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Constitutional law of Canada

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                                        CONSTITUTIONAL LAW


General Constitutional information - (1)
Constitutional conventions and usage - (3)
Amending procedures - (5)
Secession and the Secession Reference - (8)
Federalism - (9)
Judicial Review on federal grounds (pith and substance analysis) - (11)
Paramountcy - (19)
     Property and civil rights - Constitution Act 1867 s. 92(13) - (21)
     Trade and Commerce - Constitution Act 1867 ss. 91(2), 92(13), and 92 - (25)
     Peace, Order and Good Government – Constitution Act 1867 s. 91 - (27)
     Criminal law – Constitution Act 1867 s. 91(27) - (30)
Language rights in the Constitution of Canada – (36)
Aboriginal rights – 91(24) Constitution Act 1867 and Constitution Act 1982 – ss. 25 and 25 – (41)

Interpreting the Charter – (49)
Application of the Charter of Rights and Freedoms – (52)
Override of rights – Notwithstanding clause (s. 33) – (57)
Limitation of Rights – Section 1 and the Oakes test - (58)
     Freedom of conscience and religion – Constitution Act 1982 s. 2(a) – (64)
     Freedom of expression – Constitution Act 1982 s. 2(b) – (67)
     Life, Liberty and Security of the Person – Constitution Act 1982 s. 7 – (71)
     Equality rights – Constitution Act 1982 ss. 15 and 28 – (76)
Remedies – Constitution Act 1982 ss. 24 and 52 – (80)

PART I – BASIC CONCEPTS

    1. Sources and nature of the constitution (Hogg Chapter 1, “sources”)

Constitutional law is the law prescribing the exercise of power by the organs of a state. It explains which
organs can exercise legislative power (making new laws), executive power (implementing the laws) and
judicial power (adjudicating disputes), and what the limitations on those powers are. Civil liberties are
also part of constitutional law, because civil liberties may be created by the rules that limit the exercise of
governmental power over individuals. Government officials must act in accordance with the law (rule of
law or constitutionalism). For this to be a reality, remedies must be available to citizens when officials act
outside the law. Laws enacted in breach of the con may be challenged in the courts by citizens, and the
laws will be struck down by the courts. Actions by government departments, public agencies, officials
and the police must also stay within the limits laid down by the constitution and by the law contained in
statutes and common law (judge-made law).

Constitution Act 1867 – In Canada, there is no single document comparable to the U.S.A. The closest
thing to a single document is the BNA 1867 (renamed the Constitution Act 1867 in 1982). This created
the Dominion of Canada by uniting three of the colonies of British North America. The Act established
the rules of federalism. The Act did not mark any break with the colonial past. Although the new
Dominion had a considerable degree of self-government, it remained a British colony. The BNA Act did
no more than was necessary to accomplish confederation (note the preamble; the new nation was to have
a “constitution similar in principle to that of the UK”). Note two things about the BNA Act from the
framers: 1) they did not overlook the fact that it did NOT contain an amending clause. They would have
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known of the U.S. constitution which did. 2) The framers must have known that the absence of an
amending clause would mean that amendments would have to be enacted by the imperial Parliament. This
was the case until 1982, when the Constitution Act, 1982 finally supplied amending procedures which
could be operated entirely within Canada. Another gap is that there is no mention of the PM or of the
cabinet, or of the dependence of the cabinet on the support of a majority in the HOC (responsible
government). The BNA Act also gave authority for a SC to be established, but it did not actually establish
it. The framers looked to the Privy Council as the final appellant court. The abolition of the PC did not
come until 1949. The existence, composition and jurisdiction of the SCC depended upon ordinary federal
statute (SC Act). BNA Act didn‟t even have a bill of rights; civil liberties of Canadians were protected by
the moderation of their legislative bodies and the rules of the common law. In 1960 when Canada
introduced the Bill of Rights, it was enacted as a federal statute, not an amendment to the BNA Act (only
applied to federal laws). The Constitution Act 1982 finally added to Canada‟s constitutional law a bill of
rights (The Charter). This, of course, applies to both federal and provincial laws.

Constitution Act 1982 – a domestic amending formula was adopted, the UK imperial Parliament‟s
authority over Canada ceased, and the Charter was adopted.
        Canada Act 1982: short statute of UK Parliament which terminated the authority over Canada
           of the UK Parliament (contains only 4 short sections);
        Schedule B of the Canada Act 1982 was the Constitution Act 1982 (has 60 sections), which
           contains the Charter and amending formula;
        In a sense, the two 1982 statutes worsen the formal state of Canada‟s constitutional law,
           because they add two more statutes to the variety of sources which existed before.
The Constitution Act 1982 changes the BNA Act 1867 to the Constitution Act 1867. It also, for the first
time, contains a definition of the “Constitution of Canada.”

“Constitution of Canada” – it is defined in s. 52(2) of the Constitution Act 1982. There are three
categories of instrument: 1) the Canada Act 1982 (which includes the Constitution Act 1982, which is
Schedule B of the Canada Act); 2) a list of 30 Acts and orders in the schedule to the Constitution Act
1982 (includes the Constitution Act 1867 and its amendments, orders in council, statute of Westminster,
etc.); 3) amendments which may in the future be made to any of the instruments in (1) and (2) (in 2006
there have been 10 such amendments).
      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)
Note the word “includes,” which usually means something is NOT exhaustive. See NB Broadcasting v
NS (1993) which held that s. 52(2) is not exhaustive and an unwritten doctrine of parliamentary privilege
should be included in the definition (despite the fact that 52(2) makes no reference to parliamentary
privilege). The preamble of the Constitution Act 1867 was used as justification (similar to that of the
UK). This case raises the possibility of further additions, which undermines certainty. So, this case shows
that the constitution is not limited to written documents (which seemed to be the case in 52(2)). It seems
best to confine this case to unwritten doctrines, and treat the scheduled list of instruments as exhaustive
(courts would have to be bold to add written documents to scheduled list of 30 acts and orders). Note the
supremacy clause (52(1)) which states that 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. This obviously calls for a definition of “Constitution of Canada,” which is given in s.
52(2). Also see the entrenchment clause (s. 52(3)) which states that amendments to the constitution of
Canada shall be made only in accordance with the authority contained in the constitution of Canada. By
entrenching the constitution, it cannot be amended by ordinary legislation, but only by special amending
procedures laid down in part 5 of the Constitution Act 1982. This obviously calls for a definition of the
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Constitution of Canada as well, which is what is entrenched. Canada‟s gradual evolution from colony to
nation has denied it any single comprehensive constitutional document. Also note that one disadvantage
to not having a single comprehensive document is that our constitution is not well suited for non-lawyers.
The Constitution Act 1867 and 1982 lack elegance and brevity, and do NOT include all the rules of
Canadian constitutional law. These rules have to be hunted down in a variety of places and sources:

Imperial statutes – the 1867 and 1982 Acts are both imperial statutes (enacted for Canada by the UK
Parliament). These two statutes are within the definition of “Constitution of Canada” in s. 52(2) of the
Con Act 1982 (two most important elements of the Con of Canada). There are 17 other imperial statutes,
mostly amendments to the Con Act 1867, and 4 orders in council, admitting to Canada the federal
territories and the princes of BC and PEI.

Canadian statutes – the definition in 52(2) includes 8 Canadian statutes. Three created Man, AB, and
Saskatchewan. The other 5 were amendments to the Con Act 1867. These 8 were enacted by Parliament
in the ordinary way. However, their inclusion in the definition means that they are now supreme over
other federal statutes by virtue of 52(1) Con Act 1982, and are entrenched and unalterable except by use
of the amending procedures by virtue of s. 52(3) of the Con Act 1982. Note that statutes like the Canadian
Bill of Rights, and the SC Act are statutes that are constitutional in nature, but aren‟t included in the 52(2)
definition. They can be repealed or amended by the ordinary legislative process.

Parliamentary privilege – includes the federal houses of parliament and provincial legislative assemblies
(see NB Broadcasting v NS). NS legislature was able to ban televising of its proceedings. Also includes
freedom of speech in debates and immunity from legal proceedings for anything said in debates. These
powers are “necessary to their capacity to function as legislative bodies.” See also Canada v Vaid
(covered in foundations – HR Commission and chauffeur driver). SCC held the hiring and firing of House
employees was not strictly an internal affair. This could be regarded as a branch of the common law in
that it isn‟t contained in statute and it is the courts who determine its existence and extent. 1) Privilege is
part of the Constitution of Canada and 2) it is not subject to the Charter. This distinguishes it from Royal
Prerogatives and the common law. There seems to be no difference between inherent privilege and
legislated privilege; both are exempt from the Charter.

Case law – the courts have the task of interpreting the Con Acts and the other con statutes. The case law
that interprets the Con Acts and the other con statutes is also con law. The SCC has not hesitated to find
“unwritten” principles that underlie the text of the Con Act 1867 and 1982. Aside from privilege, see Re
Remuneration of Judges which asserted the unwritten principle of judicial independence in the Con of
Canada. In Secession Reference, the SCC 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 provinces would come
under a legal duty to enter into negotiations to accomplish the secession. Thus, the cases carry the Con of
Canada way beyond the literal language of its text and intentions of the framers. Note the important of
case law in con law.

Prerogative –These are powers and privileges unique to the Crown (it is a branch of the common law).
Courts have confined prerogative powers over the years to governmental powers. Now relates to conduct
of foreign affairs, appointments of PMs and other ministers, issuing passports, and creation of Indian
reserves. These powers can always be displaced by statutes. Note that the exercise of the Crown‟s
prerogative powers is regulated by conventions, not laws.

Conventions – these are rules of the constitution that are not enforced by the law courts. Because
conventions regulate the working on the con, they are important. For i.e. 1) Con Act 1867 confer powers
to the GG or GG in Council, but a convention stipulates that the GG will exercise those powers only in
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accordance with the advice of the cabinet or PM; 2) s. 55 of the Con Act 1867 confers the right of the
Queen or GG 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. These are described as two of the
most fundamental rules of the con (but not enforceable by the courts). These two conventions have never
been thwarted.

Conventions and the Courts:
Although courts don‟t enforce conventions, they are occasionally recognized by the courts. In the
Patriation Reference, the SCC was asked whether there was a convention requiring that the consent of the
provinces be obtained before the federal government requested to the UK to enact an amendment to the
Con of Canada that would affect the powers of the provinces. Was there a legal requirement of provincial
consent? There was no legal requirement of provincial consent. However, they did acknowledge that
convention required the federal government to obtain a substantial degree of provincial consent before
requesting the requisite legislation from the UK. Although the courts didn‟t enforce a convention, it may
have been political suicide for the feds to not obtain a “substantial” degree of provincial consent. They
ultimately did reach a constitutional settlement which became the Canada Act 1982 and the Con Act
1982. 9 of 10 provinces agreed (not Quebec). Did “substantial” degree of provincial consent mean that
Quebec had to be included (at the time it included over 25% of Canada‟s population)? The SCC held that
Quebec‟s consent was not necessary to constitute a “substantial” degree. Should the courts have even
answered the convention questions? By answering, it definitely strengthened the hands of the provinces in
that negotiation. Hogg didn‟t think the courts should have answered the non-legal convention questions
(which led to concessions by the feds: overriding clause in the Charter, and the opting-out amending
formula).

Convention and usage:
A “convention” is a rule which is regarded as obligatory by the officials to whom it applies while a
“usage” is not a rule, but merely a governmental practice which is ordinarily followed, although it is not
regarded as obligatory. An i.e. of a usage is the practice of appointing to the position of CJ of Canada the
person who is the senior puisne judge of the SCC at the time of the vacancy. This has been departed from
many times, however. A usage may develop into a convention. Both are unenforceable, but there may be
a stronger moral obligation to follow a convention. Before the Patriation Reference there was no judicial
procedure for adjudicating a dispute about whether a practice was a convention or usage (it was the first
common law example of such a ruling, which was normally regarded as non-justiceable). The issue was
whether the past practice of securing provincial consents to constitutional amendments affecting
provincial powers was a usage or convention. Also note that if all relevant officials agree to adopt a
certain rule of constitutional conduct, then that rule may immediately be regarded as obligatory. For i.e. in
1930 the PMs of the self-governing dominions of the Commonwealth agreed that the King or Queen
would appoint the GG of a dominion solely on the advice of the government of the dominion.

