liberty”?
 Physical liberty ie freedom from physical restraint
 Obviously includes imprisonment, as well as any law that imposes the penalty of
imprisonment (even if the sentence is discretionary)
 Also includes statutory duties to submit to fingerprinting, to produce documents, to give
oral testimony and not loiter in or near schoolgrounds, a change in terms of a prison

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sentence and the transfer from minimum security to medium security prison - these
also qualify as deprivations of liberty attracting fundamental justice (i.e. these laws must
conform to the principles of fundamental justice)
 Does not include a law that imposes only a fine, or suspension of a driver’s licence
 Does not include deportation of a non-citizen
 The SCC has extended the right to “liberty” beyond just physical restraint
 It applies whenever the law prevents a person from making “fundamental personal
choices”
 Carter v. Canada (2015) - physician-assisted suicide
 “Liberty” does not include economic liberty or political liberty
 What is included in “security of the person”?
 Spanking children adversely affects children’s security of the person (Canadian
Foundation for Children, Youth and the Law v. Canada (2004) – note that the Criminal
Code provision infringed s. 7 but the SCC found no breach of the principles of
fundamental justice so the provision was upheld)
 Restricting access to abortion (R. v. Mortgentaler (No. 2) (1988))
 Wait times for surgery etc. in the public health care system in Quebec (Chaoulli v.
Quebec (2005))
 Making certain prostitution-related activities a criminal offence (Canada v. Bedford
(2013))
 “Security of the Person”, continued
 It is clear that “security of the person” encompasses protecting physical integrity
 What about psychological integrity?
 New Brunswick v. G.(J.) (1999) – removing children from parents and placing them with
the state affects the security of the person of the parent because the government action
would constitute a “serious interference with the psychological integrity of the parent”
 Blencoe v. British Columbia (2000) – unreasonable delay by the BC Human Rights
Commission in dealing with complaints of sexual harassment against the accused did
not quality because not a severe enough impact (but could trigger s. 7 in another case if
a person is distressed enough)
 Gosselin v. Quebec (2002) – failure to extend the same welfare benefits to those under
age 30 did not trigger s. 7 because s. 7 has not been extended to protect economic
rights and because s. 7 prohibits state deprivations of security of the person and does
not impose a positive obligation on the state to ensure that each person enjoys life,
liberty and security of the person
 Section 7 does not include property (this was a deliberate exclusion)
 Fundamental Justice
 Section 7 of the Charter provides that a deprivation of life, liberty or security of the
person is only a breach of s. 7 if the deprivation is not in accordance with “the principles
of fundamental justice”
 What does this mean?

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 Just protection for procedural rights i.e. right to a hearing, to unbiased adjudication and
a fair procedure (so-called, “natural justice”)?
 Or do the principles of fundamental justice include something more substantive?
 Fundamental Justice, continued
 B.C. Motor Vehicle Reference (1985) – a reference by the government of B.C. to
determine the validity of a provision in the Motor Vehicle Act which made it an offence
to drive a car while prohibited from driving or driving with a suspended licence – it was
an “absolute liability” offence, meaning guilt is established just by driving, whether you
knew about the licence suspension or not and the mandatory penalty was imprisonment
 SCC held it was a breach of fundamental justice to impose a term of imprisonment for
an offence that lacked mens rea (a guilty mind) – this was a substantive injustice
 Accordingly, s. 7 prohibits substantive as well as procedural injustice
 Fundamental Justice, continued
 B.C. Motor Vehicle Reference (1985) – Three reasons for extending fundamental justice
beyond procedure (as it appears that the framers of the Constitution thought it just
meant natural justice / issues of procedure) – per Lamer J.
 The words “fundamental justice” are broader in scope than “natural justice” and the
framers could have used either phrase
 The broader interpretation expands the protection of life, liberty and security of the
person
 Section 7 is a general residuary clause for all legal rights of the Charter in ss. 7 – 14 (but
this was a contentious reason)
 Fundamental Justice, Defined
 The SCC definition of fundamental justice in B.C. Motor Vehicle Reference: “the
principles of fundamental justice are to be found in the basic tenets of the legal system”
(???)
 R. v. Malmo-Levine (2003) – challenge to the criminalization of possession of marijuana,
which included the penalty of imprisonment – was the “harm principle” (ie don’t
criminalize conduct that does not cause harm to others) a principle of fundamental
justice?
 The SCC held that there are 3 requirements for a rule to qualify as a basic tenet of the
legal system and therefore as a principle of fundamental justice:
 The rule must be a “legal principle”;
 There must be a “significant societal consensus that it is fundamental to the way in
which the legal system ought fairly to operate”;
 The rule must be capable of being “identified with sufficient precision to yield a
manageable standard”.
 The “harm principle” did not meet any of the three requirements so the criminalization
of possession of recreational marijuana was upheld
 Absolute and Strict Liability
 Absolute Liability
 The offence consists of simply doing the act itself; where no requirement of fault (mens
rea or negligence)

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 Recall B.C. Motor Vehicle Reference (1985) –absolute liability where the offence carries
the penalty of imprisonment is a denial of the principles of fundamental justice
 However, in subsequence cases, an offence is not always struck down as a violation of s.
7, where the court can exercise some remedial options such as interpreting the offence
as one of strict liability instead of absolute liability (ie allow a defence of due diligence)
or where the court can read in a mens rea element into the offence (see for example R.
v. Hess (1990))
 Absolute and Strict Liability,
continued
 Strict Liability
 The offence consists of simply doing the prohibited act (like absolute liability), but there
is a defence of due diligence, which actually means that there is a fault requirement of
negligence (this is known as a “reverse onus”)
 R. v. Wholesale Travel Group (1991) – corporation charged with misleading advertising
under a strict liability offence – the accused corporation argued that it is a violation of
fundamental justice to place an individual in jeopardy of imprisonment for any lesser
fault than mens rea
 Not so fast! The SCC held that the offence was not really a “true crime” but was really a
“regulatory offence” or a “public welfare offence”, so fundamental justice does not
require that mens rea be an element of the offence (even though the accused could go
to prison) – later cases may be abandoning this reasoning (see Hogg pp. 47-30 to 47-39)
 Murder
 Issue: an old Criminal Code definition of murder that included the so-called felony-
murder rule: if an accused caused a death in the course of committing certain serious
offences, including robbery, while armed with a weapon, then the accused was guilty of
murder
 R. v. Vaillancourt (1987) – accused charged with murder as the result of a poolroom
robbery in which the accused’s accomplice shot and killed a customer of the poolroom
where the accused knew his accomplice was carrying a gun and he was part of the
robbery
 SCC held that the felony-murder rule was a violation of fundamental justice under s. 7 of
the Charter because before an accused can be found guilty of murder, he must have
mens rea (a guilty mind) with respect to the death (did not say if subjective or objective
mens rea – SCC later clarified that subjective mens rea is required for murder)
 Big reason behind this was the stigma attached to being a murderer
 Unforeseen Consequences
 Some Criminal Code offences set out a different penalty depending only on the
consequences of the act, as opposed to the mental state of the accused
 Example: dangerous driving vs. dangerous driving causing bodily harm vs. dangerous
driving causing death
 Issue: is it a breach of fundamental justice to make an unintended and unforeseen
consequence the basis of a more serious charge and stricter punishment? No (see R. v.
DeSousa (1992) Hogg p. 47-44).

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 Murder vs. attempted murder are different because both carry stigma (so both require
fault based on a subjective standard)
 Involuntary Acts
 Automatism, duress, intoxication
 In principle, a person should not be convicted of a criminal offence for an act that is not
voluntary
 R. v. Parks (1992) – sleepwalking killer was acquitted
 R. v. Ruzic (2001) – woman acquitted after being forced to carry drugs through the
airport by criminals who threatened harm to her mother in Belgrade
 R. v. Daviault (1994) – extreme intoxication was a successful defence to a charge of
sexual assault; Parliament amended the Criminal Code after a public outcry making
extreme self-induced intoxication the fault required for the conviction of offences of
violence; Ontario court in August 2018 ruled this law unconstitutional (R. v. McCaw
(2018))
 R. v. Robinson (1996) – murder while intoxicated; if drunkenness raises a reasonable
doubt as to whether the accused possessed the specific intent to murder, the accused
was entitled to be acquitted
 Fundamental Justice, Applied to Laws
 Laws that impinge on life, liberty or security of the person must not be:
 Overbroad
 Grossly disproportionate
 Arbitrary
 Vague
 Wrong
 Overbroad Laws
 A law that is broader than necessary to accomplish its purpose is an overbroad law
 Overbreadth is a breach of the principles of fundamental justice
 R. v. Heywood (1994) – involved a Criminal Code provision that made it an offence for a
person who had previously convicted of sexual assault to be found loitering in or near a
schoolground, playground etc.; the SCC found the law was overbroad and so it offended
the principles of fundamental justice
 The doctrine requires the law to be no broader than necessary to accomplish the
purpose of the law (but note that the purpose of the law is found by the Court, which
gives the judges a lot of discretion!)
 Hogg notes the problematic use by the Court of hypothetical cases
 See also R. v. Bedford (2013) (prostitution laws) and Carter v. Canada (2015) (assisted
suicide)
 Disproportionate Laws
 A law that has a connection to its objective, but the s. 7 deprivation is so severe as to be
out of all proportion to the objective, then the s. 7 deprivation is classified as “grossly
disproportionate”
 R. v. Malmo-Levine (2003) –(marijuana possession); the SCC held that the doctrine of
disproportionality requires the court to determine:

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 Whether a law pursues a legitimate state interest (yes, for possession of marijuana) and,
if yes;
 Whether the law is grossly disproportionate to the state interest (no, according to the
SCC).
 See also Canada v. PHS Community Services Society (Insite) (2011) (safe injection site)
and Canada v. Bedford (2013) (prostitution)
 Arbitrary Laws
 If a law has no connection to its objective, then the s. 7 deprivation will be arbitrary
 Chaoulli v. Quebec (2005) – constitutional challenge to Quebec’s prohibition on the
purchase of private health insurance; the purpose and effect of the prohibition was to
make the universal health care plan exclusive (even though there were delays in getting
timely treatment in the public health care system, a breach of the s. 7 right to life and
security of the person)
 SCC split evenly: 3 judges held that a law is arbitrary if it “lacks a real connection on the
facts to the purpose the law is said to serve”; there was evidence that in other
jurisdictions parallel access to private care did not injure the public health care system
so the law was indeed arbitrary
 3 other judges relied on expert evidence to find that the development of a private
system would divert resources away from the public system, so the law was not
arbitrary
 Vague Laws
 A vague law violates the principles of fundamental justice because it offends two
principles that are fundamental to the legal system:
 A vague law does not provide fair notice to persons of what is prohibited, which makes
it difficult for them to comply with the law
 A vague law does not provide clear standards for those entrusted with enforcement,
which may lead to arbitrary enforcement
 What constitutional standard of precision is required?
 Note: the doctrine of vagueness is not confined to s. 7
 Part 17
 Aboriginal and Treaty Rights
 Indigenous People
 First Nations, Métis, Inuit
 Haida Nation v. British Columbia (2004)
 “Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were
never conquered. Many bands reconciled their claims with the sovereignty of the
Crown through negotiated treaties. Others, notably in British Columbia, have yet to do
so. The potential rights embedded in these claims are protected by s. 35 of the
Constitution Act, 1982. The honour of the Crown requires that these rights be
determined, recognized and respected. This, in turn, requires the Crown, acting
honourably, to participate in processes of negotiation...” (para 25)
 Early Canadian State
 Indigenous peoples have occupied the land known as Canada for thousands of years

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 Royal Proclamation of 1763: when the British won control of New France in 1763, the
Proclamation issued by King George III forbade settlers from encroaching on Indigenous
lands; many treaties negotiated (often “peace and friendship” treaties)
 As of at least 1867 (the year the BNA Act was enacted), there was explicit recognition
that Indigenous and non-Indigenous legal systems operated concurrently
 Canadian Constitution and Indigenous Legal Rights
 Shifts over the last few hundred years in how governance and jurisdictional powers are
shared between Indigenous and non-Indigenous governments
 Erosion of Indigenous law and governance systems
 More and more British settlers coming to North America
 Massive population losses within Indigenous communities
 Rise of racism and a push toward assimilation
 Erosion of treaty promises
 Residential schools
 Recently, trend toward a reconciliation approach?
 Constitutional Provisions
 S. 91(24) of the Constitution Act, 1867 confers upon the federal Parliament the power to
make laws in relation to “Indians, and lands reserved for the Indians” (this answers the
federalism question)
 S. 35(1) of the Constitution Act, 1982 gives constitutional protection to the “existing
aboriginal and treaty rights of the aboriginal peoples of Canada”.
 S. 35(2) of the Constitution Act, 1982 provides that: “In this Act, ‘aboriginal peoples of
Canada’ includes the Indian, Inuit and Métis peoples of Canada”.
 Federal Legislative Power
 S. 91(24) of the Constitution Act, 1867 confers upon the federal Parliament the power to
make laws in relation to “Indians, and lands reserved for the Indians”.
 Two powers mentioned in s. 91(24)
 “Indians” – the federal Indian Act defines the term and establishes a register; known as
“status Indians”; also includes non-status Indians including Métis and Inuit (Daniels v.
Canada (2016) and s. 35(2) of the Constitution Act, 1982)
 “Lands reserved for the Indians” – includes reserves and the huge area of land
recognized by the Royal Proclamation of 1763 and indeed all lands held pursuant to
aboriginal title; this means that only the federal Parliament has the power to extinguish
aboriginal title
 Provincial Legislative Power
 Issue: do provincial laws apply to Indians and lands reserved for Indians?
 Yes. The general rule is that provincial laws apply to Indians and lands reserved for the
Indians (look at “pith and substance” of the law
 Sometimes the provincial law will be valid because it is exercised over property and civil
rights in the province (s. 92(13)) – see Kitkatla Band v. British Columbia (2002))
 There are five exceptions to this rule:
 Singling out – if a province singled out Indians or Indian reserves, the law would be
challenged as one that is within federal power
 Provincial Legislative Power, continued

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 “Indianness” – a branch of interjurisdictional immunity: a provincial law that affects an

integral part of primary federal jurisdiction over Indians and lands reserved for the
Indians will be inapplicable to Indians. In Tsilhqot’in Nation v. British Columbia (2014),
the SCC clarified that provincial laws do apply to aboriginal and treaty rights, although
any infringement of those rights would have to serve a compelling and substantial
objective and otherwise satisfy the framework in R. v. Sparrow (1990) (Sparrow
framework? s. 35 authorizes limits on treaty rights using a similar framework as the
Oakes test)
 Provincial Legislative Power, continued
 Paramountcy – if a provincial law is inconsistent with a provision of the Indian Act (or
any other federal law), the provincial law is rendered inoperative by the doctrine of
federal paramountcy
 Natural Resource Agreements – the right of Indians to take game and fish for food
 Section 35 of the Constitution Act, 1982 – provides that the “existing aboriginal and
treaty rights are recognized and affirmed”; the SCC has affirmed that, despite the
wording of s. 35, provincial laws still apply to aboriginal and treaty rights, but subject to
the restriction that the law must serve a compelling and substantial objective (like the
Oakes test – known as the Sparrow framework – stay tuned).
 S. 88 of the Indian Act
 Section 88 of the Indian Act provides as follows:
 Subject to the terms of any treaty and any other Act of the Parliament of Canada, all
laws of general application from time to time in force in any province are applicable to
and in respect of Indians in the province, except to the extent that such laws are
inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and
except to the extent that such laws make provision for any matter for which provision is
made by or under this Act.
 S. 88 makes it clear that provincial “laws of general application” apply to Indians, which
operates as a federal adoption, or incorporation by reference, of provincial laws, making
the provincial laws applicable as part of federal law.
 S. 35 of the Constitution Act and the Doctrine of Reconciliation
 The rights of Indigenous peoples were entrenched in the Constitution Act, 1982
 one of the two fundamental purposes of s. 35 was the achievement of a just and lasting
settlement of aboriginal claims
 Section 35 was meant to provide a solid constitutional base upon which subsequent
negotiations can take place
 affords aboriginal peoples constitutional protection against provincial legislative power
 Aboriginal and Treaty Rights
 S. 35(1) of the Constitution Act, 1982 gives constitutional protection to the “existing
aboriginal and treaty rights of the aboriginal peoples of Canada”.
 Let’s examine aboriginal right and treaty rights in turn…
 Aboriginal Rights
 What are “aboriginal rights”?