Convention and law:
A convention could be transformed into law by being enacted as a statute. It would also be considered law
if the convention were enforced by the courts (it would become a legal rule enforceable by the courts). In
the Patriation Reference the provinces argued that the convention requiring provincial consents to con
amendments had “crystallized” into law, so there was a legal obligation to obtain provincial consents. The
courts rejected this. Law and convention are interlocked, because a breach of convention would probably
lead to a change in law (of Queen failed to give assent, a GG to act without advice, etc would quickly lead
to a statute). What if the PM failed to resign after losing his majority in the HOC? Much law even
presupposes convention since even modern statutes ignore the PM or provincial premier and his cabinet.
They always grant powers to the GG in Council (or Lieutenant Governor in Council) when they intend to
grant powers to the cabinet. These statutes assume conventions of responsible government will shift
effective power into the hands of the elected ministry where it belongs.
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    2. Amending procedures (Hogg chapter 4 “amendment” and 5.7 “secession”)
     See Constitution act 1982 Part 5 ss. 38 - 49

The BNA Act 1867 (not Con Act 1867) contained no general provision for its own amendment. The
framers were content with the imperial UK Parliament making the amendments. In 1931 when the Statute
of Westminster conferred upon Canada and other dominions the power to repeal or amend imperial
statutes applying to Canada, the BNA Act was excluded! The idea is that a constitution should be more
difficult to amend than any other statute. In 1930, a convention was created, however, that the UK
Parliament would not enact any statute applying to a dominion except at the request and with the consent
of that dominion (become a con convention). So, the UK would not amend the BNA Act (or any other
law applying to Canada) except at the request and with the consent of Canada. What about the provinces?
The two 1982 Acts were thought up, and Trudeau said if the provinces didn‟t like it, he‟d go to the UK
government unilaterally. These amendments had a significant effect on provincial powers. Three
provinces directed references to their Courts of Appeal asking
     (1) whether there was a requirement of law that provincial consents be obtained and
     (2) whether there was a requirement of convention that provincial consents be obtained.
HELD (SCC): 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”
(Patriation Reference). Shortly after, the PM and 9 Premiers agreed on an altered version of the
amendments. The agreement was sent to London, enacted by the UK Parliament as the Canada Act 1982,
which included, as Schedule B, the Con Act 1982. The Con act 1982 (part 5) introduces a set of amending
procedures which enable the BNA Act and its amendments to be amended within Canada without
recourse to the UK Parliament.
      The Canada Act 1982 formally terminates the authority of the UK Parliament over Canada.

The failure to accommodate Quebec
One thing the Con Act 1982 failed to achieve was the accommodation of Quebec within the Canadian
federation. The new amending procedures denied Quebec a veto, something which had been given in the
past. The Charter restricted the powers of the provincial legislatures and restricted Quebec National
Assembly from implementing French-language policy. Quebec was legally bound by the Con Act 1982
because the Act had been adopted into law by the correct constitutional procedures. The government also
“opted out” of the new Charter to the max extent possible under s. 33 “notwithstanding clause” into each
of its existing statutes and into every newly enacted statutes. Thus, the Con Act 1982 lacked political
legitimacy in Quebec. Reconciliation was attempted in the Meech Lake Constitutional Accord (1987)
which didn‟t get support from all 10 provinces and the Charlottetown Accord (1991) which was defeated
in a national referendum. This failure of constitutional change led to an even stronger separatist
movement in Quebec. In 1993, the Bloc took 52 of 75 seats and actually became the official opposition
in the federal parliament. In secession referendum in 1995 was defeated 50.6 to 49.4. The Chretien
government reacted to the close vote (assuming there would be another one) with two non-constitutional
statutes that were only modest measures to accommodate Quebec. The HOC recognized Quebec as a
“distinct society.”

Summary of Part V of the Con Act 1982
    Section 38 has a general amending procedure (amendments not otherwise provided for and
     amendments listed in s. 42), requiring the assents of the fed Parliament and 2/3‟s of the provinces
     representing 50% of the population.
    S. 41 provides for a unanimity procedure for 5 defined kinds of amendments. This requires
     assents of the fed Parliament and ALL of the provinces.
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       S. 43 require assents by fed Parliament and only those provinces affected (some-but-not-all-
        provinces procedure).
       S. 44 is when the fed Parliament alone is all that is needed (relates to the fed executive and
        Houses of Parliament)
       S.45 provides that each province along has power to amend “the constitution of the province.”

       Section 38(1)
This applies when none of the four more specific procedures (41, 43, 44, and 45) applies. There must be a
resolution of both Houses of the federal Parliament and resolutions of the legislative assemblies of at least
2/3s of the provinces (7 of 10 provinces must agree to an amendment) (provided that they represent at
least 50% of the population of all the provinces). This means at least one of 4 western provinces and at
least 1 of 4 Atlantic Provinces will agree. This is often called the seven-fifty formula.

Once the formula is made out, s. 38(1) provides that the formal act of amendment is accomplished by a
“proclamation issued by the GG under the Great Seal of Canada.” Section 39 imposes time limits on this
seal. The procedures for amendment may be initiated either by the Senate or the HOC or by the
legislative assembly of a province (s. 46(1)). “Opting out” is permitted by s. 38(3) in respect of any
amendment. It permits the legislative assembly of a province to pass a resolution of dissent to an
amendment and then that amendment shall not have effect in that province. A max of 3 provinces could
opt out of an amendment (if more than 3 than the amendment would not have the support of 2/3s and it
would be defeated). That means that if the amendment is passed, and say, Quebec dissents under 38(3),
then the amendment would have effect everywhere except Quebec. A resolution of dissent under s. 38(3)
must be passed prior to the issue of the proclamation. However, it can be revoked anytime before OR
after the issue of the proclamation (38(4)). A resolution of assent, however, may be revoked only before
the issue of the proclamation (s. 46(2)). Compensation by the federal government must be given to any
province that has opted out of an amendment that transfers provincial legislative powers over education
and cultural matters to the federal Parliament (s. 40). This is to ensure that a province is not pressured by
financial considerations into abandoning jurisdiction over educational or cultural matters. This only
applies to education and cultural matters. If a province opted out of a product standard regulation
amendment (federal government takes control), then the province would have to bear the cost of
regulating product standards. There would be no con right to compensation.

       Section 42
This provides that the general amending formula (seven fifty) be used for 6 defined classes of
amendments to the Con of Canada. Paragraphs (b) and (c) relate to the Senate. The purpose is to withdraw
these matters from the fed Parliament‟s unilateral amending power under s. 44 and to require that any
amendment be adopted by the 7-50 formula of s. 38. (d) refers to the SCC in all aspects other than its
composition (see 41(d)). (e) refers to extension of existing provinces into the territories and (f) refers to
the establishment of new provinces. Note 42(2) which prohibit any province from opting out of
amendments coming within s. 42. Thus, Quebec could not opt out of, let alone block, an amendment to
the HOC or SCC coming within s. 42(1), if the amendment was approved by the fed Parliament and
provinces representing 50% of the population. This illustrates the inferior protection provided to Quebec
by the opting out provision in comparison with a veto over con amendments.

Regional veto statute - is not provided for in general 7-50 formula for any province (let alone Quebec,
which used to have one). After the narrow defeat of Quebec‟s 1995 referendum on sovereignty, the fed
Parliament enacted a statute to ensure that Quebec would in future have a veto over most constitutional
amendment. But instead of conferring a veto on Quebec alone, the statute went back to the regional veto
idea of the Victoria formula:
      you need On, Quebec, BC, two Atlantic Provinces and two of the Prairie Provinces
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This was to import new conditions into the general 7-50 formula. Of course, since the veto is
statutory, it could be repealed or amended by Parliament at any time in the future. This statute
only applies to amendments that are to follow the general 7-50 amending procedure of s. 38 and
that do not afford a dissenting province the constitutional right to “opt out.” Thus, it doesn‟t apply to
s. 41 (unanimity) or s. 43 (some-but-not-all-provinces). This statute was supposed to give Quebec a
greater role after the 1995 referendum. Tried to do what Meech Lake and Charlottetown failed to do. This
was probably an unwise proposal (Hogg). For i.e., before the Act was enacted, the 7-50 procedure would
have enabled a distinct society clause to be put into the constitution without the assent of BC or Alberta
(where opposition was most intense in Meech and Charlottetown). However, the Act would now require
both because BC is recognized as a region and Alberta has more than 50% of the pop of the Prairie
Provinces.

        Section 41 (unanimity procedure)
It lists 5 matters of which an amendment to the Con of Canada requires the unanimous support of the
provinces, as opposed to the 2/3s majority called for by the general amending procedure of s. 38(1).
Involves matters of national significance, and all provinces have a veto power. a) Office of the Queen,
GG, and LG of a province (parliament can act unilaterally if there was, say, a change to the procedure
rather than a change to the actual constitutional makeup – see Royal Assent Act which provided for this
new procedure and was done so unilaterally; b) “senate floor” is established to limit the declining
representation of the maritime provinces. It entrenches the right of the least populous provinces to a min
number of member in the HOC; c) the use of the English or French language; d) composition of the SCC
(not clear what this means, but probably the number of judges who sit and number picked from various
regions and the mode of appointment probably not covered here. NOTE: this provision is probably
ineffective since rules regarding the composition of the SCC are contained in the SC Act, which is not
part of the constitution of Canada. Thus, the composition can be changed (probably) by the ordinary
legislative process of the Parliament of Canada; e) amendments to the amending procedures themselves.
Also note that 1 year does not have to elapse before the amendment can be proclaimed, however, the 3
year limit does not apply. There is NO time limit (if it takes more than 3 years to secure approvals from
everyone, then the amendment can still be proclaimed into law).

      Section 43 (some-but-not-all-provinces procedure)
Various provisions of the Con of Canada apply to one or more but not all provinces. S. 93 Con Act 1867
(education) applies to only 6 of 10 provinces. S. 97 of the Con Act 1878 (qualifications of judges) does
not apply to Quebec, etc. For the amendment of provisions of this kind, s. 43 requires authorizing
resolutions of only those provinces to which the amendment applies (as well as the senate and HOC).
Some amendments will be easier than others, depending on who is involved. For example, s. 97 applies to
everyone BUT Quebec, so there would need to be authorization by 9 of 10 provinces. It also explicitly
authorizes an amendment to any provision of the Con of Canada which applies to a single province.

      Section 44 (Federal Parliament alone)
Parliament may exclusively make laws amending the Con of Canada in relation to the executive
government of Canada or the Senate and HOC. They can do this by ordinary legislation. This section is
subject to ss. 41 and 42. This section replaced s. 91(1) of the Con Act 1867 (which conferred on the fed
Parliament the power to amend the Con of Canada). Even then, however, it was given a narrow meaning
by the SCC.

      Section 45 (Provincial Legislature alone)
This authorizes each provincial legislature, by ordinary legislation, to amend the con of the province (it is
subject to s. 41). This differs from 38, 41, 42, 43 and 44 in that 45 make no reference to the Con of
Canada. Instead, it refers to the “con of the province,” which is not defined anywhere in the Con Act
1982. This section replaced s. 92(1) of the Con Act 1867, which conferred on each provincial legislature
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the power to amend the “con of the province.” A law is an amendment to the con of the province if it
“bears on the operation of an organ of government of the province.” This definition embraces laws
respecting the abolition of a province‟s legislative council (upper house) (Newman), the powers and
privileges of the legislative assembly (Fielding v Thomas [1896]), and the term of the legislative assembly
(Tolfree v Clark [1943]). Section 45 is somewhat obscured by s. 43 (re-explore this).

Central institutions: If French Canadians and western Canadians could be confident that their interests
would be fairly accommodated in the development of federal policies, then, so the argument goes, they
would have less reason to demand that powers be transferred from federal institutions to provincial
institutions. Thus, the reform of central institutions becomes an alternative to decentralization of powers
as a means of redressing regional grievances. This is termed “intrastate federalism.” The most popular
application of intrastate federalism by constitutional reformers has been to the Senate. Idea has been to
convert (like Germany) the Senate into a “House of Provinces” with members appointed by provincial
governments. This is a way provinces could exercise direct control over the federal government. Another
example is the SCC. Idea has been to introduce a provincial role in appointment of judges, ensuring
judges are drawn from all regions of the country.

Criticism of amending procedures: Amendments will nonetheless be difficult because of the high level of
agreement required by the general amending procedure. Unanimity is even harder; note Meech Lake
which did have unanimous agreement, but a change in government caused the deal to fall through (didn‟t
respect decision of previous government). Thus, ratification expired after 3 years. The three year man for
ratification is too long (Hogg). In the case of the Meech Lake Accord, it allowed the process to drift on
while elections were held and governments changed. Also note that the defeat of the Charlottetown
Accord shows that no amount of public consultation guarantees the success of proposals to amend the
Con.

Hogg, Chapter 5.7 “Secession”

The power to secede: In Canada, the absence of any provisions in the Con authorizing secession makes
clear that no unilateral secession is possible. This became an issue in Quebec after the election in 1976,
later leading to a referendum in 1980 (whether voters would give to the government a mandate to
negotiate a “sovereignty-association” agreements with the government of Canada). This was rejected by
Quebec voters.
      Matters didn‟t help after 1982 Con Act, which Quebec did not agree to.
      Meech Lake would have led to Quebec‟s approval, but it fell through.
      Charlottetown was later defeated as well.
      After these failures, the Parti Quebecois won, and held another referendum in 1995. After the
         slim loss, the fed government took the matter seriously and came to secure a legal ruling on the
         validity of a unilateral declaration of independence.
The Secession Reference was a reference by the fed government asking whether Quebec could secede
unilaterally. Secession would require an amendment of the Con of Canada, and would have to be
accomplished in accordance with the Con‟s amending procedures. Thus, they would have to negotiate
with the feds and other provinces, and could not secede unilaterally. NOTE: the court said that a
referendum in Quebec that yielded a “clear” majority on a “clear” question in favour of secession, while
ineffective by 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.” This was an unwritten constitutional principle of democracy and
federalism (constitutionalism and the rule of law and protection of minorities).
       The court noted that an unconstitutional secession may nonetheless take place. If it achieved
          effective control of a territory and recognition by the international community, then it would be
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          possible, and the rest of Canada would have to come to grips with that (principle of
          effectiveness).
The Clarity Act was passed, which stated that it would be for political actors and NOT courts to
determine whether a referendum had yielded a “clear” majority on a “clear” question. If the HOC
determines that “the question would result in a clear expression of the will of the population of a province
on whether the province should cease to be part of Canada and become an independent state,” then this is
“clear.” The Act does not define when a majority is clear.

Secession by amendment: The SCC affirmed that the obvious way to achieve secession is to amend the
Con of Canada. However, which of the 5 amending procedures is the correct one? It could either be
section 38 (7-50) or s. 41 (unanimity). The argument for s. 38 is that s. 38 covers all matters not
specifically provided for elsewhere in the amending procedures, and secession is not provided for
anywhere else. Argument for s. 41 is that it would indirectly affect the matters specified in s. 41. SCC did
not answer this question.
       There is no historical basis for the proposition that a referendum in the province that desires to
         secede should impose an obligation of negotiation on the other parties to the amending
         procedures. However, this is now the law of Canada.

Secession by unilateral act: The SCC in the Reference held that Quebec had no right to secede unilaterally
from Canada, even if secession was approved by a clear majority of people in Quebec voting in a
referendum on a clear question. However, the referendum would give rise to a con obligation on the part
of the feds and other provinces to negotiate in good faith with Quebec with a view to producing an
agreed-upon amendment to the Con of Canada. But what if they didn‟t come to agreement? SCC
recognized this possibility and said a unilateral secession would be recognized by the principle of
“effectiveness.” It would confer a de facto secession. It would be illegal (unconstitutional), but would
be more like a revolution and would eventually be part of a legitimate new legal order.

Reference re Secession of Quebec, [1998] 2 SCR –

    Federalism and Judicial Review (Hogg, Charter 5 “Federalism”)
      Con Act 1867, ss. 91-95
      Con Act 1982, s. 52 (supreme law section and definition of “Con of Canada”)

Federalism – governmental power is distributed between a central (or national or federal) authority and
several regional (or provincial or state) authorities, in such a way that every individual in the state is
subject to the laws of two authorities, the central authority and a regional authority. The authorities are
coordinate, that is, neither is subordinate to the other. Within a federal state, local or municipal
governments are subordinate to a regional state, for example, the city of Montreal is subordinate to the
Province of Quebec. If there is inconsistency between federal and provincial law, the federal law prevails.
But note that they are not subordinate. It is the legal guarantee of autonomy to each of the regional
authorities, which justifies the description of them as coordinate with the central authority. The growth of
central power in the principal federations the question whether a state is still truly “federal” depends upon
whether there is still “an area of guaranteed autonomy for each unit of the system” (there still is in
Canada!).
     In a federation, a citizen is subject to two levels of government which are, to some degree, legally
         and politically independent of each other. There is, of course, some overlap. It is only where the
         scope of central control is limited that we have a federal system (Hogg).

Confederation – the process of union which culminated in 1867 is often described as “confederation.”
The term confederation has now become an accepted term for the Canadian union of provinces.
                                                     10



Special status: Quebec has de facto special status because it opted out of the Canada Pension Plan and the
Hospital Insurance Plan (but the other provinces could follow suit). Hogg thinks that “distinct society”
recognition for Quebec could not create a special status. It doesn‟t confer anything per se, it is just
interpretive. The 1995 resolution in Parliament after the close secession vote declared Quebec a distinct
society (though it wasn‟t a statute nor a constitutional change). It was even opposed by Quebec because it
didn‟t go far enough!

Regions: It has no precise meaning in Canadian political discourse. Originally, three regions were
recognized (Ontario, Quebec, and the three maritime provinces). In 1915, the 4 western provinces were
recognized as a 4th division (senators are appointed according to regions). Membership of the SCC has
also been based on a regional idea. Note that the regional veto statute, passed in Parliament in 1996, has
the indirect effect of incorporating regions into the 7-50 formula.

Reasons for federalism – it was a compromise between proponents of unity and proponents of diversity.
It isn‟t just the second-best to the legislative union. Dividing a country up so the national government is
responsible for matters of national importance and provincial governments are responsible for matters of
local importance is a good idea in a large/diverse country. Provinces may also adopt more radical ideas
that aren‟t in conformity with the country as a whole. In this sense, a province can serve as a social
laboratory in which new kinds of legislative programmes can be tested. For example, medicare (which
started is Saskatchewan in 1961) became a national programme in 1968. Federalism also acts as a check
to prevent tyranny (power is divided to ensure it isn‟t too concentrated in any particular area).

Federalism in Canada
         The terms of the Constitution
It seems like the framers of the BNA Act planed a strong central government. Banking, marriage and
divorce, the criminal law and penitentiaries were topics allocated to the federal Parliament of Canada (but
reserved in the United States). Literal reading of the Con Act 1867 would make one infer that the
provinces were subordinate. Fed Parliament has lots of powers (s. 90 disallow provincial statutes, s. 58
gave the power to appoint the LG in each province, s. 96 allows the fed government to appoint the judges
of the superior, district, and county courts of each province, etc). However, case law, convention and
practice have helped the provinces develop from this position of subordination. Although there was
central dominance in the early years of confederation, Canada‟s federal system is now even less
centralized than the US or Australia. However, note:
     (a) judicial interpretation of the distribution of powers. Up until 1949, the PC believed strongly in
         provincial rights (Lord Watson and Lord Haldane). They established precedents that elevated the
         provinces to coordinate status with the Dominion. They had a provincial bias, which Quebec
         loved. The point is, the distribution of powers in the Con of Canada is much less favourable to the
         fed power than would be suggested merely by comparing the text with that of the American or
         Aus Cons.
     (b) financial arrangements play more in favour of the provinces than the fiscal dominance seen in the
         BNA Act (especially since the Second World War). The federal power to
     (c) disallow provincial statutes was frequently exercised by the dominant fed government in the early
         years of confederation. Its use today would provoke intense resentment on the part of the
         provinces.
     (d) federal power to appoint LGs is another apparent breach of the federal principle. This power is
         regularly exercised by the federal government, but once an appointment is made the LG is in no
         sense the agent of the federal government: he is obliged by the conventions of responsible
         government to act on the advice of the provincial cabinet. Section 90 of the Con Act 1867 allows
         LG to withhold Royal Assent and to “reserve” a bill for consideration by the fed government, but
                                                     11


        this never happens (probably as arcane as disallowance). Fed government under s. 96 of the Con
        Act 1867 can
    (e) appoint judges to superior, district or county courts when a position needs to be filled. However,
        judicial independence is so strong that judges never seem to favour federal interests over
        provincial. The SCC is a federal court created by a federal statute. Should this court depend on
        one government and Parliament for its existence? So sign that Ottawa will abolish the court ever.
        Should the Court be entrenched in the Con and should provinces be given a role in appointing
        judges?

Role of the Courts
Section 52(1) is the current basis of JR in Canada. JR was also broadened with the Charter. This limits the
powers of legislative bodies, thus adding limits which gives rise to JR in the same way as the limits
created by the distribution-of-powers provisions. Some JR is inevitable within the existing institutional
structure of Canada. The fact is that disputes as to the distribution of legislative power are inevitable
within a federation, and ultimately there is no body with power to decide them other than the
courts.

Limitations of judicial review: One function of JR is to enforce the distribution-of-powers rules (the rules
of federalism). The courts often have to determine whether a particular statute comes within the powers
conferred by the Con on the legislative body that enacted the statute. A second function of JR is to
enforce the Charter restrictions. Whether JR takes place on distribution-of-powers (or federalism) grounds
or on Charter grounds, it appears to be a normal judicial task, since it involves the interpretation of an
authoritative text, the Con of Canada. There can be no doubt that JR permits, indeed requires, non-elected
judges to make decisions of great political significance. Yet Canada‟s adoption of the Charter was a
conscious decision to increase the scope of JR. Hogg says there should, nonetheless, be a presumption of
constitutionality. In this way a proper respect is paid to the legislators (thereby minimizing judicial policy
preferences).

Amending power
Every nation needs the power to amend its con. When a state has a rigid con, it becomes more difficult to
amend. Federal states always have at least partially rigid cons because it is essential that at least the
power-distributing parts of the con be protected from change by the unilateral action of either the central
or regional legislative bodies.

Cooperative federalism
Demands of interdependence of government policies, equalization of regional disparities, and con
adaptation have combined to produce what is called cooperative federalism. The essence is a network of
relationships between the executives of the central and regional governments. This allows redistribution
of powers and resources with recourse to the courts or the amending process. This has been most relevant
in federal-provincial financial arrangements. Most intergovernmental relationships depend upon informal
arrangements which have no foundation in the Con, or in statutes, or in the conventions of parliamentary
government (first ministers‟ conferences, for i.e.).


PART II – DISTRIBUTION OF POWERS

    Principles of Interpretation (Hogg, Chapter 15 “JR on federal grounds”)

If a law is invalid for federal grounds or charter grounds than the effect is the same. However, in
determining the validity of a law, the first question is whether the law is within the law-making power
of the enacting body and second whether it is consistent with the Charter. Note s. 32(1) of the Charter
                                                       12


which makes the Charter applicable to the fed Parliament and provincial legislatures. Note the phrase in
the section “in respect of all matters within the authority of” the Parliament or the legislature. This limits
the Charter to laws within the distribution-of-powers authority of Parliament or the legislature. Thus, the
Charter does NOT apply to a law that is ultra vires on federal grounds (the law is invalid, of course, but
only for breach of power-distributing provisions of the Con). Hogg says that the court will only make a
decision on the ground that seems strongest to the court. So, laws denying fundamental political liberties
is a s. 2 Charter issue, even if there are more complex issues of federalism as to which level of
government should be responsible for protecting political freedoms. If the law is justified under section 1,
then the federal issue can be decided. Hogg argues, as stated above, there is a priority over federal issues
over Charter issues. Another argument in favour of this is the s. 33 notwithstanding clause (parliament or
a legislature can create a statute that overrides most of the provisions in the Charter. Statute is valid
notwithstanding a breach of Charter rights). There is no similar saving provision for a breach of federal
distribution of powers.

Pith and substance analysis:
    1. What is the essential character of the law?
    2. Does the character relate to an enumerated head of power granted to the legislature in question by
       the Constitutional Act 1867?

        Essential Character of law (the “matter”) (step 1)

The first step in JR is to identify the “matter” of the challenged law.
      The general idea is that it is necessary to identify the dominant or most important characteristic of
         the challenged law.
In identifying the matter of the law, the courts tend to use concepts that will assist in determining to
which head of power the matter should be allocated (i.e. if a law were characterized as in relation to the
regulation of insurance, it would be competent only to the provinces – property and civil rights of a
province s. 92(13)). Banking, for example, is clearly a federal class of subjects (Bank Act) (s. 91(15)). So,
often, the identification of the “matter” of a statute will often effectively settle the question of its validity,
leaving the allocation of the matter to a class of subject little more than a formality.
      Difficulty arises when a law comes within one provincial AND federal head; for example, a
         law to impose direct tax on banks. Direct taxation is a provincial class of subject (s. 92(2)) and
         banking is a federal class of subject (s. 91(15).
What the courts do in cases of this kind is to make a judgement as to which is the most important feature
of the law and to characterize the law by that feature: that dominant feature is the “pith and
substance” or “matter” of the law and the other feature is merely incidental, irrelevant for
constitutional purposes
             o Bank of Toronto v Lambe (1887) where PC upheld a provincial law which imposed a tax
                  on banks. It was “in relation to” taxation (the matter) and merely “affected” banking.So,
                  law can affect matters outside its jurisdiction. In this case, it had a substantial effect on
                  banking, but the matter was in relation to taxation.

Singling out:
Alberta Bank Taxation Reference is occasionally read as prohibiting the provincial legislatures from
“singling out” banks or other federal undertakings for special treatment (imposed a special tax solely on
the banks). The pith and substances of the law was to discourage the operation of the banks in Alberta. Its
“matter” came within banking” and the taxing quality of the law was merely incidental. The province‟s
power to tax could not save the law, because its pith and substance was NOT taxation). But laws
“singling out” groups have been allowed. For i.e. a provincial electoral law has been upheld
notwithstanding that it discriminated against certain aliens and naturalized subjects (this being a federal
                                                       13


class (91(25)). So, the singling out of undertakings within federal jurisdiction is not conclusive of pith and
substance.

Double aspect: The PC has held that “subjects which is one aspect and for one purpose fall within s. 92,
may in another aspect and for another purpose fall within s. 91.” This is known as the double aspect
doctrine. When the courts find that the fed and provincial characteristics of a law are roughly equal in
importance, then the conclusion is that laws of that kind may be enacted by either Parliament or a
legislature (Lederman).
     Road offences can often come within “property and civil rights in the province” (92(13))
         (provincial) AND the “criminal law” (91(27)) (federal) (see O’Grady v Sparling).
     Securities are another area of law that has a double aspect. Provincial power (office for false
         prospectus and remedy for insider trading) comes under “property and civil rights in the
         province” and federal power of the two comes from the “criminal law” for false prospectus and
         federal power to incorporate companies (s. 91 opening words) in the case of insider trading.

Purpose: The Court will (in determining the matter, pith, or substance, as seen in Alberta Bank Taxation
reference) look beyond the direct legal effects to inquire into the social or economic purposes which the
statute was enacted to achieve.
     If the Court concludes that the purpose of the ostensible tax is to regulate or destroy the banks,
         then the law will be characterized as being in relation to banking and will be held to be invalid.
The different outcomes in Big M and Edwards Books turned on the different purposes of the challenged
laws: the prohibition of work on Sunday fell within federal or provincial competence depending upon
whether the purpose of the prohibition was religious or secular (the criminal character of the Lord‟s Day
Act flowed from its purpose, which was the religious).
     In Edwards Books, the Ontario Act preventing retail stores from opening on Sunday was a valid
         exercise of provincial power over property and civil rights since it was a secular purpose.
     In Ward v Canada (2002) the SCC had to characterize a fed law that prohibited the sale of baby
         seals. A law regulating the marketing of seals would be within the provincial authority over
         “property and civil rights in the province. But the Court accepted evidence that the purpose of the
         law was the indirect one of limiting the killing of baby seals. They thus held that the pith and
         substance of the law was the management of the fishery, which came within the federal authority
         over “sea coast and inland fisheries” (s. 91(12)). The law was upheld.