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 They are rights held by aboriginal peoples, not by virtue of Crown grant, legislation or
treaty, but by reason of the fact that aboriginal peoples were once independent, self-
governing entities in possession of most of the lands now making up Canada.
 Aboriginal Rights
 Calder v. A.G.B.C. (1973) – first case where the SCC recognized that aboriginal rights
survived European settlement.
 R. v. Sparrow (1990) – SCC recognized the aboriginal right of a member of the
Musqueam Indian Band to fish for salmon in the Fraser River, where his ancestors fished
“from time immemorial” (based on s. 35 of the Constitution Act, 1982); the SCC
discussed the fiduciary duty owed by the Government; this confirms that aboriginal
rights, including the fiduciary duty, are constitutionally guaranteed through s. 35.
 Definition of Aboriginal Rights
 “Aboriginal rights” are rights held by aboriginal peoples, not by virtue of Crown grant,
legislation or treaty, but by reason of the fact that aboriginal peoples were once
independent, self-governing entities in possession of most of the lands now making up
Canada.
 But how do we know what they are?
 R. v. Van der Peet (1996) – set out the legal test to identify an existing aboriginal rights
within the meaning of s. 35 of the Constitution Act, 1982
 “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 asserting the
right”
 In order to be “integral”, the practice must be of “central significance” to the aboriginal
society: it must be a “defining” characteristic of the society
 The practice must have developed before “contact” i.e. the arrival of Europeans in
North America (but could evolve over the years)
 Definition of Aboriginal Rights
 Issue: can a practice that was adopted by an aboriginal people purely for survival count
as one that was integral to distinctive culture?
 R. v. Sappier (2006) – harvesting wood to build shelter (which any society would do to
survive) – does this meet the Van der Peet test?
 SCC said yes “
 “It is the practice, along with its associated uses, which must be allowed to
evolve. The right to harvest wood for the construction of temporary shelters must be
allowed to evolve into a right to harvest wood by modern means to be used in the
construction of a modern dwelling Any other conclusion would freeze the right in its
pre-contact form. (at para 48)”
 Aboriginal Self-Government
 Aboriginal people were living in self-governing communities before the arrival of
Europeans
 What does the right look like now?
 R. v. Pamajewon (1996) – apply the Van der Peet test i.e. the aboriginal right of self-
government extends only to activities that took place before European contact, and
then only to those activities that were an integral part of aboriginal society

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 Delgamuukw v. British Columbia (1997) – Note that self-government and aboriginal title
go together because title is a communal right, and uses to which land is put are decided
communally… (so let’s look at aboriginal title…)
 Aboriginal Title
 “Aboriginal title” is the right to the exclusive occupation of land, which permits the
aboriginal owners to use the land for a variety of purposes.
 Delgamuukw v. British Columbia (1997) – Test = aboriginal title is proved by showing
that (1) an aboriginal people occupied the land prior to sovereignty; (2) if present
occupation is relied on for proof of occupation there must be continuity; and (3) that the
occupation is exclusive (which can be proved through oral histories)
 Note: the Van der Peet test (“integral to distinctive culture”) is not required
 Aboriginal title is sui generis (one of a kind), meaning there are differences between
aboriginal title and non-aboriginal title (see Hogg pp. 28-32 to 28-34)
 Aboriginal Title
 Tsilhqot’in Nation v. British Columbia (2014): - SCC ruled in favour of the Tsilhqot'in First
Nation, granting it land title to 438,000 hectares of land; First time a court has
recognized Aboriginal title to a specific land area in Canada. Key findings:
 Radical or underlying Crown title is subject to Aboriginal land interests where they are
established.
 Aboriginal title gives the Aboriginal group the right to use and control the land and enjoy
its benefits.
 Governments can infringe Aboriginal rights conferred by Aboriginal title but only where
they can justify the infringements on the basis of a compelling and substantial purpose
and establish that they are consistent with the Crown’s fiduciary duty to the group.
 Resource development on claimed land to which title has not been established requires
the government to consult with the claimant Aboriginal group.
 Governments are under a legal duty to negotiate in good faith to resolve claims to
ancestral lands.
 See also Hogg pp. 28-32 to 28-34 for the differences between Aboriginal and non-
Aboriginal title
 Aboriginal Rights Recap
 s. 35(1) protects Aboriginal rights as follows:
 Activity-specific rights
 Sparrow (1990), Van der Peet (1996)
 See Hogg section 28.5(a),(b)
 Self-government rights
 Pamajewon (1996), Delgamuukw (1997)
 Hogg 28.5(c)
 Aboriginal title
 Delgamuukw (1997), Tsilhqot’in (2014)
 Hogg 28.5(d)
 Extinguishing
Aboriginal Rights
 Aboriginal rights, including aboriginal title, can be extinguished in two ways:

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 By surrender (must be voluntary), and

 By constitutional amendment (which cannot be unilateral by government).
 Note: s. 35 of the Constitution Act, 1982 removed the power to extinguish aboriginal
rights by legislation
 Treaty Rights
 What is a “treaty”?
 Not a treaty at international law; not a contract
 A “treaty” is an agreement between the Crown and an aboriginal nation with the
following characteristics:
 Parties: the Crown and an aboriginal nation
 Agency: the signatories have the authority to bind
 Intention to create legal relations: the parties must intend to create legally binding
obligations
 Consideration: the obligations must be assumed by both sides, so that the agreement is
a bargain
 Formality: there must be a certain measure of “solemnity”
 Interpretation of
Treaty Rights
 Treaties should be “liberally construed and doubtful expressions resolved in favour of
the Indians”
 Why? unequal bargaining power; fiduciary duty
 R. v. Marshall 1 (1999) – issue was whether a Mi’kmaq Indian had a treaty right to catch
and sell eels (which he was doing without a licence); the SCC gave a generous
interpretation of the treaty holding that a “peace and friendship” treaty which said
nothing directly about fishing did provide a treaty right to catch and sell eels
 Extinguishing Treaty Rights
 Treaty rights, just like aboriginal title, can be extinguished in two ways:
 By surrender (must be voluntary), and
 By constitutional amendment (which cannot be unilateral by government).
 Note: s. 35 of the Constitution Act, 1982 removed the power to extinguish treaty rights
by legislation
 Section 35,
Constitution Act, 1982
 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are
hereby recognized and affirmed.
 (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis
peoples of Canada.
 (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist
by way of land claims agreements or may be so acquired.
 (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights
referred to in subsection (1) are guaranteed equally to male and female persons.
 S. 35 is Outside of Charter Rights
 The Charter of Rights and Freedoms occupies ss. 1-34 of the Constitution Act, 1982
 Section 35 is outside the Charter of Rights

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 What does this mean?

 No qualification under s. 1 of the Charter (i.e. no Oakes test)
 Not subject to the s. 33 override (i.e. the notwithstanding clause)
 However, not enforceable under s. 24
 “Existing” Rights
 S. 35 protects “existing” aboriginal and treaty rights (s. 35(1) of the Constitution Act,
1982)
 Some treaty rights come into existence after 1982 (but not aboriginal rights, as they
must pre-date European settlement) – are they protected? Yes…
 S. 35(3) clarifies that “for greater certainty, in subsection (1) “treaty rights” include
rights that now exist by way of land claims agreement (i.e. a treaty) or may be so
acquired
 R. v. Sparrow (1990) – clarified that “existing” meant “unextinguished”
 S. 35 and Aboriginal Rights
 To recap, s. 35(1) protects Aboriginal rights
 Activity-specific rights
 Sparrow (1990), Van der Peet, (1996)
 Hogg sections 28.5(a),(b) and
 Self-government rights
 Pamajewon (1996), Delgamuukw (1997)
 Hogg section 28.5(c)
 Aboriginal title
 Delgamuukw (1997), Tsilhqot’in (2014)
 Hogg section 28.5(d)
 s. 35 and Treaty Rights
 To recap, s. 35(1) protects Treaty rights
 Marshall 1 (1999), R. v. Badger (1996)
 Includes historical treaties and those entered into after 1982 (s. 35(3))
 Treaties are constitutionally entrenched as soon as concluded
 See Hogg sections 28.6, 28.8(g)
 Sparrow Framework
 The rights protected by s. 35 are not absolute. They are not subject to s. 1 of the
Charter, but they have been found to have limits, as set out in Sparrow
 To invoke s. 35, the claimant must demonstrate that the legislation results in prima
facie interference with an existing aboriginal or treaty right (purpose/effect)
 is the limitation unreasonable
 does the regulation impose undue hardship
 does it deny to the holders of the right their preferred means of exercising that right
 Sparrow Framework
 If interference found, onus is on Crown to show it is justifiable, by establishing:
 the existence of a compelling and substantial legislative objective; and
 that the infringement is consistent with the honour of the Crown, including its fiduciary
duties arising out of its "special trust relationship" with Aboriginal peoples.
 Sparrow Framework, Modified

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 R v. Gladstone (1996) – SCC modifies Sparrow, making it easier for government to justify
infringing s. 35
 Sparrow notion of priority of access should be limited to cases where the Aboriginal
right in question is "internally limited”
 Crown can pursue a number of (vague) objectives regarding commercial rights /those
without inherent limit: regional economic fairness, non-aboriginal’s historical reliance
upon resources, fairness in distribution of scarce resource, conservation … (deference to
government/low threshold of judicial review)
 Duty to Consult
 Duty to engage in meaningful consultation and accommodation where contemplated
action could adversely affect an aboriginal right or title
 Imposed by s. 35
 Part of a process of reconciliation flowing from the Crown’s duty of honourable dealing:
see Haida Nation v. British Columbia (2004)
 Federal Court of Canada – Trans Mountain pipeline decision (Tsleil-Waututh Nation v.
Canada (Attorney General (2018))
 Recently: Coldwater First Nation v. Canada (Attorney General) (2020) FCA 34
 Remedies for Breach of s. 35
 Generally, a law that has been held to infringe s. 35 will be a nullity and will not
authorize any regulatory action
 Remedies could be a declaration that a law is invalid and can even result in damages in
tort, contract or breach of fiduciary duty
 Section 25 of the
Constitution Act, 1982
 S. 25 is part of the Charter
 Does not create any new rights
 Makes it clear that the Charter is not to be construed as derogating from “any
aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of
Canada” (i.e. it is an interpretive provision)
 Section 35.1 of the Constitution Act, 1982
 Concerns constitutional amendment
 Section 35.1 declares that the federal and provincial governments are committed in
principle that, before any amendment is made to s 91(24) or to ss. 35 or 25, a
constitutional conference will be convened to which representatives of the aboriginal
peoples of Canada will be invited to participate in discussions of the proposed
amendment
 End Day 4
CLASS 5:
 Part 18
 Freedom of Expression