Effect: In characterizing a statute (identifying its matter or pith and substance) a court will always
consider the effect of the statute, in the sense that the court will consider how the statute changes the
rights and liabilities of those who are subject to it. In the Alberta Bank Taxation Reference, the PC
examined the impact on the banks of the tax which Alberta proposed and used the severity of the tax as
one of the reasons for concluding that the statute should be characterized as in relation to banking rather
than taxation. Also note Saumur v Quebec (1953) where a by-law prevented circulation of literature
unless permission was given from chief of police. 4 judges in the SCC agreed that its purpose was to
protect pedestrian traffic or controlling litter in the streets (topic of provincial regulation). However, 5, a
majority, took note of the way in which the by-law was administered. The chief of police acted as a
sensor, limiting literature that he found objectionable (Jehovah witness literature).

Efficacy: So, in characterizing a statute for the purpose of JR on federal grounds, it is relevant to look at
the purpose of the statute and the effects of the statute. However, it doesn’t mean that courts can pass
judgement on the likely efficacy of the statute. That would breach the longstanding injunction that
courts are NOT concerned with the wisdom or policy of legislation.
     A reviewing court may well believe that the legislative policy is misguided, but that belief should
        play no role in classifying the law for constitutional purposes.
                                                       14


In Re Firearms Act (2002) the question was whether Parliament‟s gun control legislation should be
upheld as criminal law. It was to promote public safety (typically a criminal purpose), but opponents
argued registering guns would be useless and create more red tape for hunters and farmers. The court held
that “Parliament is the judge of whether a measure is likely to achieve its intended purposes;
efficaciousness is not relevant to the Court‟s division of powers analysis.”

Colourability: The “colourability” doctrine is invoked when a statute bears the formal trappings of a
mater within jurisdiction, but in reality is addressed to a matter outside jurisdiction. In the Alberta
Banking Reference, the PC held that the legislation, although ostensibly designed as a taxation measure,
was in reality directed at banking. See R v Morgentaler (No. 3) (1993) where the SCC struck down a NS
statute that required “designated” medical procedures to be performed in hospital (abortion being one of
them). On the face of it, the statute seemed to be a health measure (within the con power of a province).
In reality it was in response to a possible abortion clinic being opened up. The court struck down the
statute in its entirety despite the fact that 8 of 9 designated hospital procedures had nothing to do with
abortion! This is a remarkable application of the colourability doctrine (Hogg).
      The colourability doctrine applies the maxim that a legislative body cannot do indirectly what it
         cannot do directly.

Presumption of constitutionality: Judicial restraint in determining the validity of statutes may be
expressed in terms of a “presumption of constitutionality.” This includes reading down the law so as to
confine it to those applications that are within the power of the enacting legislative body.

Severance
For constitutional purposes the statute is one law, and it will stand or fall as a whole when its validity is
questioned. If part of the statute is good and part not good, will the court “sever” the bad part, thereby
preserving the good part, or whether the court should declare the entire statute to be bad?
     The rule developed is that severance is inappropriate when the remaining good part is so
        inextricably bound up with the part declared invalid that what remains cannot independently
        survive. It may be severed if the opposite is true.
     It is rare for severance to be invoked by the courts.
     There seems to be a presumption that a statute embodies a single statutory scheme of which all
        the parts are interdependent (Hogg).
A “severance clause” is a section of a statute that provides that, if any part of the statute is judicially held
to be unconstitutional, the remainder of the Act is to continue to be effective. However, the only case
dealing with this didn‟t listen to the severance clause in a statute, and deemed the whole thing to be
unconstitutional (PC in AG of BC v AG of Can, [1937]).
     Severance is more common with Charter cases than federalism cases. It is unusual to find that an
        entire statute is struck down under the Charter. For example, the entire criminal code isn‟t going
        to be struck down if the felony-murder rule isn‟t charter compliant (R v Vailancourt, [1978]).
     The only Charter case that struck out the entire statute was in R v Big M Drug Mart. The Lord‟s
        Day Act was wholly bad. Note that the presumption against severance in federalism cases is
        the opposite in Charter cases.

Reading down
Whenever possible, a statute is to be interpreted as being within the power of the enacting legislative
body. General language in a statute which is literally apt to extend beyond the power of the enacting
Parliament or Legislature will be construed more narrowly so as to keep it within the permissible scope of
power.
     The enacting legislative body is presumed to have meant to enact provisions which do not
       transgress the limits of its constitutional powers (presumption of constitutionality).
                                                     15


The Family Relations Act of BC, which authorizes the division of family assets on divorce, has been read
down to exclude property on an Indian reserve, because the right to property on an Indian reserve is
exclusively within the federal power. The general idea that a law should not be held to be wholly invalid
just because it overreaches the limits of jurisdiction in certain respects is obviously in accord with a
properly restrained role for the courts. Reading down allows the bulk of the legislative policy to be
accomplished, while trimming off those applications that are constitutionally bad.

Inter-jurisdictional 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 (validity, applicability, and operability):
    1. It may be argued that the law is invalid because the matter of the law (or its pith and substance)
        comes within a class of subjects that is outside the jurisdiction of the enacting legislative body
        (Alberta Bank Taxation Reference for i.e.);
    2. A law may not be deemed invalid, but simply inapplicable to the extra-jurisdictional matter
        (reading down doctrine). This is treated as inter-jurisdictional immunity;
    3. A third way of attacking a law that applies to a matter outside the jurisdiction of the enacting
        body is to argue that the law is inoperative through the doctrine of paramountcy. It states that,
        where there are inconsistent federal and provincial laws, it is the federal law that prevails;
        paramountcy renders the provincial law inoperative to the extent of the inconsistency. It is a form
        of attack available only against a provincial law, and then only when there is a conflicting federal
        law in existence.

Federally-incorporated companies: The idea of IJI finds its genesis in cases concerning federally-
incorporated companies. An otherwise valid provincial law may not impair the status or essential powers
of a federally-incorporated company. Thus, a provincial law prohibiting all extra-provincial companies
from operating in the province (John Deere Plow v Wharton) has been “read down” to exempt federally-
incorporated companies.

Federally-regulated undertakings: Undertakings engaged in interprovincial or international
transportation or communication, which come within federal jurisdiction under the exceptions to 92(10)
are immune from otherwise valid provincial laws which would have the effect of “sterilizing” the
undertakings. In the Bell 1966 case (1966), the SCC abandoned the language of sterilization and held that
the Bell Telephone Company (an interprovincial undertaking) was immune from a provincial minimum
wage law on the lesser ground that such a law “affects a vital part of the management and operation of the
undertaking” (vital part test).
      This case shows that workers in federal industries were not protected by minimum wage laws,
         because at that time there was no federal minimum wage.
In Irwin Toy v Quebec (1989) the SCC had to decide whether a Quebec law that prohibited advertising
directed at children could apply to advertising on television (federally regulated medium). Advertising
was a “vital part” of the operation of a television broadcast undertaking. BUT, the vital part test applied
only to provincial laws that purported to apply directly to federal undertakings.
      Since the effect of the provincial law on a television undertaking was indirect, it did NOT matter
         that the law affected a vital part of the undertaking. Therefore, the provincial law was valid and
         effective to prevent advertisers in Quebec from placing advertisements directed at children on
         television (qualification to the vital part test). Now see...

Canadian Western Bank v Alberta [2007] (changed IJI).
      It would only apply if a “core competence” of Parliament of 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 by a provincial law, no immunity applied.
The indirect/direct distinction in Irwin Toy was overruled. In the absence of impairment, IJI does not
                                                     16


apply. The same outcome would have applied in Bell 1988 (provincial law to reassign pregnant
employees to work near monitors). Is the service of liquor a vital part of the undertaking of an airline (Air
Canada v Ontario (1997))? An airline objected to paying a mark-up charge by the provincial liquor
monopoly on liquor that was loaded onto aircraft from a bonded warehouse for consumption in the air.
The airline took the position that the charge was an attempt by the province to regulate a vital part of its
undertaking, Food and water, for example, were essential for long flights. BUT the provision of liquor,
however attractive to the airline‟s customers, is not essential to the operation of the aircraft.” The airline
was required to pay the mark-up.

IJI applies outside transportation and communication. Provincial labour laws have been held inapplicable
to postal workers (Re Minimum Wage Act (Sask.)) and even teachers on a military base (AG Can v St-
Hubert Base Teachers’ Association [1983]).

Rationale of IJI: The theory behind the results is that each head of federal power not only grants power
to the federal parliament but, by “being exclusive,” denies power to the provincial Legislatures. There is
no doubt that provincial law that prohibits the posting of federal election signs would be invalid (it‟s a
federal matter). The doctrine of IJI insists that the same result cannot be accomplished by the enactment
of a broader law that, by reason of its non-federal applications, could be characterized as in relation to a
provincial matter (land use) (see McKay v the Queen [1965]).
      The pith and substance doctrine, while allows a provincial law to “affect” a federal matter, is
         applied much more frequently than the IJI doctrine, which reads down the provincial law to
         exclude the federal matter.
The leading case is Bank of Toronto v Lambe (1887), which decided that a provincial tax could validly
apply to a bank, although a bank is a federal undertaking. Canadian Western Bank (above) narrowed
the doctrine by insisting that, if a provincial law merely affected (without having an adverse effect on) the
core of a federal subject, then the doctrine does not apply. In that case, the pith and substance doctrine
would prevail, enabling the provincial law to apply to the core of the federal subject.

Provincial subjects: The cases discussed so far concern the impact of provincial laws on federally-
incorporated companies, federally-regulated undertakings, and other federal persons or subjects. The
doctrine of IJI ought to be reciprocal, protecting provincial subjects from incursion by federal laws.
This is because the rationale for the doctrine is the exclusivity of the principal heads of legislative power,
and the provincial heads of power in s. 92 of the Con Act 1987 are just as exclusive as the federal heads
in s. 91. The conclusion must be that each provincial head of power, no less than each federal head of
power, has a “basic, minimum and unassailable content” that is immune from incursion by the other level
of government. So, IJI should operate both ways. See Clark v CNR (1988) where a limitation period in the
federal Railway Act was read down to apply only to civil causes of action created by the Act, thereby
excluding common law tort actions (core provincial subject).


        Applying the character to an enumerated head in the 1867 Act (step 2)

Relevance: Once the matter (or pith and substance) of a challenged law has been identified, the second
stage in JR is to assign the matter to one of the “classes of subjects” (or heads of legislative power)
specified in the Constitution. So, there must be interpretation of the power-distributing language of the
Con.

Exclusiveness: Each list of classes of subjects in s. 91 or s. 92 of the Con Act 1867 is exclusive to the
Parliament or Legislature to which it is assigned. So, a matter will come within a class of subjects in only
one list. This does not mean that similar or identical laws may not be enacted by both levels of
                                                      17


government. Some laws are available to both levels, but that is because such laws have a double aspect
(or two matters), not because they duplicate or overlap each other.

Concurrency: Although the classes of subjects are exclusive to the Parliament or Legislature, there are
three provisions that explicitly confer concurrent powers:
     (1) 92A(2) confers provincial Legislatures the power to makes laws in relation to the export of
         natural resources and s. 92A(3) is explicit that the power is concurrent with the fed Parliament‟s
         trade and commerce power.
     (2) 94A (old age pensions for fed government), which acknowledges the existence of concurrent
         provincial power.
     (3) Third, s. 95 confers on both the federal parliament and legislature‟s concurrent powers over
         agriculture and immigration.
Thus, in the Canadian scheme of distribution, exclusivity is the rule and concurrency the exception.
But note the double aspect doctrine. For example, a law prohibiting careless driving has a criminal
(federal) aspect and a highway regulation (provincial) aspect. Such a law is competent to both levels of
government. This leads to concurrent legislative power. The second judge-made doctrine that leads to
concurrency is the “pith and substance” doctrine. If the pith and substance of a law comes within the list
of the legislative body that enacted it, then the law is valid, and it is no objection to the law that it also
incidentally regulates a matters falling within the other list. The custody of children may be regulated
incidentally under the federal divorce power, although the custody of children is otherwise a matter
coming within provincial competence. This is one of many subjects upon which legislative power is in
practice concurrent.

Exhaustiveness: The distribution of powers between the fed parliament and the provincial legislatures is
exhaustive. The framers did, however, make provisions for new or unforeseen kinds of laws. The last of
the enumerated provincial classes of subjects in s. 92 is “generally all matters of a merely local or private
nature in the province” (92(16)). In 91, the federal parliament has the residuary power to make laws for
the peace, order, and good government of Canada in relation to all matter not coming within the classes of
subjects assigned exclusively to the legislatures of the provinces.
     Thus, any matter which does not come within any of the specific classes of subjects will be
        provincial if it is merely local or private (92(16)) and will be federal if it has a national dimension
        (s. 91 opening words).

Progressive interpretation: The doctrine of progressive interpretation is one of the means by which the
Con Act 1867 has been able to adapt to the changes in Canadian society. The general language used to
describe the classes of subjects (heads of power) is not to be frozen in the sense in which it would have
been understood in 1867. For i.e., the phrase “undertakings connecting the provinces with any other or
others of the provinces” (s. 92(10)(a)) includes interprovincial telephone system, although the telephone
was unknown in 1867.The words in the Act are to be given a “progressive interpretation” so that they are
continuously adapted to new conditions and new ideas. Note the phrase: “the BNA Act planted in
Canada a living tree capable of growth and expansion within its natural limits” (Edwards v AG Can
[1930] per Lord Sankey). Note also the Same-sex Marriage Reference [2004]. No doubt the framers
envisaged marriage to be between a man and a woman (it was criminal until 1969, in fact). The idea
underlying the doctrine is that the Con Act 1867, although a statute, is not a statute like any other: it is a
constituent or organic statute which has to provide the basis for the entire government of a nation over a
long period of time.

Unwritten constitutional principles: (Extreme example) - Section 96, the text which provides simply for
the federal appointment of the judges of the superior, district, and country courts in each province, is now
encrusted with an elaborate body of doctrine that protects the jurisdiction of superior courts and restricts
the creation and empowering of inferior courts and admin tribunals. Cases come before the courts that
                                                      18


were not foreseen when the text was drafted, and the courts see implications in the text that were not
obvious when it was drafted; each new case becomes precedent, and before long there is a lot of detailed
doctrine to supplement some brief phrase in the general language of the Con. In this sense, no one doubts
that judges make new law.

Democracy, constitutionalism, the rule of law, the independence of the judiciary, the protection of
civil liberties and federalism are among those principles (unwritten). See...
     Manitoba Language Reference (1985) where the rule of law was invoked to solve the crisis that
         would have resulted from the Court‟s holding that all of the laws of Manitoba enacted since 1890
         were invalid. The solution was to hold the laws enacted in English to be invalid, but also to hold
         that the laws were to remain in force for a temporary period stipulated by the Court while the
         existing laws were translated and re-enacted. In
     Re Remuneration of Judges (1997) the SCC held that three provincial statutes reducing the
         salaries of provincial court judges were unconstitutional, because they violated judicial
         independence.
     Secession Reference (1998) held that secession must respect 4 unwritten principles of the Con,
         those of democracy, federalism, constitutionalism, and the protection of minorities. The court
         held that democracy and federalism required that, if a province voted to secede, the rest of
         Canada would come under a legal obligation to negotiate the terms of secession with that
         province. This obligation to negotiate had never been suggested before and had not even been
         argued by counsel!

Canadian Western Bank v Alberta, [2007] 2 SCR
In 2000, Alberta enacted changes to its Insurance Act purporting to make federally chartered banks
subject to the provincial licensing scheme governing the promotion of insurance products. Upon the
coming into force of that Act, the appellant banks brought an application for a declaration that their
promotion of certain insurance products authorized by the Bank Act was banking within the meaning of
s. 91(15) of the Constitution Act, 1867 and that the Insurance Act and its associated regulations were
constitutionally inapplicable to the banks‟ promotion of insurance by virtue of the doctrine of
interjurisdictional immunity or, alternatively, inoperative by virtue of the doctrine of federal
paramountcy.

When promoting insurance, the banks are participating in the business of insurance and only secondarily
furthering the security of their loan portfolios. The banks‟ claim to interjurisdictional immunity must
therefore be rejected, and they have to comply with both federal and provincial laws because the
paramountcy doctrine is not engaged in this case. The corollary to this analysis is that legislation whose
pith and substance falls within the jurisdiction of the legislature that enacted it may, at least to a certain
extent, affect matters beyond the legislature‟s jurisdiction without necessarily being unconstitutional. The
pith and substance doctrine is founded on the recognition that it is in practice impossible for a legislature
to exercise its jurisdiction over a matter effectively without incidentally affecting matters within the
jurisdiction of another level of government.
      In certain circumstances, however, the powers of one level of government must be protected
         against intrusions, even incidental ones, by the other level. For this purpose, the courts have
         developed the doctrines of interjurisdictional immunity and federal paramountcy (inresponse to
         double aspect doctrine).
To trigger the application of the immunity, it is not enough for the provincial legislation simply to affect
that which makes a federal subject or object of rights specifically of federal jurisdiction. The difference
between “affects” and “impairs” is that the former does not imply any adverse consequence whereas the
latter does. In the absence of impairment, interjurisdictional immunity does not apply. It is when
the adverse impact of a law adopted by one level of government increases in severity from affecting
                                                     19


to impairing that the core competence of the other level of government or the vital or essential part
of an undertaking it duly constitutes is placed in jeopardy, and not before.
     HELD: In the instant case, the pith and substance of the Alberta Insurance Act relates to property
        and civil rights in the province under s. 92(13) of the Constitution Act, 1867, and is a valid
        provincial law. A bank in promoting optional insurance is not engaged in an activity vital or
        essential to banking. The doctrine of federal paramountcy is also inapplicable because neither
        operational incompatibility nor the frustration of a federal purpose has been made out. Since
        2000, the banks have been promoting insurance in Alberta while complying with both the federal
        Bank Act and the provincial Insurance Act.

    Paramountcy

The doctrine of implied repeal applies in Canada to resolve conflicts between laws enacted by the same
legislative body (two statutes of the fed Parliament or two statutes of the Ontario legislature, for
example). But in a federal system there is also the possibility of conflict between the statutes of different
legislative bodies within the federation. The adopted rule is the doctrine of “federal paramountcy;” that is,
where there are inconsistent federal and provincial laws, the federal law prevails.
    1. both of the laws must be valid, and
    2. They must both be inconsistent.

Definition of inconsistency
When are two laws deemed to be inconsistent so as to attract the doctrine of paramountcy? A wide
definition on inconsistency will result in the defeat of provincial laws in “fields” which are “covered” by
federal law; a narrow definition will allow provincial laws to survive so long as they do not “expressly
contradict” federal law.

Express contradiction
Impossibility of dual compliance: This is when one law expressly contradicts the other. For laws which
directly regulate conduct, an express contradiction occurs when it is impossible for a person to obey both
laws. Compliance with one law involves breach of the other (Smith v The Queen per Martland J). In
Multiple Access v McCutcheon (1982) the question was whether insider-trading provisions of provincial
securities law were in conflict with insider-trading provisions of federal corporate law. Since the federal
and provincial laws provided essentially the same remedy for essentially the same conduct, namely,
profiting from inside knowledge in trading of stocks and bonds, there was no express contradiction. In
fact, the two laws were in harmony. Federal paramountcy did NOT apply. See M & D Farm v Manitoba
Agriculture Credit Corporation [1999] where there was a court order permitting foreclosure
proceedings made under provincial law, and a court order staying proceedings made under federal law.
The doctrine of paramountcy required that the federal law prevail. There was an express contradiction
between two court orders.

Frustration of federal purpose: Where there are overlapping federal and provincial laws and it is possible
to comply with both laws, but the effect of the provincial law would be to frustrate the purpose of the
federal law, that is also a case of inconsistency.
     The courts have to interpret the federal law to determine what the federal purpose is, and then
         they have to decide whether the provincial law would have the effect of frustrating the federal
         purpose.
See Law Society of BC v Mangat [2001] where the federal Immigration Act provided that, in
proceedings before the Immigration and Refugee Board, a party could be represented by a non-lawyer.
BC‟s Legal Profession Act prohibited non-lawyers from practicing law. The purpose of the federal law
was to establish an informal, accessible and speedy process. Therefore, compliance with the provincial
                                                     20


law “would go contrary to Parliament‟s purpose in enacting [the representation provisions] of the
immigration Act (both laws COULD have been complied with).

Negative implication
Covering the field: Cases where one law expressly contradicts another obviously call for the application
of the paramountcy doctrine. We have seen that the courts have expanded the concept of express
contradiction to include the case where a provincial law would frustrate the purpose of a federal law. Will
lesser kinds of incompatibility suffice?
      Where the federal Parliament has enacted a law on a particular topic, does this preclude a
         province from enacting a different law on the same topic?
Only express contradiction suffices to invoke the paramountcy doctrine. A provincial law that is
supplementary or duplicative of a federal law is NOT deemed to be inconsistent with the federal
law. Canadian courts have rejected a “covering the field” test of inconsistency; that is, a test that states
that a federal law may be interpreted as covering the field and precluding any provincial laws in that field,
even if they are not contradictory of the federal law. See O’Grady v Sparling where a provincial law
(careless driving) supplemented a criminal law (reckless driving). The majority rejected the covering the
field test and said that “both provisions can live together and operate concurrently,” since both laws could
be applied (by adhering to the stricter provincial law). However, as noted earlier, the court will infer an
inconsistency where it concludes that a federal law has a purpose that would be frustrated by a provincial
law. The court has to make a judgement as to whether the two laws can live together, bearing in mind not
just the compatibility of the provincial law with the literal requirements of the federal law, but also the
compatibility of the provincial law with the purpose of the federal law.

Express extension of paramountcy: Is it open to the federal Parliament to extend the doctrine of
paramountcy beyond the case of an actual conflict? (s. 88 federal Indian Act attempts to extend the
doctrine of paramountcy by rendering inoperative provincial laws upon the same matters as the Indian
Act, even if the provincial laws do not contradict the Indian Act). This seems to be so (see AG BC v
Smith).

Overlap and duplication
Constitutional significance: The two paramountcy cases decided in the 1960s (O’Grady, Smith,
Stephens and Mann) all concerned penal enactments which overlapped. They were all deemed to be
“different” in that there seemed to be some imaginable set of facts to which one law would apply and not
the other. The implication of this kind of reasoning is that a provincial law which duplicated the
provisions of a federal law would be held to be inoperative. Hogg argues that there is no reason why
duplication should be a case of inconsistency once the negative implication or covering the field test is
rejected. Arguments against duplication of federal and provincial laws can have little weight once
overlapping is admitted. See Multiple Access v McCutcheon (1982) where the SCC held that the
provisions of Ontario securities law relating to insider trading were NOT rendered inoperative by the
substantially identical provisions of federal corporate law.
     This is an unequivocal ruling that duplication is NOT a test of paramountcy, and it probably
        settles the question, although there are two earlier cases to the contrary.

Double criminal liability: The existence of overlapping or duplicative penal provisions raises the
possibility that a person may be liable to conviction under both a federal law and a provincial law for the
same conduct. There is nothing in paramountcy doctrine which precludes multiples prosecutions or
convictions under federal and provincial laws. However, double jeopardy issues should be dealt with as if
Canada was a unitary state (see s. 11(h) Charter).
                                                      21


Effect of inconsistency
Once it has been determined that a federal law is inconsistent with a provincial law, the doctrine of
federal paramountcy stipulates that the provincial law must yield to the federal law. It is rendered
inoperative to the extent of the inconsistency.
     The doctrine will NOT affect the operation of those parts of the provincial law which are not
        inconsistent with the federal law, unless the inconsistent parts are inseparably linked up with the
        consistent parts (note “severance,” above).
     If the federal law is repealed, the provincial law will automatically “revive” without any re-
        enactment by the provincial legislation (so, it‟s not accurate to say federal paramountcy “repeals”
        a provincial law).
     Note that the provincial law is NOT unconstitutional, ultra vires, or invalid. That would
        confuse validity with consistency. It renders the provincial law inconsistent or inoperative, and
        will revive when the federal law is repealed (federal Parliament cannot unilaterally take away
        from a provincial legislative any power that the Con confers).
     Also don’t confuse this with IJI – in a case like Quebec Minimum Wage case (1966), the law is
        said to be inapplicable, NOT inoperative, which makes clear that the provincial law is yielding
        not merely to an inconsistent federal law, but to an implied prohibition in the Con which makes
        the application of the law ultra vires.

Rothmans, Benson & Hedges Inc. V Saskatchewan, [2005] 1 SCR - The respondent company sought a
declaration that s. 6 of the Saskatchewan Tobacco Control Act is, by virtue of the paramountcy doctrine,
inoperative in light of s. 30 of the federal Tobacco Act.
      Section 30 allows retailers to display tobacco and tobacco product related brand elements and
         post signs indicating the availability and price of tobacco products, while s. 6 bans all advertising,
         display and promotion of tobacco or tobacco-related products in any premises in which persons
         under 18 years of age are permitted.
HELD: The provincial legislation is not inoperative by virtue of the paramountcy doctrine. There is
no inconsistency between s. 6 of The Tobacco Control Act and s. 30 of the Tobacco Act.
      First, a retailer can easily comply with both provisions in one of two ways: by admitting no one
         under 18 years of age on to the premises, or by not displaying tobacco or tobacco-related
         products. The provincial legislation simply prohibits what Parliament has opted not to prohibit in
         its own legislation and regulations.
      Second, s. 6 does not frustrate the legislative purpose underlying s. 30. Both the general purpose
         of the Tobacco Act (to address a national public health problem) and the specific purpose of s. 30
         (to circumscribe the Tobacco Act‟s general prohibition on promotion of tobacco products set out
         in s. 19) remain fulfilled.
It follows that in determining whether s. 6 of The Tobacco Control Act is sufficiently inconsistent with s.
30 of the Tobacco Act so as to be rendered inoperative through the paramountcy doctrine, two questions
arise:
     1. Can a person simultaneously comply with s. 6 of The Tobacco Control Act and s. 30 of the
         Tobacco Act?
     2. Does s. 6 of The Tobacco Control Act frustrate Parliament‟s purpose in enacting s. 30 of the
         Tobacco Act?