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 Section 2(b) of the Charter:

 Fundamental Freedoms
 2. Everyone has the following fundamental freedoms:
 ---
 (b) freedom of thought, belief, opinion and expression, including freedom of the press
and other media of communication.
 Freedom of expression is not absolute
 Section 2(b) of the Charter is subject to s. 1 (of course), which means that a law that
limits freedom of expression will be valid under s. 1 if it comes within the s. 1
framework: “such reasonable limits prescribed by law as can be demonstrably justified
in a free and democratic society”.
 Charter analysis is in two stages:
 Ask, does the law (or action) limit freedom of expression?
 If yes, does the law satisfy the standards of justification under s. 1 (i.e. is the law saved
by s. 1)?
 Note: most freedom of expression cases are resolved at stage 2 of the analysis (s. 1)
 What is the rationale for protecting freedom of expression?
 The right is broad
 Expression required in a democracy
 Political speech is arguably at the core of s. 2(b)
 Expression as an instrument of truth (free exchange of ideas)
 Expression as an instrument of personal fulfilment (including art, music, dance – even
child pornography? See R. v. Sharpe (2001))…
 R. v. Sharpe (2001) – child pornography
 “I turn first to consider the law’s application to self-created works of the imagination,
written or visual, intended solely for private use by the creator. The intensely private,
expressive nature of these materials deeply implicates s. 2(b) freedoms, engaging the
values of self-fulfilment and self-actualization and engaging the inherent dignity of the
individual . . Personal journals and writings, drawings and other forms of visual
expression may well be of importance to self-fulfilment. . . As stated in Irwin Toy, supra,
at p. 976, “the diversity in forms of individual self-fulfilment and human flourishing
ought to be cultivated in an essentially tolerant, indeed welcoming, environment” (at
para. 107).
 Meaning of Expression
 What is “expression”?
 SCC defines it as follows: “Activity is expressive if it attempts to convey meaning”.
 Includes pretty much everything (even parking a car??)
 What about “expression” that is also a crime i.e. communicating for the purposes of
prostitution which is a crime under the Criminal Code. Should this kind of expression be
protected expression under s. 2(b)?
 What about violence? Threats of violence? Depictions of violence?

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 Can we decipher a governing principle in the definition of “expression”?

 Content Neutrality
 SCC: the content of a statement cannot deprive it of the protection accorded by s. 2(b),
no matter how offensive it may be
 Why?
 If the content of the expression matters in terms of whether it will be protected, it
defeats the purpose of protecting expression
 Therefore, hate speech is protected speech (see R. v. Keegstra (1990))
 Also, 2(b) expression extends to deliberate falsehoods, including holocaust denials (see
R. v. Zundel (1992) and false, misleading and deceptive tobacco advertising (Canada v.
JTI-Macdonald Corp. (2007))
 But according to the SCC, “not all expression is equally worthy of protection”, which
becomes relevant only at the s. 1 stage of the analysis
 Content Neutrality and Section 1
 High / low value of expression
 Strict s. 1 analysis where expression at the core of s. 2(b)
 Relaxed s. 1 analysis where expression is not closely linked to rationales underlying s.
2(b)
 See hate speech cases
 Role of the State: “singular antagonist” or protector
 Strict s. 1 analysis where state is the singular antagonist (e.g. restrictions on legal rights,
ss. 7-14)
 Relaxed s. 1 analysis where state acts as protector, which is the case where the state:
 (i) makes decisions about competing interests
 (ii) decides how to allocate scarce resources
 (iii) intervenes to protect vulnerable parties
 Ways of Limiting Expression
 Prior restraint on publication (i.e. censorship)
 Border control (the importation of certain materials – see Little Sisters Book and Art
Emporium v. Canada (2000))
 Penal prohibition (i.e. making perjury or counselling suicide a crime)
 Prohibition against discrimination under a human rights statute
 Civil prohibition (i.e. defamation, breach of confidentiality agreements)
 Forced expression (i.e. in advertising; an adjudicator forcing an employer to write a
letter of reference; oath-taking etc.)
 Language requirements (i.e. sign laws in Quebec)
 Time, manner and place of expression (i.e. restrictions on right to protest)
 Commercial Expression
 “Commercial expression” = expression that is designed to promote the sale of goods
and services
 It is subject to much regulation because of the public need to forbid false or misleading
claims, to require warnings of danger, for the purposes of disclosure (ie food
ingredients) etc.
 Why should commercial expression be protected under s. 2(b) of the Charter?

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 Commercial Expression, continued

 Ford v. Quebec (1988) – language case - Quebec sign laws which prohibited any English
signs; the SCC held that commercial expression is protected by s. 2(b) (and, in this case,
not saved by s. 1 – but s. 33 notwithstanding clause)
 Irwin Toy v. Quebec (1989) – advertising case – Quebec law prohibited all commercial
advertising directed at children under age 13 years; the SCC held that commercial
advertising was protected by s. 2(b) and the law was upheld under s. 1 by a majority
 See also RJR-MacDonald v. Canada (1995) – advertising case - (at Hogg p. 43-24)
 Commercial Expression, continued
 R. v. Guignard (2002) – signs case – Quebec by-law prohibited advertising signs and
billboards except in industrial zones and the case involved a protest sign against a
company on a person’s lawn – infringed s. 2(b) and not saved by s. 1
 Prostitution Reference (1990) – prostitution is lawful in Canada but the Criminal Code
made it an offence to communicate in public for the purposes of engaging in
prostitution – infringed s. 2(b) but saved by s. 1 (note that the law was struck down later
in Canada v. Bedford (2013), but on the basis of s. 7, not s. 2(b))
 Picketing
 Dolphin Delivery (1986) – court injunction prohibiting members of a union from
picketing a workplace of a firm that was not their employer (“secondary picketing”)
 The court in B.C. found it to be a tort (an inducement to breach of contract) and the
injunction was issued to stop the tort – was this a breach of s. 2(b)?
 The SCC held that the Charter had no place between private parties, but in obiter, the
expression element of picketing was affirmed (though the prohibition against secondary
picketing would be saved by s. 1 to prevent the spread of industrial conflict)
 Hate Propaganda
 R. v. Keegstra (1990) – Hate propaganda is prohibited by the Criminal Code, which
makes it an offence to wilfully promote hatred against “any section of the public
distinguished by colour, race, religion or ethnic origin”; schoolteacher who made anti-
Semitic statements to his students and charged under the Criminal Code; breach of s.
2(b); the Criminal Code provision was saved by s. 1 (by a slim majority)
 R. v. Zundel (1992) – crime in the Criminal Code of “spreading false news”; pamphlet
published denying the Holocaust; provision struck down as a violation of s. 2(b) that
could not be saved by s. 1
 What explains the different outcome in these two cases?
 Hate Propaganda
 Saskatchewan v. Whatcott (2013) – claimant distributed four flyers containing messages
that condemned homosexuality; a tribunal issued an order preventing the claimant from
distributing the flyers based on the Human Rights Code which prohibited publication of
any representation that “exposes or tends to expose to hatred, ridicules, belittles or
otherwise affronts the dignity of any person or class of persons based on a prohibited
ground”
 The SCC found that the provision was a limit on freedom of expression; was it saved by
section 1?

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 the SCC severed the words “ridicules, belittles, or otherwise affronts the dignity” and
just left in the words “hatred” – if the provision was just restricted to hate speech, then
it was saved by s. 1 (otherwise it would have been not rationally connected to the
objective of prohibiting discrimination and also not overbroad and therefore
proportionate)
 Defamation
 Hill v. Church of Scientology (1995) – Crown attorney brought an action for defamation
against the Church of Scientology and its lawyer who, in a press conference, had falsely
claimed that the plaintiff breached a court order; SCC held that false and injurious
statements were outside the core values protected by s. 2(b) and were not deserving of
much protection
 Grant v. Torstar Corp. (2009) – action against Toronto Star newspaper for an article was
successful at trial but overturned by SCC; defence of “responsible communication on
matters of public interest” which modified law on defamation; overturned Hill on the
issue of whether defamatory statements were outside the core values protected by s.
2(b)
 Defence of “Responsible Communication”
 From Grant v. Torstar Corp. (2009) – SCC held that there are two elements to the
defence of “responsible communication”:
 The publication must be on a matter of “public interest”, which is for the judge to
decide; and
 The publication must be “responsible” (i.e. where the publisher exercised due diligence
in trying to verify the defamatory allegation), which is for the jury to decide.
 Pornography
 R. v. Butler (1992) – accused operated a sex shop and was found guilty of various
charges of selling obscene material and possessing obscene material for sale which was
prohibited under the Criminal Code; SCC held that the prohibition of obscenity offended
s. 2(b) of the Charter because there should be no content-based restrictions on
expression; however, the Criminal Code provision was saved by s. 1
 R. v. Sharpe (2001) – accused challenged the constitutionality of the Criminal Code
offence of possession of child pornography (and raised the issue of fictional stories
written by the accused); the SCC held that the offence was a limit on s. 2(b) but was
upheld under s. 1
 Access to Public Property
 Issue: does s. 2(b) confer a right to use public property as a forum of expression?
 Montreal v. 2952-1366 Quebec (2005) – a strip club in Montreal set up a loudspeaker at
its street entrance to broadcast what was happening in the club; the club was charged
with noise violations under a city by-law that prohibited noise produced by sound
equipment that could be heard outside a building
 Issue: was the by-law contrary to s. 2(b) of the Charter? (the noise originated on private
property, but was transmitted onto a public street which was prohibited by the by-law);
in other words, did s. 2(b) protect expression that was transmitted into a public street?
 Access to Public Property
 The SCC created a test for the application of s. 2(b) on public property:

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 Is it a public place where one would expect constitutional protection for expression on
the basis that expression in the place does not conflict with the purposes of s. 2(b),
namely, democratic discourse, truth finding, and self-fulfillment?
 To answer this question, the following factors should be considered: (a) the historical or
actual function of the place; and (b) whether other aspects of the place suggest that
expression within it would undermine the values underlying free expression.
 See also Greater Vancouver Transportation Authority v. Canadian Federation of
Students (2009); Hogg, p. 43-48
 Access to Courts
 Issue: when does freedom of the press come into conflict with the right of accused
persons to receive a fair trial?
 Dagenais v. CBC (1994) – injunction prohibiting the CBC from broadcasting a TV program
called “the Boys of St Vincent” (fictional program about abuse by Catholic priests, while
Catholic priests were on trial); SCC struck down injunction (infringement of s. 2(b) not
saved by s. 1)
 R. v. Mentuck (2001) – “Mr. Big” operation by undercover police officers; police wanted
the trial to be under a publication ban to protect ongoing undercover operations;
publication ban not upheld by SCC with respect to undercover operations (but yes for
undercover officer identities); SCC held that the Crown had to establish a “serious risk to
the proper administration of justice” and that “reasonable alternative measures will not
prevent risk” (minimal impairment); the Crown failed to establish this for the
undercover operations / police methods
 Other reporting restriction cases:
 Canadian Newspapers Co. v. Canada (1988): upheld Criminal Code provision mandating
a ban on the publication of complainant’s name in sexual offence cases where
requested by the complainant or the prosecutor
 Edmonton Journal v. Alberta (1989): struck down Alberta statute prohibiting (with
limited exceptions) press reports of matrimonial litigation
 Toronto Star Newspapers (2010): upheld accused’s entitlement to automatic publication
ban of bail hearing
 Issue: freedom of the press also includes the right of the press and the public to be
present in the court
 Re Southam and the Queen (No. 1) (1983) – Ontario Court of Appeal considered the law
at the time that trials of children would be closed to the press and the general public;
the court found that the absolute ban was a restriction of s. 2(b) and could not be saved
by s. 1 – the law was eventually changed to allow hearings to be open subject to judicial
discretion to close the hearing (and the discretionary provision was upheld under s. 1 in
a subsequent case, Re Southam and the Queen (No. 2) (1986)
 Access to Legislative Assembly
 Issue: television cameras in a legislative chamber
 New Brunswick Broadcasting Co. v. Nova Scotia (1993) – SCC upheld the ban on
television cameras in a legislative chamber based on parliamentary privilege

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 Note that this was not a Charter case, even though one dissenting judge would have
held that the Charter applied and that s. 2(b) conferred a right of access to a legislative
assembly on the press and other media; the majority denied that the Charter applied at
all
 Public Service
 Issue: public servants engaging in partisan political activities – is this a breach of s. 2(b)?
 The underlying principle is the pursuit of political neutrality
 Osborne v. Canada (1991) – SCC held that the Public Service Employment Act which
prohibited federal public servants from engaging in work for or against a candidate for
election to Parliament etc. was a limit to the freedom of expression under s. 2(b) and
was not saved by s. 1 (over-inclusive so failed the least-drastic part of the Oakes test)
 Access to Government
 Issue: Positive rights
 NWAC v. Canada (1994) – funding for some aboriginal organizations but not to the
NWAC, was this a limit on freedom of expression? The SCC held that s. 2(b) does not
impose a positive duty on government to fund or ensure everyone has the same
“platform of expression”
 Baier v. Alberta (2007) – the SCC held that access to a “statutory platform” not
protected under s. 2(b)
 Access to
Government Documents
 Issue: exemptions in freedom of information legislation
 Ontario v. Criminal Lawyers’ Association (2010): Section 2(b) “guarantees freedom of
expression, but it does not guarantee access to all documents in government hands.
Access to documents in government hands is constitutionally protected only where it is
shown to be a necessary precondition of meaningful expression, does not encroach on
protected privileges, and is compatible with the function of the institution concerned.”
 Part 19
 Freedom of
 Conscience and Religion
 Distribution of Powers
 Does the power to enact laws in relation to religion reside with the federal Parliament
or the provincial Legislatures?
 If criminal matter (i.e. Sunday observance laws) = federal Parliament (Big M Drug Mart
(1985))
 But recall that provincial Legislatures could enact Sunday closing laws for the secular
purpose of a retail pause for workers, as an element of “property and civil rights” (R. v.
Edward Books (1986))
 Power over the solemnization of marriages (which can have a religious dimension)
under s. 92(12) = provincial Legislatures
 Education, including the establishment of denominational schools under s. 93(3) =
provincial Legislatures
 Freedom of Conscience and Religion
 Section 2(a) of the Charter:

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 Fundamental Freedoms
 2. Everyone has the following fundamental freedoms:
 ---
 (a) freedom of conscience and religion.
 Freedom of Conscience and Religion
 Freedom of conscience and religion is not absolute
 Section 2(a) of the Charter is subject to s. 1 (of course), which means that a law that
limits freedom of conscience and religion will be valid under s. 1 if it comes within the s.
1 framework: “such reasonable limits prescribed by law as can be demonstrably justified
in a free and democratic society”.
 Charter analysis is in two stages:
 Ask, does the law (or action) limit freedom of conscience or religion?
 If yes, does the law satisfy the standards of justification under s. 1 (i.e. is the law saved
by s. 1)?
 Freedom of Conscience
 What is freedom of “conscience”?
 Protects systems of belief which are not theocentric and which might not be
characterized as religion (including non-belief, atheism and agnosticism)
 R. v. Morgentaler (1988) – SCC held that the regulation of abortion was a denial of
freedom of conscience, defined as “personal morality which is not founded in religion”
and as “conscientious beliefs which are not religiously motivated”.
 Mouvement laïque québécois v. Saguenay (2015) – the SCC struck down the municipal
practice (in a by-law) of Mayor saying a prayer to God at the beginning of council
proceedings
 Freedom of Religion
 An early case: R. v. Big M Drug Mart (1985) – SCC struck down the Lord’s Day Act, a
federal statute largely prohibiting commercial activity on Sunday
 The majority of the SCC defined freedom of religion as follows:
 “The essence of the concept of freedom of religion is the right to entertain such
religious beliefs as a person chooses, the right to declare religious belief openly and
without fear or hindrance or reprisal, and the right to manifest religious belief by
worship and practice or by teaching and dissemination.”
 What counts and what doesn’t count as protected freedom of religion?
 Freedom of Religion -
Sunday Observance
 R. v. Big M Drug Mart (1985) – the SCC found that the purpose of the Lord’s Day Act
(prohibiting commercial activity on Sunday) was “to compel observance of the Christian
Sabbath” – this purpose was not compatible with s. 2(a) of the Charter
 R. v. Edward Books and Art (1986) – Ontario’s Retail Business Holidays Act prohibited
commercial activity on Sundays, but the purpose was secular: providing a common
pause day for retail workers- However, the SCC found it still infringed s. 2(a) because the
effect was to impose an economic burden on those retailers who observed a sabbath
day other than Sunday (note that the law was upheld under s. 1 of the Charter)