    Property and civil rights (Hogg, Chapter 21 “property and civil rights”)
              (92) In each Province the Legislature may exclusively make Laws in relation to
                Matters coming within the Classes of Subjects next hereinafter enumerated; that is to
                say;
                (13) Property and Civil Rights in the Province.
                                                      22


Importance of property and civil rights
Section 92(13) of the Con 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 head of power. Most
of the major constitutional cases have turned on the competition between one or more of the federal heads
of power, on the one hand, and property and civil rights, on the other.
                The law relating to property, succession, the family, contracts and torts is mainly
                   within provincial jurisdiction under s. 92(13).

Civil liberties
Civil rights in s. 92(13) does NOT include the fundamental civil liberties of belief and expression. A law
whose pith and substance is the restraint of belief or expression does NOT come within property and civil
rights in a province.

Local or private matters
“all matters of a merely local or private nature in the province” (92(16)) is unimportant because the wide
scope of “property and civil rights in the province” has left little in the way of a residue of local or private
matters. Jurisdiction over highway traffic, for example, is undoubtedly provincial, but the SCC has not
committed itself to a specific head of power (is it 92(16) or 92(13)? – see PEI v Egan).

Insurance
Provincial power: In the leading case Citizens’ Insurance Co v Parsons (1881), the PC upheld an
Ontario statute which required that certain conditions be included in every policy of fire insurance entered
into in Ontario. Regulation of the terms of contracts came within property and civil rights in the province,
and NOT within trade and commerce (91(2)). In Insurance Reference (1916) the PC held a federal
Insurance Act was unconstitutional. Regulation of a particular industry came within property and civil
rights in the province, even when the industry and particular firms extended beyond the boundaries of any
one province.
     The federal parliament tried to compel licensing of insurance companies by a provision in the CC
         making it an office to not have a license from the Min of Finance. This was held by the PC to be a
         colourable attempt to use the cloak of the criminal law “to interfere with the exercise of civil
         rights in the provinces”

Federal power: Federal government still, despite the setback explained above, regulates a substantial part
of the insurance industry. The current federal statutes include preambles which indicate that the powers
over trade and commerce, aliens and insolvency are relied upon as supporting their constitutionality. In
Wentworth Insurance Case (1969) a federal law applicable to insolvent insurance companies was
upheld (SCC 5 to 4 split). Hall J, for the minority, said that the federal law was “a foray into the field of
insurance, an area forbidden to Parliament,” and that it was “colourable legislation and, because of this,
ultra vires.”
      Now entry had been gained through the „insolvency” door.

Business in general
Insurance cases seem to establish the proposition that the regulation of business was ordinarily a matter
within property and civil rights in the province. There are exceptions:
    1. navigation and shipping is federal (91(10),
    2. banking (91(15)),
    3. trade and commerce (91(2), etc
But the gaps in federal power are very important and extensive. The trade and commerce power will
authorize a federal prohibition of the importation of margarine, but not a prohibition of its manufacture or
sale (Can Federation of Agriculture c AG Quebec).
                                                    23


     The trade and commerce power will also authorize the regulation of interprovincial marketing,
      but not local marketing. Regulation of an industry or the more general regulation of prices or
      profits has traditionally been regarded by the courts in terms of its immediate impact upon
      freedom of contract and property rights.

Professions and trades
Regulation of professions and trades typically takes the form of restrictions on entry, coupled with rules
of conduct. These come within property and civil rights in the province, since, for constitutional purposes,
it is no different than other industries. In Krieger v Law Society of Alberta (2002), the question was
whether the law society of Alberta had the power to discipline a provincial Crown (timely disclosure was
a matter of criminal procedure, federal responsibility). Like other lawyers in the province, however, they
came within the jurisdiction of the law society to enforce professional standards of behaviour.

Labour relations
Provincial power: 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). The federal government tried to regulate labour relations with the
Industrial Disputes Investigation Act 1907. The Act afforded compulsory conciliation procedures for the
settlement of industrial disputes in mining, transportation, communication and public service utilities, and
optional procedures for the settlement of disputes not compulsorily covered (PC held this was
unconstitutional). In the Labour Conventions case (1937) the decision was extended to labour standards
legislation. Federal statutes providing for a weekly rest in employment, limitations on working hours and
minimum wages were all held to be unconstitutional. Their lordships rejected arguments based on the
peace, order, and good government power and the treaty power (all this was still within property and civil
rights).

Federal power: There is still a presence in labour relations within the federal Parliament. The Act (after
Toronto Electric) was amended to include employment upon or in connection with any work, undertaking
or business that is within the legislative authority of the Parliament of Canada. The Act listed a number of
industries which were within federal authority, such as navigation and shipping and interprovincial
transportation and communication.
     Since the Stevedores Reference (1955), it has been clear that the federal Parliament has the
         power to regulate employment in works, undertakings or businesses within the legislative
         authority of the federal Parliament (navigation and shipping is a federal head of power under
         91(10)).
See Commission du Salaire Minimum v Bell Telephone Co (1966) which decided whether Quebec‟s
minimum wage law applied to Bell, which was within federal jurisdiction as an interprovincial
communications undertaking. SCC held the provincial law was inapplicable to Bell since the rates of pay
and hours of work were “vital parts” of the interprovincial undertaking, and that all such vital parts were
subject to the exclusive legislative control of the federal Parliament. Although the provincial law was
valid in its application to most employment in the province, it could not constitutionally apply to
employment in a federally-regulated industry. Labour relations in federally-regulated industries is the
EXCLUSIVE preserve of federal law (Bell Canada case – above – provincial occupational health and
safety law was inapplicable to interprovincial telephone company).

Marketing
Federal power: Federal regulation of the trade in grain and in oil (regulation even extended to local
transactions in these areas Murphy v CPR 1958) has been upheld, even though the regulation extended
to purely local transactions. The reasoning was that the marketing of products which flow across
interprovincial boundaries from the province of production or importation to the province of consumption
                                                      24


or export could be regulated by the fed Parliament, and that some local transactions could also be
regulated where that was an incident of the regulation of the interprovincial trade.

Provincial power: Contracts of sale and purchase are prima facie matters within “property and civil rights
in the province.”
      Under 92(13) the provinces no doubt have the power to regulate intra-provincial trade, although
         they lack the power to regulate inter-provincial trade.
A provincial marketing scheme will nearly always have an impact on producers or consumers in other
provinces. The question is to what extent a province should be permitted to burden interprovincial trade in
the course of regulating intra-provincial trade. In Shannon v Lower Mainland Dairy Products Board
(1938) PC held that milk adds in the province that affected other provinces was upheld as an incident of
an essentially intra-provincial scheme. Same logic was applied in Carnation CO v Quebec Agriculture
Marketing Board (1968). The cases suggest a very extensive power to regulate marketing within the
province, notwithstanding the burdens incidentally placed on the residents of other provinces.

Securities regulation
Provincial power: In line with the insurance cases and the marketing cases...
     the provinces have the power to regulate the trade in corporate securities. Again, this is within
         property and civil rights in a province.
However, it has been held that the province has no power to confer upon a provincial agency
discretionary power over the issue of securities by a federally-incorporated company, because the
capacity to raise capital is essential attribute of corporate status (AG Man v AG Can [1929]). The
question in each case is whether the degree of provincial control amounts to a denial of an essential
attribute or corporate status. So, except for the limited immunity of federally-incorporated companies,
the provincial power has been given a broad scope by the courts.

Federal power: The federal incorporation power authorizes the regulation of the issue of securities by
federally-incorporated companies (AG Man v AG Can). The criminal law power authorizes the
punishment of fraudulent or deceptive practices in the securities industry, but it would probably not
authorize a sophisticated regulatory regime involving licensing of brokers and discretionary powers in an
admin agency. The trade and commerce power would certainly authorize the regulation of interprovincial
dealings in securities, despite the recent holdings of concurrent provincial power. The hard question is
whether the trade and commerce power could cover even transactions which, regarded individually, begin
and end in one province, on the basis that securities industry serves a capitol market which is
interprovincial and indeed international.

Property
General: The creation of property rights, their transfer and their general characteristics are within property
and civil rights in the province (including trusts, wills, real and personal, landlord tenant, etc.). Difficulty
arises when, for example, in Switzman v Elbling (1957), a provincial law prohibited the use of a house to
propagate communism. This was either a criminal law or a law in relation to speech, NOT a property law.

Heritage property: In Kitkatla Band v BC (2002) the SCC held that the protection of heritage or cultural
property was within provincial jurisdiction under property and civil rights in the province (92(13)). The
court upheld BC‟s Heritage Conservation Act, the purpose of which was to protect objects, artifacts and
sites within the province which had heritage value.

Chatterjee v Ontario (AG), 2009 SCC - The police arrested C for breach of probation and, in a search of
his car incidental to the arrest, discovered cash and items that not only were associated with the illicit
drug trade but also smelled of marijuana but found no drugs (no charges were laid in relation to the drug-
                                                      25


related materials). The Attorney General of Ontario was granted an order under the Civil Remedies Act,
2001 (“CRA”) preserving the seized money and equipment.
      He then applied under ss. 3 and 8 of the CRA for forfeiture of the seized money as proceeds of
         unlawful activity. In response, C challenged the CRA‟s constitutionality, arguing that the CRA‟s
         forfeiture provisions were ultra vires the province because they encroach on the federal criminal
         law power. HELD: the provisions were constitutional.
A court should favour, where possible, the ordinary operation of statutes enacted by both levels of
government. The practical (and intended) effect of the Act is to take the profit out of crime and to deter
its present and would-be perpetrators. These are valid provincial objects.
      It would be out of step with modern realities to conclude that a province must shoulder the costs
         to the community of criminal behaviour but cannot take legislative steps to suppress it.
Where there is a degree of overlap between measures enacted pursuant to the provincial power and
measures taken pursuant to the federal power, it is necessary to identify the “dominant feature” of an
impugned measure. If the dominant feature of the provincial enactment is in relation to provincial
objects, as it is here, the law will be valid, and if the enactments of both levels of government can
generally function without operational conflict they will be permitted to do so. In factual situations where
operational conflict does occur, the conflict will be resolved by the doctrine of federal paramountcy. The
CRA is an enactment “in relation to” property and civil rights, and as such its provisions may
incidentally “affect” criminal law and procedure without doing violence to the division of powers.

    Trade and Commerce (Hogg, Chapter 20 “trade and commerce”)
             See Con Act 1867 (s. 91(2), 92(13), and 92A)

This power by the federal Parliament is found in s. 91(2) of the Con Act 1867 (regulation of trade and
commerce). This power seems to conflict with the provincial power over property and civil rights
(92(13)). However, the courts have narrowed the two classes of subjects so as to eliminate the
overlapping and make each power exclusive.
     The leading case is Citizens’ Insurance Co (The Privy Council identified two branches of the
        clause. A matter could fall under the inter-provincial branch if it concerned "international and
        interprovincial trade", or in the alternative, it could fall under the general trade branch if it
        concerned the "general regulation of trade affecting the Dominion as a whole"); the statute was
        valid law in relation to property and civil rights in the province. It did not come within trade and
        commerce because that power should be read as NOT including “the power to regulate by
        legislation the contracts of a particular business or trade, such as the business of fire insurance in
        a single province.” Since this case, it is accepted that, in general, intra-provincial trade and
        commerce is a matter within provincial power (under s. 91(13)), and the federal trade and
        commerce power is confined to
    1. inter-provincial or international trade and commerce, and
    2. “General” trade and commerce.

Inter-provincial or international trade and commerce
In the SCC: In 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 (this was inter-provincial: a shipment of grain from one province to another).

But note R v Klassen (1959), where the Act applied even to purely local work (a feed mill which
processed locally-produced wheat and sold it as fed to local farmers). The Manitoba CA held that the
application of the Act to such intra-provincial transactions was valid. It was incidental to the principal
purpose of the Act, which was to regulate the inter-provincial and export trade in grain (big departure
from PC decisions).
                                                     26



The SCC‟s decision to uphold the federal Act in Re Agricultureal Products Marketing Act (involved
the marketing of eggs which intervened in local markets) seems to be a major expansion of federal power
into local markets. But it might be confined to its facts. The Court was impressed by the fact that the
federal Act was the centerpiece of a cooperative scheme designed to rationalize the national market in
eggs. It had been agreed to by ALL 11 governments!

General trade and commerce: Until General Motors v City National Leasing (1989), the general
category of trade and commerce had been rather consistently rejected as a support for federal policies of
economic regulation.
       Until 1989, the only example of a valid exercise of the general trade commerce power was
          Canada Standard Trade Mark (1937). PC upheld a federal statute which established a national
          mark called “Canada Standard.” The use was voluntary, but if the mark was used, federal
          standards as to the quality of the product so marked had to be complied with.
The case seemed to suggest that the general trade and commerce power would authorize federal standards
of production or manufacture for products traded locally, provided that the federal standards were tied to
the voluntary use of a distinctive mark (so, not confined to inter-provincial or international trade). But
Dominion Stores cast doubt on this case. The 4 dissenting judges regarded the Canada Standard case as
indistinguishable. However, Estey J for the majority distinguished the case on the basis that in the
Canada Standard case, the mark was formally bested in the Crown (does this confine the case to its
facts?).
       In General Motors the SCC (unanimously) held that the Combines Investigation Act (now
          the Competition Act) was a valid exercise of the “general” trade and commerce power.
          Dickson C.J. applied the Vapor test which consisted of three elements:
      1. the presence of a “general regulatory scheme;”
      2. the “oversight of a regulatory agency;” and
      3. A concern “with trade as a whole rather than with a particular industry.” A 4th and 5th were added
          in GM:
      4. the legislation should be of a nature that the provinces jointly or severally would be
          constitutionally incapable of enacting; and
      5. the failure to include one or more provinces or localities in a legislative scheme would jeopardize
          the successful operation of the scheme in order parts of the country.”
It is important to notice that the general branch of the trade and commerce power authorizes the
regulation of intra-provincial trade. There would be no need for a general branch of trade and commerce
if it did not extend beyond inter-provincial and inter-national trade. The conclusion was that Parliament
(as well as the provinces) has the constitutional power to regulate intra-provincial aspects of
competition.

Trademarks
Trademarks are federally controlled (although not accounted for in the Con Act 1867). Trademarks attach
to goods and service; goods and services move across provincial boarders (as do consumers) who take
their opinions about products and manufactures with them. The uniform, national protection of
trademarks is closely connected with the mobility of goods and services and individuals, and is part of the
regulation of competition.

General Motors of Canada Ltd. v City national Leasing, [1989] 1 SCR - The constitutional questions
stated by this Court queried:
     1. Whether the Combines Investigation Act, either in whole or in part, was intra vires Parliament under
         s. 91(2) of the Constitution Act, 1867, and
     2. Whether s. 31.1 was within the legislative competence of Parliament.
                                                      27


HELD: both questions should be answered in the affirmative. The Combines Investigation Act is valid
under the federal trade and commerce power, in particular its "second branch" over "general" trade
and commerce, and s. 31.1 is constitutionally valid by virtue of its being functionally related to the Act.

Section 31.1 creates a civil right of action and, since the creation of civil actions generally lies within
provincial jurisdiction under s. 92(13) of the Constitution Act, 1867, appears to encroach to some extent on an
important provincial power.
     The encroachment, however, is not serious.
     Section 31.1 is only a remedial provision and such provisions are typically less intrusive vis-à-vis
         provincial powers.
     Section 31.1 does not create a general cause of action but rather one limited by the Act.
     Finally, the federal government is not constitutionally precluded from creating rights of civil action
         where such measures may be shown to be warranted. The inclusion of a private right of action in
         a federal enactment is not constitutionally fatal.
The Court has advanced several hallmarks of validity for legislation under the second branch of the trade and
commerce power: (1) the impugned legislation must be part of a general regulatory scheme; (2) the scheme
must be monitored by the continuing oversight of a regulatory agency; (3) the legislation must be concerned
with trade as a whole rather than with a particular industry; (4) the legislation should be of a nature that the
provinces jointly or severally would be constitutionally incapable of enacting; and (5) the failure to include
one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the
scheme in other parts of the country.


    Peace, Order and Good Government (Hogg, Chapter 17)
              Con Act 1867 (s. 91 opening words)

The opening words of s. 91 Con Act 1867 confers on the fed 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 by this Act assigned exclusively to the
           Legislatures of the provinces” (POGG power).
It is clear that any matter which does not come within a provincial head of power must be within the power of
the federal Parliament. The assumption is that matters which come within enumerated federal or provincial
heads of power should be located in those enumerated heads, and the office of the POGG power is to
accommodate the matters which do not come within any of the enumerated federal or provincial heads. The
POGG power has been the trunk from which three branches of legislative power have grown:
      1. The “gap” branch;
      2. The “national concern” branch; and
      3. The “emergency” branch.

The “Gap” branch
One of the offices of the POGG power is to fill gaps in the scheme of distribution of powers (very few gaps
have to be filled in this way). For example, s. 92(11) empowers provincial legislatures to make laws in
relation to the “incorporation of companies with provincial objectives,” but there is no equivalent enumerated
federal power of incorporation.
      The courts have held that the power to incorporate companies with objects other than provincial
          must fall within the federal POGG power because of its residuary nature (Citizens’ Insurance Co v
          Parsons (1881)).
      POGG also filled the gap in Radio Reference (1932). The framers of the Con did not contemplate
          that Canada would eventually acquire the power to enter into treaties on its own behalf. The power
          to perform Canadian (as opposed to imperial) treaties came with POGG because it was “not
          mentioned explicitly in either s. 91 or s. 92.”
                                                      28


The cases dealing with legislative jurisdiction over offshore mineral resources have employed a similar
analysis. Because the seabed off the shore of BC and the seabed off the shore of Newfoundland lay outside
the boundaries of each province, the offshore minerals were outside each province‟s legislative jurisdiction.
     The offshore minerals therefore had to come within the federal Parliament‟s POGG power “in its
         residual capacity” (Re Offshore Mineral Rights of BC [1967]).

The “national concern” branch
The Canada Temperance case repudiated the line of cases that asserted that only an emergency could serve
as the basis for an exercise of the POGG power. Viscount Simon formulated a new test:
      If legislation goes beyond local or provincial concern or interests and must from its inherent
         nature be the concern of the Dominion as a whole (like the Aeronautics and Radio cases), then it
         will fall within the competence of the Dominion Parliament as a matter affecting the peace,
         order, and good government of Canada.
Canada Temperance merely established that there was a national concern branch of POGG as well as an
emergency branch. In the SCC, aeronautics satisfied the national concern test (Johannesson). SCC held in
Munro (1966) that the national capital region (area around Ottawa straddling Ontario and Quebec) satisfied
the national concern test (designated by federal legislation). Marine pollution also satisfied the national
concern test (R v Crown Zellerbach [1988]) – federal Ocean Dumping Control Act. The Act applied to
marine waters within the boundaries of BC.

     In Jonannesson, the failure of one province to accept uniform procedures for the use of air space
        and ground facilities would endanger the residents of other provinces engaged in inter-provincial
        and international air travel.
     In Munro, the failure of either Quebec or Ontario to cooperate in the development of the national
        capital region would have denied to all Canadians the symbolic value of a suitable national
        capital.
Therefore, it seems that the most important element of national concern is a need for one national law
which cannot realistically be satisfied by cooperative provincial action because the failure of one province
to cooperative would carry with it adverse consequence for the residents of other provinces.

Distinctness: (see Crown Zellerbach below)

The “Emergency” Branch
The non-emergency cases: The emergency test first emerged in the Board of Commerce case (1922). In
this case, the PC struck down legislation which, prohibited the hoarding of “necessaries of life” (defined
as food, clothing and fuel) and required stocks of such necessaries to be sold at a fair price. Their
lordships rejected the POGG power as authority for the statute on the ground that...
      “Highly exception” or “abnormal” circumstance would be required to justify the invocation of
         POGG (war or famine were used as examples).
Federal legislature was again struck down by the PC in Toronto Electric Commissioners v Snider
(1925) (legislation for settlement of industrial disputes). The relations between employers and employees
was a matter of civil rights in the province, and therefore within provincial jurisdiction.
      The POGG power was available only in “cases arising out of some extraordinary peril to the
         national life of Canada, such as the cases arising out of a war.”

War: The War Measures Act was proclaimed into force for both World Wars, and during both wards the
federal government embarked on extensive economic and other controls in regulations made under the
Act. In the Fort Frances (1923) case, the PC held that the regime of price control which has been
established during WWI, and which was continued temporarily after the war, was constitutional.
     In “a sufficiently great emergency such as that arising out of war,” the POGG power would
         authorize laws which in normal times would be competent only to the provinces.
                                                       29


In Canada, the defence power of s. 91(7) should be regarded as the authority for legislation relating to the
armed forces and other traditional military matters. The emergency branch of POGG should be
confined to the temporary and extraordinary role required for national regulation in time of actual
war (or other emergency).

Apprehended insurrection: The War Measures Act was proclaimed (for the 3rd time) in October 1970
when the FLQ kidnapped a British diplomat and a Quebec cabinet minister. The federal government of
PM Trudeau responded by issuing a proclamation declaring that “apprehended insurrection exists,” and
thereby bringing the War Measures Act into force. It was a major suspension of civil liberties (497 people
arrested, 62 charged, and less than 1/3rd were convicted. Those arrested were compensated by the Quebec
government.

Inflation: The most recent application of the emergency doctrine is to be found in the Anti-Inflation
Reference (1976).
      The federal Anti-Inflation Act was upheld as an emergency measure. It controlled increases in
         wages, fees, prices, profits, and dividends. The federal government referred the Act to the SCC,
         who held that it was constitutional and a valid exercise of the federal Parliament‟s emergency
         power.
There had been a period of about 20 months of double-digit inflation in Canada, and the inflation had
been accompanied by relatively high rates of unemployment. Note that the Act did not refer to an
emergency. This case shows that there is no judicial duty to make a definitive finding that an
emergency exists.
      All that the Court need do is to find that a “rational basis” exists for a finding of emergency.
Also, it is not for the proponents of the legislation to establish a rational basis, it is for the opponents of
the legislation to establish the absence of a rational basis. Note that judicial restraint requires that a degree
of deference be paid to the governmental judgement upon which the legislative policy was based. This
case makes it almost impossible to challenge federal legislation on the ground that there is no
emergency. This means that the federal Parliament can use its emergency power almost at will.

Temporary character of law: There is one limitation on the federal emergency power: it will support only
temporary measures (Re Anti-Inflation Act). No permanent measure has ever been upheld under the
emergency power.

Relationship between national concern and emergency
In Anti-Inflation, Beetz J (who dissented but who the majority agreed with on this point) stated that the
POGG power performs two separate functions in the Con:
    1. it gives to the federal Parliament permanent jurisdiction over “distinct subject matters which do
        not fall within any of the enumerated heads of s. 92 and which, by nature, are of national
        concern” (for i.e. aeronautics and the national capital region).
    2. the POGG power gives to the federal Parliament temporary jurisdiction over all subject matters
        needed to deal with an emergency.
On this duel function theory, it is not helpful to regard an emergency as being simply an example of a
matter of national concern. The leading “national concern” cases involved legislation over a more distinct
and specific subject matter, for example, aeronautics in Johannesson, the nation capital in Munro, etc.

Reference re Anti-Inflation Act, [1976] 2 SCR - The Anti-Inflation Act, 1974 was passed on December
15, 1975, to provide for the restraint of profit margins, prices, dividends and compensation in Canada and
thereby to accomplish the containment and reduction of the current levels of inflation which the
Parliament of Canada recognized as contrary to the interests of all Canadians. HELD: the act is NOT ultra
vires.
                                                         30


     The Anti-Inflation Act is valid legislation for the peace, order and good government of Canada
         and does not, in the circumstances under which it was enacted and having regard to its temporary
         character, invade provincial legislative jurisdiction.
The preamble to the Act was sufficiently indicative that Parliament was introducing a far-reaching
programme prompted by what was in its view a serious national condition and the absence of the very
word "emergency" was not unduly significant. The particular economic circumstances justified it
in invoking that general power to extend its embrace into sectors otherwise within provincial
legislative power.

R v Crown Zellerbach Canada Ltd. [1988] 1 SCR - During the conduct of its logging operations,
respondent dumped woodwaste in the waters of Beaver Cove, an area within the province of British
Columbia, and was charged with contravening s. 4(1) of the Ocean Dumping Control Act. Both the trial
judge and the Court of Appeal held that s. 4(1) of the Act was ultra vires Parliament.
      This appeal is to determine whether s. 4(1) of the Act is constitutional in its application to the
          dumping of waste in waters, other than fresh waters, within a province. HELD: the appeal should be
          allowed.
      The Ocean Dumping Control Act is concerned with the dumping of substances which may be shown
          or presumed to have an adverse effect on the marine environment and may be characterized as
          directed to the control or regulation of marine pollution.
A basis for federal legislative jurisdiction to control marine pollution generally in provincial waters cannot be
found in any of the specified heads of federal jurisdiction in s. 91 of the Constitution Act, 1867, whether taken
individually or collectively. Section 4(1) of the Ocean Dumping Control Act, however, is constitutionally
valid as enacted in relation to a matter falling within the national concern doctrine of the peace, order
and good government power of the Parliament of Canada. The national concern doctrine, which is
separate and distinct from the national emergency doctrine, applies to...
      both new matters which did not exist at Confederation and
      to matters which, although originally matters of a local or private nature in a province, have since, in
          the absence of national emergency, become matters of national concern.
For a matter to qualify as a matter of national concern in either sense it must have a singleness,
distinctiveness and 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. In determining whether a matter has the requisite singleness, distinctiveness and
indivisibility, it is relevant to consider...
      What would be the effect on extra-provincial interests of a provincial failure to deal effectively with
          the control or regulation of the intra-provincial aspects of the matter.
The control of marine pollution meets the test. Marine pollution, because of its predominantly
extra-provincial as well as international character and implications, is clearly a matter of concern to Canada
as a whole. The pollution of marine waters, including provincial marine waters, by the dumping of substances
is sufficiently distinguishable from the pollution of fresh waters by such dumping to meet the requirement of
singleness or indivisibility. It is distinguished from fresh water pollution.
         The "provincial inability" test is one of the indicia for determining whether a matter has that
            character of singleness or indivisibility required to bring it within the national concern doctrine. It is
            because of the interrelatedness of the intra-provincial and extra-provincial aspects of the matter that
            it requires a single or uniform legislative treatment.