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 Peel v. Great Atlantic and Pacific Co. (1991) – amended Act expanding the scope of the
Sabbatarian exemption upheld as not even infringing s. 2(a) (so no need to look to s. 1)
 Freedom of Religion – constraints?
 Issue: if there is a right to manifest religious belief by worship and practice (Big M Drug
Mart (1985)), what about where these rights clash with the rights of others?
 Right to life, liberty and security of the person
 Equality rights
 Clash of religious rights
 Others?
Blood Transfusions
 B.(R.) v. Children’s Aid Society (1995) - majority of the SCC found that the decision of
parents to prohibit doctors from giving a blood transfusion to their baby daughter was
protected by freedom of religion, because it was dictated by their beliefs as Jehovah’s
Witnesses (but saved by s. 1); note the dissent: there are intrinsic limits on freedom of
religion (ie where the health, safety and / or life of the child at stake)
 A.C. v. Manitoba (2009) – majority of SCC held that the power to override wishes of
child under 16 on a matter of religious belief does not violate s 2(a) because religious
convictions and child’s wishes taken into account under the (flexible) best-interests of
the child standard
Hate Speech/Damaging Practices
 Ross v. New Brunswick School District No 15 (1996) – schoolteacher who publicly
disseminated the opinion that Christian civilization was being destroyed by an
international Jewish conspiracy – SCC found that this activity was protected by s. 2(a)
(but his removal as a teacher justified under s. 1)
 Saskatchewan v. Whatcott (2013) – issue was distributing flyers condemning
homosexuality contrary to Saskatchewan’s Human Rights Code – what happened?
 Freedom of religion to be given a broad interpretation, unlimited by consideration of
the alleged impact of an allegedly religious practice on the rights of other people
 How broad? See Syndicat Northcrest v. Amselem case…
 Broad Right: Syndicat Northcrest v. Amselem (2004)
 Issue: condominium owners who were orthodox Jews claimed the right to build
temporary dwellings on the balconies of their condo apartments where they would live
for a nine day period each year for the festival of Succot; the condo by-laws prohibited
constructions of any kind on the balconies
 SCC held the claimants had the right to erect the buildings on their balconies and
defined protected religious practices in very broad terms:
 The practice need not be part of an established belief system
 The practice need not even be a belief system shared by others (it can be unique to the
claimant)
 All that was required was that the claimant “sincerely believe” that the practice was of
“religious significance”
 The test was wholly subjective

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 Test for s. 2(a) Infringement

 An infringement of s.2(a) will be established where:
 the claimant sincerely holds a belief or practice that has a nexus with religion; and
 the measure/provision at issue 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

 Syndicat Northcrest v. Amselem (2004) (See Hogg pp. 42-11-13 and 42-18)
 Defining Freedom of Religion
 “…While it is perhaps not possible to define religion precisely, some outer definition is
useful since only beliefs, convictions and practices rooted in religion, as opposed to
those that are secular, socially based or conscientiously held, are protected by the
guarantee of freedom of religion. Defined broadly, religion typically involves a particular
and comprehensive system of faith and worship. Religion also tends to involve the
belief in a divine, superhuman or controlling power. In essence, religion is about freely
and deeply held personal convictions or beliefs connected to an individual’s spiritual
faith and integrally linked to one’s self-definition and spiritual fulfillment, the practices
of which allow individuals to foster a connection with the divine or with the subject or
object of that spiritual faith.” (Syndicat Northcrest v. Amselem (2004) at para. 39)
 Fair Trial Rights
R. v. N.S. (2012)
 R. v. N.S. (2012) – can a sexual assault complainant wear a niqab (veil covering the face
except for the eyes) while testifying during a sexual assault case? Freedom of religion vs.
the right to make full answer and defence.
 Majority held: just and proportionate balance must be struck between freedom of
religion and trial fairness, following Dagenais/Mentuck approach (recall these cases
about freedom of expression vs. trial fairness) – the trial judge decides
 Relevant considerations include importance of the practice to the complainant; expert
evidence regarding importance of seeing a witness’s face; broader societal harms
(including the reluctance of Muslim women to report sexual assault)
 Dissenting judges would have proposed a clear rule to resolve conflicting rights, but
disagreed on the rule
 Reference re Same-Sex
Marriage (2004)
 Reference re Same-Sex Marriage (2004) – federal Parliament can enact a bill legalizing
same-sex marriage under power over “marriage” in s. 91(26) of the Constitution Act,
1867
 But s. 2(a) of the Charter protects religious officials from being compelled by the state to
perform civil or religious same-sex marriages that are contrary to their religious beliefs
 Note Re Marriage Commissioners (2011) – there is a difference between religious
officials and civil officials appointed by the province to perform civil marriages; the SCC
majority held that the proposed legislation allowing “marriage commissioners” to refuse
to solemnize any marriages contrary to their personal religious beliefs violated s.15 and
could not be justified under s.1 – (because they are the only persons who can perform
non-religious marriage ceremonies!)

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 Let’s Review:
Test for a s. 2(a) Infringement
 Claimant sincerely holds a belief or practice that has a nexus with religion
 Practice or belief in issue must have a nexus with religion
 Broad definition
 Wholly subjective (enough if personally felt connection with religion)
 Belief must be sincere
 Limited inquiry
 Past practice is not always relevant (can change your mind / beliefs – see Syndicat
Northcrest v. Amselem)
 Test for a s. 2(a) Infringement
 Measure/provision at issue 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
 “Trivial or insubstantial” interference is interference that does not threaten actual
religious beliefs or conduct (Syndicat Northcrest v. Amselem)
 Requires objective proof of interference with religious practice or belief (see S.L. v.
Commission scolaire des Chenes (2012) at Hogg p. 42-21)
 Section 1
 So s. 2(a) is a very broad right
 Many cases are resolved by reference to s. 1 of the Charter (the Oakes test)
 Let’s look at how these cases are decided…
 Section 1 Cases
 Multani v. Commission scolaire Marguerite-Bourgeoys (2006) – can a 13 year old Sikh
boy wear a kirpan (ceremonial dagger) to public school in the face of a school board
regulation that prohibited weapons?
 SCC applied Amsalem and held that the regulation infringed the student’s freedom of
religion based on the student’s sincere belief that it was required by his religion
 Not saved by s. 1; wholesale weapons ban failed on minimal impairment; SCC ordered
school to permit the kirpan in a wooden sheath and sewn into the student’s clothing so
that it could not be easily removed
 Section 1 Cases
 Alberta v. Hutterian Brethren of Wilson Colony (2009) – a colony of the Hutterian
Brethren sought an exemption from the requirement of a driver’s licence photo on
religious grounds; the Hutterian do not believe in having their photo taken
 SCC held that the Hutterian Brethren had a sincere religious belief that prohibited photo
taking and the belief was protected by s. 2(a) of the Charter
 But the photo requirement was justified under s. 1
 The SCC held that the photo requirement served an important purpose and did not
impose a severe burden on the claimants as they could use other means of transport
 Section 1 Cases
 Polygamy Reference (2011) – British Columbia Supreme Court held that polygamy was a
constitutionally protected religious practice under s. 2(a)
 but the Criminal Code prohibition was justified under s. 1 due to evidence of harm to
women

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 Division of Powers -
Religion and Education
 Section 93: In and for each Province the Legislature may exclusively make Laws in
relation to Education, subject and according to the following Provisions:
 (1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect
to Denominational Schools which any Class of Persons have by Law in the Province at
the Union
 Denominational Schools
 Section 2(a) requires a province to permit children to be educated outside the secular
public system, although the province must have the right to regulate alternative schools
(including denominational schools) to ensure a core curriculum and adequate facilities
and teaching standards are offered
 Religion and Education
 S.L. v. Commission scolaire des Chenes (2012) – a course on religion in public school that
examines religion in a neutral way, not promoting any one religion, does not infringe s.
2(a)
 Adler v. Ontario (1996) - s.93(1) reflects a historic compromise
 a province’s failure to fund religious denomination schools that are not recognized by
s.93 is not a breach of religious freedom under s.2(a) (or equality under s.15 of the
Charter)
 End Day 5
CLASS 6:
 Part 20
 Constitutional Remedies
 Constitutional Remedies
 Issue: Constitutional rights are only meaningful if they can be enforced. So how to
enforce constitutional rights?
 Look at two main sections in the Constitution Act, 1982….
 Section 52(1)
 Section 24(1)
 Supremacy Clause
 Section 52(1) of the Constitution Act, 1982:
 The Constitution of Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.
 Supremacy Clause

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 Section 52(1) is known as the supremacy clause because it makes it clear that laws must
be consistent with the Constitution of Canada
 In other words, judges are allowed to review Canada’s laws for this purpose
 Since the Charter is part of the Constitution of Canada, it has an overriding effect (any
law that is inconsistent with the Charter is “of no force or effect”)
 Remedy Clause
 S. 24(1) of the Charter (in Part I of the Constitution Act, 1982):
 Anyone whose rights and freedoms, as guaranteed by this Charter, have been infringed
or denied may apply to a court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
 Remedy Clause
 S. 24(1) is the Charter’s own remedy clause, authorizing a court of competent
jurisdiction to award a remedy for breach of the Charter
 It is not an exclusive remedy because it complements s. 52(1), which is the supremacy
clause
 Comparing s. 52(1) and s. 24(1)
 Supremacy Clause – Remedies available to courts
 S. 52(1) only allows a court to give a finding of invalidity if s. 52(1) applies and a law is
inconsistent with the Charter
 However, courts have developed a number of ways to hold that a law is invalid…
 Nullification
 Temporary validity
 Severance
 Reading in
 Reading down
 Constitutional exemption
 Nullification
 Nullification is striking down (declaring invalid) the statute that is inconsistent with the
Constitution
 The effect is that it is as if the unconstitutional law did not exist
 Temporary Validity
 Temporary validity is striking down a statute that is inconsistent with the Constitution,
but temporarily suspending the coming into force of the declaration of invalidity
 The effect of this to grant a period of temporary validity to an unconstitutional statute
 Re Manitoba Language Rights (1985) – unusual case where the legislature failed to
enact laws in French and English which meant that technically every law on the book
was unconstitutional and of no force or effect – radical exercise of judicial power to
keep the laws in force in order to avoid a legal vacuum in the province while the
problem was fixed
 Seems like a radical remedy for rare cases; but this is not the only case / kind of case
where temporary validity has been used…
 Temporary Validity

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 Dixon v. British Columbia (1989) – provincial legislation prescribing electoral districts for
the province was unconstitutional; the court allowed the legislation to remain in place
for a time reasonably required to remedy the legislation (no deadline imposed)
 R. v. Brydges (1990) – 30 day “transition period” before enforcing duty on police to
advise all persons under arrest of the right to obtain legal aid
 R. v. Swain (1991) – SCC struck down Criminal Code provision requiring detention of a
person in a mental facility who had been acquitted of a crime on grounds of insanity;
six-month period of temporary validity
 Temporary Validity –
Schachter Guidelines
 Schachter v. Canada (1992) – a case about an under-inclusive statute (based on the s. 15
equality guarantee)
 Statute struck down but temporary invalidity so that the government could determine
whether to cancel or extend the benefits
 SCC recongized that the remedy was extreme so held that suspended declarations of
invalidity limited to exceptional cases where immediate declaration of invalidity would:
 “pose a danger to the public” (e.g. Swain case (1991))
 “threaten the rule of law” (e.g. Manitoba Language case (1985))
 “result in the deprivation of benefits from deserving persons” (e.g. Schachter case
(1992))
 Temporary Validity –
Schachter Guidelines
 But the Schachter guidelines have largely been ignored by subsequent courts – some
examples:
 Canada v. Bedford (2013) – three prostitution-related offences in the Criminal Code
were invalid, but the declaration of invalidity was suspended for one year “considering
all the interests at stake”
 Carter v. Canada (2015) – Criminal Code prohibition of doctor-assisted suicide was
unconstitutional and the declaration of invalidity was suspended for one year
 Severance
 Severance is holding that only part of the statute is inconsistent with the Constitution,
striking down only that part and severing it from the valid remainder
 It is the appropriate remedy when only part of the statute is held to be invalid and the
rest can independently survive
 This remedy is common, because it is unusual for a Charter breach to taint a statute in
its entirety
 Severance is a doctrine of “judicial restraint”
 See Tetreault-Gadoury v. Canada (1991) – another under-inclusive statute case involving
restricting unemployment insurance benefits to those under age 65; the Court invoked
severance to remove the age-65 bar from the Act
 Reading In
 “Reading in” means adding words to a statute that is inconsistent with the Constitution
so as to make the statute consistent with the Constitution and therefore valid

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 First outlined in the Schachter case as an option (ie the court could have decided to
“read in” the class of natural parents to the statutory provision benefiting adoptive
parents); the Court held that caution is called for in using this remedy, which should only
be appropriate in the “clearest of cases”, which seemed to mean cases where:
 The addition of the excluded class was consistent with the legislative objective
 There seemed to be little choice as to how to cure the constitutional defect
 The reading in would not involve a substantial change in the cost or nature of the
legislative scheme; and
 The alternative of striking down would be an inferior remedy
 See Miron v. Trudel (1995) and Vriend v. Alberta (1998) = cases about the remedy of
extension (due to an under-inclusive statute)
 Reading Down
 Reading down means interpreting a statute that could be interpreted as inconsistent
with the Constitution so that it is consistent with the Constitution
 Reading down is the appropriate remedy where the statute will bear two
interpretations: one which offends the Charter and one which does not
 Why is it called reading down?
 Note that there is no holding of invalidity; the vindication of the Charter right is done
solely by interpretation
 Constitutional Exemption
 Constitutional exemption is creating an exemption from a statute that is partly
inconsistent with the Constitution so as to exclude from the statute the application that
would be inconsistent with the Constitution
 The advantage of this remedy is that it enables the court to uphold a law that is valid in
most of its applications by creating an exemption for those applications that would
offend the Charter
 Note that is has been rejected in many cases e.g. R. v. Ferguson (2008) – no
constitutional exemptions for mandatory minimum sentences; if the sentence is
disproportionate, the remedy should be striking down the law (particularly where
Parliament had clearly intended to exclude judicial discretion)
 Remedy Clause under s. 24(1) of the Charter
 S. 24(1) of the Charter (in Part I of the Constitution Act, 1982):
 Anyone whose rights and freedoms, as guaranteed by this Charter, have been infringed
or denied may apply to a court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
 Provides a remedy for government action that breaches the Charter
 Available only for breaches of the Charter
 Remedy Clause under s. 24(1) of the Charter
 It is not an exclusive remedy, because the supremacy clause in s. 52(1) might still apply
(this is the case where the appropriate remedy is striking the legislation); s. 24(1) is only
needed where a remedy provided by s. 52(1) is not needed or will not provide
satisfactory redress
 Generally:

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 S. 24(1) provides a remedy for government acts that violate an individual’s Charter
rights = personal remedy
 S. 52(1) provides a remedy for laws that violate a Charter (or other constitutional) right
= declaration of invalidity
 See R. v. Demers (2004) – both remedies granted
 Standing
 Standing to apply for a remedy under s. 24(1) = anyone whose Charter rights have been
infringed or denied; i.e. where the applicant’s own rights have been infringed or denied
 Standing to apply for a remedy under s. 52(1) = issue of unconstitutionality of legislation
can be raised by anyone, even someone who is not directly affected (see Big M Drug
Mart where corporation could not hold a religious belief so could not obtain a remedy
under s. 24(1), but could defend a criminal charge on the basis of the law denying
freedom of religion to individuals)
 Court of Competent Jurisdiction
 Section 24(1) remedies may be granted only be a “court of competent jurisdiction”
 Compare this to the s. 52(1) remedy of a declaration of invalidity which is available to
any court or tribunal that can decide questions of law
 What is a court of competent jurisdiction?
 A superior court
 A trial court (such as provincial offences court), where the conduct of the trial is at issue
 What is not a court of competent jurisdiction?
 A judge conducting a preliminary inquiry
 What about administrative tribunals?
 Range of remedies
under s. 24(1)
 S. 24(1) authorizes “such remedy as the court considers just and appropriate in the
circumstances”
 Remedies should:
 Meaningfully vindicate Charter rights and freedoms;
 Employ means that are legitimate within our constitutional framework;
 Be judicial ones which invoke the court’s proper powers;
 Be fair to the party against whom the remedy is made; and
 Remain flexible and responsive to the context of a case.
 Doucet-Boudreau v. Nova Scotia (2003)
 Range of remedies
under s. 24(1)
 Types of remedies:
 Declaration
 Damages
 Costs
 Exclusion of evidence
 Supervision of court orders
 Declaration

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 A declaration is a remedy that declares the legal position, but does not actually order
the defendant to do anything
 A simple declaration that the government is in default of its Charter duties in theory
should be obeyed (but are times a’ changing??)
 See Canada v. Khadr (2010)
 Damages
 Charter damages may be “appropriate and just” where they further the functions of
compensation, vindication, and deterrence (see Vancouver v. Ward (2010))
 Costs
 The award of costs is sometimes an appropriate and just remedy for those Charter
breaches that cause inconvenience or delay to a litigant
 Exclusion of Evidence
 There is a whole jurisprudence around exclusion of evidence under s. 24(2) (where
admission of the evidence would bring “the administration of justice into disrepute”)
 But what about exclusion under s. 24(1)?
 Yes, see R. v. White (1999) – Hogg p. 40-44
 Supervision of court orders
 Upheld as an appropriate and just remedy (5-4) in Doucet-Boudreau v. Nova Scotia
(Hogg p. 40-46)
 Why? Charter is supposed to receive a “large and liberal” construction, which applied to
the remedial power in s. 24(1) as well as to the substantive rights themselves
 Sometimes, reporting requirements are necessary to ensure that the remedy is effective
 See also Abdelrazik v. Canada (2009) (Hogg p. 40-48)
 Administrative Tribunals
 Issue: can administrative tribunals decide Charter issues?
 Answer: Yes.
 Section 24(1)
 An administrative tribunal with authority to decide questions of law is a court of
competent jurisdiction unless legislation clearly withdrew Charter issues from the
tribunal’s jurisdiction
 R. v. Conway (2010) at Hogg p. 40-34
 Administrative Tribunals
 Section 52(1)
 A tribunal is bound to apply all the relevant law, including the Constitution. If a tribunal
finds a law invalid pursuant to s. 52(1), it is bound to treat the law as having no force or
effect (in cases where it is necessary to resolve the constitutional issue in order to
exercise the tribunal’s statutory jurisdiction).
 However, an administrative tribunal does not have the power to make a declaration of
invalidity (because it cannot issue binding precedent) – see Douglas/Kwantlen Faculty
Association v. Douglas College (1990) and Cuddy Chicks v. Ontario (1991) – Hogg pp. 40-
50 to 40-53.
 Exam Preparation
 March 23, 2020 1:00 PM – 4:00 PM
 Exam Format

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 3 hour exam
 Use your time wisely
 Suggested times for each question appear in the exam questions
 Exam Format
 Open book exam
 You may bring and use any printed or handwritten materials you wish including
textbooks, course materials, and notes. Electronic materials are prohibited.
 Grading
 The exam will be graded out of 100 marks and will constitute 70% of your final grade for
the course.
 Exam Format
 Part I: True or False Brief Answer Questions – 24 marks
 Answer 8 out of 9 Questions; Suggested time: 40 minutes (5 minutes per question)
 Part II and III: Fact Patterns – 50 marks
 Answer all questions in both fact pattern questions
 Part II Fact Pattern – 25 marks (Questions 10 and 11; 20 marks for Question 10, 5 marks
for Question 11); Suggested time: 45 minutes total
 Part III Fact Pattern – 25 marks (Questions 12 and 13; 8 marks for Question 12, 17 marks
for Question 13); Suggested time: 45 minutes total
 Part IV: Short Answer Questions – 14 Marks (7 marks per question)
 Answer 2 out of 3 Questions from Questions 14, 15 and 16
 Suggested Time: 25 minutes (approximately 13 minutes per question)
 Part V: Essay Question – 12 marks
 Answer 1 out of 3 Questions from Questions 17, 18 and 19
 Suggested time: 25 minutes
 True or False
 Instructions:
 Answer the following questions with a response of true or false, and supplement that
response with a very short (2 or 3 sentences) follow-up statement explaining why you
came to that conclusion. In the follow-up statement, you may wish to mention the
relevant section of the Constitution or determinative case law, but this may not be
required for every question. Your follow-up should essentially explain your reasoning or
assert what it is that you know that caused you to come to your conclusion about
whether the statement in the question is true or false.
 Points will be awarded for directing your response precisely and concisely to assessing
the accuracy of the statement in question. Points may also be awarded for supporting
your answers with references to relevant cases (in the Hogg text and in the course
outline/schedule) and specific constitutional provisions where appropriate, but students
are cautioned not to overinvest time in answering any one of these questions, as each is
only worth a maximum of three points.
 True or False
 Religion is a matter that falls exclusively within provincial jurisdiction under s. 92(13) of
the Constitution Act, 1867, property and civil rights in the province.

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 In order to be considered an “aboriginal right” pursuant to s. 35 of the Constitution Act,

1982, a practice must have developed before contact, i.e. the arrival of Europeans in
North America, and the practice could not evolve in any way over the years since
European contact.
 True or False
 For policy reasons, the Supreme Court of Canada has held that criminal activity can
never be considered “expression” pursuant to s. 2(b) of the Charter of Rights and
Freedoms.
 Fact Pattern Questions
 The exam is comprised of two separate fact pattern questions:
 Part II Fact Pattern, Questions 10 & 11
 Part III Fact Pattern, Questions 12 & 13

 Note: Analyze both of the following fact patterns and answer all of the questions in this
section.
 Suggested Time: 90 minutes in total (approximately 45 minutes per Fact pattern)
 Total Marks: 50; 25 per fact pattern
 Fact Pattern Questions
 We are testing:
 Ability to analyze a set of facts, separating immaterial from material facts and spotting
issues on which the case turns;
 Ability to identify legal issues presented by the facts;
 Knowledge of relevant doctrines of law, their scope and limitations (including case
citations);
 Ability to apply the law to facts, utilizing established modes of legal reasoning to arrive
at a conclusion;
 Knowledge of the theoretical and policy underpinnings of various rules and doctrines of
law; and
 Ability to critically evaluate the theoretical and policy bases of the law.
 (National Committee on Accreditation: “How to Answer Fact Based Law Exam
Questions”)
 Fact Pattern Question
 The Male Action Now! (MAN) party is a fringe Federal political party which wins a seat in
Parliament.
 The central belief of the MAN party is that the economic and social status of men in
Canada has been deteriorating for decades in ways that are unfair to men and that this
trend must be reversed.
 Accordingly, the MAN party believes that Canada must return to what it terms as
“proper and traditional Canadian values”, such that women should not be permitted to
work in all but a few “traditionally female” professions in order to “restore economic
opportunity for men”
 Private members bill tabled: Male Economic Action Act, restricting any pregnant person
from employment in the Federal public service and restricting any person who has given

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birth from being employed in the Federal public service until any and all of their children
have reached the age of 18 years old.
 Fact Pattern Question
 You are the counsel at the Constitutional Law Office who has been charged with
providing a legal opinion on the constitutionality of the proposed law. Your superiors
have asked you to do the following:
 Determine whether the proposed legislation would be held by the courts to violate s.
15(1) of the Canadian Charter of Rights and Freedoms. You should explain your analysis
clearly at every step of the involved constitutional framework. You should also directly
state your conclusion as to whether you believe the legislation is constitutionally sound
or if it violates s. 15(1).
 If the proposed legislation is found to violate s. 15(1) of the Canadian Charter of Rights
and Freedoms, can it be upheld under s. 1 of the Charter? You should explain your
analysis clearly at every step of the constitutional test.
 Short Answer
 Questions 14 – 16
 Note: Analyze and respond to two out of the three short answer questions in this
section.
 Suggested Time: 25 minutes in total (approximately 13 minutes per question)
 Total Marks: 14; 7 per question
 Note that answers in this section should comprise a paragraph or two, which answer the
question posed and briefly refer, where appropriate, to the supporting case law,
principles learned, or sections of the Canadian Constitution which support your answer.
Overly detailed analysis is not necessary – more important is giving your general answer
and citing appropriate authority that supports your answer, if appropriate to do so.
 Short Answer
 Explain how the doctrine of interjurisdictional immunity differs from the doctrine of
paramountcy. Make reference to course materials, including case law, in making your
comparison.
 Short Answer
 In Canada, there is a current dispute in the province of Saskatchewan about whether the
federal Parliament has the jurisdiction to impose “carbon pricing” in the province where
the Saskatchewan Legislature fails to impose a carbon price itself. Saskatchewan is
taking the federal government to court over the issue on grounds of federalism /
division of powers, arguing that such a move is unconstitutional. The federal
government just filed its response in court, arguing that the threat of climate change is a
“national issue” giving the federal Parliament the authority to impose the legislation on
carbon pricing in Saskatchewan. What constitutional authority is the federal
government relying on to justify its action and what is the legal test that it will need to
meet in order to succeed?
 Essay Question
 Questions 17 – 19
 Note: Answer only one of the three questions, in this section.

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 Suggested Time: 25 minutes in total

 Total Marks: 12
 Write a short essay in response to one of the three questions presented below. In your
essay you should briefly explain what you believe the point of view set out in the
question is saying and, more importantly, you should set out your views, beliefs and
arguments either in support of or opposition to the view posed in the question. Please
make an argument. You are expected to make use of course materials in your answer.
 Essay Question
 To date, the SCC has not accepted that the “harm principle” should comprise part of the
operative legal interpretive framework of what constitutes a valid criminal prohibition in
Canada nor that the harm principle should be accepted as a principle of fundamental
justice. Do you believe the Court has been correct in rejecting the “harm principle”?
Explain why or why not, and state your views and reasoning as to whether you believe
the Court should adopt the harm principle into Canadian legal canon.
 Essay Question
 There is no hierarchy of rights in the Charter, but if there was a hierarchy, freedom of
expression would be the most important right. Do you agree or disagree with this
statement? Provide your arguments with reference to course materials.
 Finally…
 Final questions?
 Do not hesitate to e-mail me with any questions. Please note that I will be travelling out
of the country from March 12 – 19 inclusive and, while I should have access to my e-mail
messages, I will not always be able to respond immediately during that week.
 Good luck!
 End Day 6


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Class Notes - All lectures combined.

Canadian Public and Constitutional Law (York University)

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3. Some-but-not-all-provinces procedure (s. 43) for amendment of provisions not applying

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c) The number of members by which a province is entitled to be represented in the

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 A centralized system of government

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 the “pith and substance” doctrine enables one level of

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 Pith and Substance – Presumption of Constitutionality

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 Issue: when it is appropriate to read down a law so that it should be interpreted so as

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2. Based on the law’s “matter”, determine which level of government (federal or

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 Again, recall Multiple Access v. McCutcheon (1982) – provisions of Ontario

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 See paras. 79-109 of Canadian Western Bank v. Alberta

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 Margarine Reference (1951) – a law that prohibited the manufacture, importation or

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therefore shall operate notwithstanding a provision included in section 2 or sections 7

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