    Criminal law (Hogg, Chapter 18)
               Con Act 1867 (s. 91(27))
               Con Act 1867 (s. 92(14))
               Con Act 1867 (s. 92(15))
                                                     31


Under 91(27), the criminal law is a federal responsibility (not the case in the US and Aus). Since 1982,
the criminal has been codified in one federally-enacted CC. Criminal law, however, is not as central as
other fields since:
     1. The CC is enforced by the provinces, and
     2. the decisions to investigate, charge and prosecute offences are matters of provincial policy (which
         are probably framed in response to local conditions and sentiments).
The provincial power comes from 92(14). This provision authorizes provincial policing and prosecution
of offences under the CC (and to make their own civil pro rules). It gives the provinces power in relation
to “the admin of justice in the province...” The establishment of courts of criminal jurisdiction is included
in the provincial power (expressly excluded from 91(27)). Therefore:
     (a) Criminal trials take place in provincial courts. However,
     (b) Rules of procedure and evidence in a criminal trial are federal (91(27)).
Correctional institutions is divided (federal if two years or more, provincial if less).
      Section 92(15) is another head of power to impose punishment by fine, penalty, or
         imprisonment...This provision authorizes the provincial legislatures to enact penal sanctions for
         the enforcement of provincial laws. This has given rise to difficult issues of paramountcy where
         federal and provincial laws co-exist.

Definition of criminal law
A criminal law has:
     1. A prohibition
     2. Followed by a penalty
     3. With a criminal purpose (Since Margarine)
It held that the elusive third ingredient of a criminal law is a typically criminal public purpose (public
peace, order, security, health and morality). Rand J in the SCC did not give an exhaustive list. In this
case, protection of the dairy industry was not a qualifying purpose. But the case shouldn‟t be read as
denying that criminal law can serve economic ends (Hogg doesn‟t think Rand J‟s definition is good
enough). In Boggs v The Queen (1981), the SCC struck down the federal CC offence of driving a MV
while one‟s provincial driver‟s licence was suspended (unconstitutional). If the offence was confined to
cases where the provincial disqualification resulted from a violation of a CC offence, then it would be
fine. But a driver‟s licence could also be suspended for failure to pay insurance premiums, taxes, etc.
      If a driver‟s licence could only be suspended for a breach of a CC provisions, the offence of
         driving while disqualified could be related to the public purpose of safety on the roads (Rand J‟s
         formula).
The protection of the environment is a public purpose that will also sustain laws enacted under the
criminal law power (Hydro-Quebec). So is the protection of animals from cruelty (Ward v Canada).
But note in Ward v Canada that the SCC held that a federal regulation that prohibited the sale of baby
seals could NOT be upheld under the criminal law power (court felt it was driven not by the concern over
inhumane methods of killing, but by the concern about the depletion of commercial harvesting). It did,
however, come within the federal power over fisheries (s. 91(12)) and was upheld on that ground.

Food and Drugs
Food and drug standards: Food and drug legislation making illegal the manufacture or sale of dangerous
products is within the criminal law power (R v Wetmore). But in the Margarine Reference it was
conceded by the federal government that margarine was not injurious to health. This concession, which
had to be made in light of the medical facts, destroyed what was originally a secure criminal law
foundation for the legislation. Also see Labatt Breweries v AG Canada (1979) where the SCC held that
part of the federal Food and Drugs Act that authorized regulations prescribing compositional standards for
food was unconstitutional. Beer company argued that the compositional law was unconstitutional (aside
from the ingredients, it said light beer had to be 2.5%, and this “lite” beer was 4%). Estey J acknowledged
that the criminal law power could be used to enact laws for the protection of health, but he found that the
                                                     32


alcoholic requirement for light beer was not related to health. The decision is unfortunate in preventing a
national regime of compositional standards for food.

Illicit drugs: The non-medical use of drugs such as marihuana, cocaine and heroin is proscribed by the
federal Narcotic Control Act, which prohibits the production, importation, sale and possession of a variety
of illicit drugs. In Schneider v The Queen (1982), the SCC upheld a BC Heroin Treatment Act, which
provided for the compulsory apprehension, assessment and treatment of drug addicts (included
compulsory detention). The argument that this was really a criminal law was based on the deprivations of
liberty that were authorized by the act. Nevertheless, it was held to be within provincial competence. The
medical treatment of drug addiction came within provincial authority over public health as a “local or
private” matter within s. 92(16). The coercive elements of the Act were incidental to its public health
purpose.

Tobacco: RJR-MacDonald v Canada (1995) dealt with the federal Tobacco Products Control Acts
(prohibited advertising and required warnings on cigarettes - SCC). Was it a valid criminal law? It
contained a prohibition and a penalty, but was there a typically criminal public purpose? They were
unanimous in that the protection of public health supplied the required purpose to support the exercise of
criminal-law power. The warnings were fine (unanimous that they should be in effect to protect public
health); but what of the ban on advertising? Parliament could prohibit the manufacture, sale and
possession of dangerous products, but they didn’t do so. Majority (Major J dissenting) 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 Act was within
the criminal law power of Parliament (however, it was struck down under the Charter because of the
impact of the advertising ban on freedom of expression).

Health
Health is not assigned to one level of government or the other. Like inflation and the environment, health
is an amorphous topic which is distributed to the federal Parliament or the provincial legislatures
depending on the purpose and effect of the particular health measure in issue. Food and drugs shows there
is a criminal aspect of health, authorizing federal legislation under s. 91(27) to punish conduct that is
dangerous to health.

Environmental protection
All of the SCC in R v Hydro-Quebec held that the protection of the environment was a public purpose
that would support a federal law under the criminal-law power. The Canadian Environmental Protection
Act was upheld under the criminal-law power. The dissenting view was that it was regulatory and not
criminal.

Abortion
The CC used to prohibit abortions (except with permission from hospital re mother‟s life). Morgentaler v
The Queen (1975) challenged this in light of new safe abortion procedures, which questioned the validity
of the prohibition based on the health of the pregnant woman (thus not being a criminal law). It was
held (per Maskin CJ) that it was open to Parliament to prohibit abortions even if the mother‟s health was
not at stake. The principal objective of the prohibition was to protect the state interest in the foetus, and
that was sufficient to make the prohibition a valid exercise of the criminal law. However, it was
challenged after the Charter was passed and struck down in Morgentaler case of 1988 (contrary to s. 7).
The CC no longer prohibited abortions.

Competition law
The Canadian law which prohibited combinations designed to limit competition, was intended to be a
criminal law, and in 1892 it was transferred to the CC. More regulations were enacted in 1919 (Combines
                                                      33


Act and Fair Prices Act) which prohibited combinations which in the opinion of an admin agency were
detrimental to the public interest. These two statutes were held to be unconstitutional in the famous
Board of Commerce case (1921). Arguments based on the POGG, criminal law, and trade and commerce
powers were rejected. This is where Viscount Haldane gave his famous “domain of criminal
jurisprudence” dictum. New federal act was passed after (Combines Investigation Act 1923). It was
upheld by Atkin as a valid criminal law (PATA case (1931)).
      Atkin (disagreeing with the criminal domain theory) said that “if Parliament genuinely determines
        that commercial activities which can be so described [as contrary to the public interest] are to be
        suppressed in the public interest, their Lordships see no reason why Parliament should not make
        them crimes (criminal law could enter commerce!).

Sunday observance law
Federal power: The Lord‟s Day Act was challenged under the Charter in R v Big M Drug Mart (1985).
The SCC confirmed the Act as a valid exercise of the criminal law power because it pursued the religious
purpose of preserving the sanctity of the Christian Sabbath. The law came within the typically criminal
purposes stipulated by Rand J in the Margarine Reference, because it was intended to safeguard
morality. Note that outside a religious purpose, it would no longer be within federal competence. BUT, in
the Big M case, the Act offended the Charter guarantee of freedom of religion, because its purpose was to
compel the observance of the Christian Sabbath. It could not be justified under s. 1 and the Act was
deemed unconstitutional.

Provincial power: The provinces have the authority to regulate the conduct of most businesses or
recreation in the province, along with labour relations, as matters of property and civil rights or local
matters in the province. This includes the business hours of commercial establishments (Lieberman v
The Queen 1963). The SCC upheld a provincial law that required pool halls and bowling alleys to close
on Sunday. This was distinguished from other Sunday cases (Hamilton, Henry Birks) in that the others
were religiously motivated while this provincial law had secular interests in mind.
     Edwards Books (1986) confirmed that, provided the provinces proposed and enacted Sunday-
         closing laws in language that was secular, the provinces had recovered the power that they were
         denied in Hamilton Street Railway. The SCC in Edwards upheld Lieberman to hold that a law
         providing a “pause day” for secular purposes is properly characterized as relating to property and
         civil rights in a province.

Gun control
The CC has for many years restricted gun use with registration and prohibition of certain guns. The 1995
federal Firearms Act expanded the existing rules (amended the CC) by requiring ALL guns to be
registered and ALL gun owners to be licensed. See SCC in Re Firearms Act (2000) where Alberta
referred the Act to test its constitutionality. They held the Act was valid exercise of criminal law power.
The purpose of the Act was the restrict access to inherently dangerous things. The Act‟s
requirements were all directed to public safety. The effect on property (provincial matter) was incidental
to the main purpose of public safety.

Criminal law and civil remedy
Federal power generally to create civil remedies: The federal Parliament has no independent power
to create civil remedies akin to its power over criminal law. This means that if the pith and substance
of a federal law is the creation of a new civil cause of action, the law will be invalid as coming within the
provincial head of power “property and civil rights in a province.”
     Section 7(e) of the federal Trade Marks Act was invalid in MacDonald v Vapor Canada (1976)
        on this basis. The Act authorized a court to grant civil relief for breach of s. 7(e). It was described
        as an extension of tortious liability, which therefore came within property and civil rights in the
        province.
                                                     34


Where the pith and substance of a federal law is not the creation of a civil remedy, but is some other
matter within federal power, there is no reason to doubt the validity of a civil remedy provided for
enforcement of the law. The remedy is valid as incidental to the main purpose of the law.
     Thus, law validly enacted in relation to trade marks (trade and commerce power), or patents
        (91(22)) or copyrights (91(23)) may validly include appropriate means of enforcement.

Criminal law power to create civil remedies: Does the criminal law power, like the other heads of federal
power, authorize the federal Parliament to confer a civil right of action for breach of a statutory
prohibition?
      In R v Zelensky (1978) the SCC (6/3) upheld a provision of the CC that authorized a criminal
         court, upon convicting an accused of an indictable offence, to order the accused to pay to the
         victim compensation for any loss or damage caused by the commission of the offence (this had
         may civil characteristic – related to damages, for example).
Where a federal statute with all the traditional characteristics of a criminal law purports to confer a civil
right of action as a supplementary mode of enforcement, the question of the validity of the civil remedy
should depend upon the answer to the question that was posed in Papp (functional connection test – do
the provisions have a “rational, functional connection” between them and the admittedly valid provisions
of the Act).

Criminal law and regulatory authority
The competition and insurance cases encourage the view that the criminal law power will not sustain a
regulatory scheme which relies upon more sophisticated tools than a simple prohibition and
penalty. In the competition law cases where the law vested regulatory powers in an admin agency, the
courts held that these powers could not be sustained as criminal law.
     In NS Board of Censors v McNeil (1978), the SCC (5/4) held that the censorship of files was not
         criminal. It was instead the regulation of an industry within the province (property and civil rights
         or a local or private matter). Censorship law did not take the criminal form of a prohibition
         coupled with a penalty. There is a censorship tribunal as well. It is true that the suppression of
         ideas that are contrary to current morality is a typically criminal objective, but the prior case-law
         indicated a requirement of form as well as a typically criminal objective.
In Re Firearms Act (2000), the purpose was ultimately affected by a prohibition of unregistered guns
and unlicensed holders, and the prohibition was backed by penalties. However, it was argued that the Act
was regulatory rather than criminal legislation, because of the complexity of the regime and the
discretionary powers vested in the licensing and registration authorities. The Court relied on R v Hydro-
Quebec for the proposition that the criminal-law power authorizes complex legislation, including
discretionary admin authority. They also relied on RJR MacDonald v Canada for the proposition that a
criminal purpose may be pursued by indirect means (health risks of tobacco did not require the
outright banning of guns and the safety risks of guns did not required the outright banning of guns).

Provincial power to enact penal laws
The power under 92(15) (provincial power to impose punishment by fine penalty or imprisonment)
requires the courts to draw a distinction between:
    1. A valid criminal provincial law with an ancillary penalty and
    2. A provincial law which is invalid as being in pith and substance a criminal law.
The tendency has been to uphold provincial penal legislation. In Bedard v Dawson (1923) the SCC
upheld provincial law authorizing the closing of “disorderly houses,” which were primarily defined as
houses in respect of which there had been CC convictions for gambling or prostitution.
     It seemed to be supplementing criminal law by adding new penalties, but the court upheld the law
        as in relation to the use of property, and at most as aimed at suppressing the conditions likely to
        cause crime rather than at the punishment of crime.
                                                     35


In Egan, the SCC upheld provincial law automatically suspending the driver‟s licence of anyone
convicted of the CC offence of impaired driving.
     The court held that the provincial law was in relation to the regulation of highway traffic and
         therefore within provincial competence. The existence of similar provincial and federal laws was
         not regarded as inconsistent (which would render the provincial law inoperative under the
         doctrine of parmountcy). The laws were concurrent.
The tendency to uphold provincial penal laws was upheld in NS Board of Censors as well. However, see
Westendorp v The Queen (1983) where Laskin CJ (who disagreed is a number of earlier cases) finally
got his chance to write for the majority (unanimous) which unexpectedly struck down...
     ...a municipal by-law that prohibited a person from remaining on the street for the purpose of
         prostitution, and from approaching another person for the purpose of prostitution. They
         condemned the by-law as an attempt to control or punish prostitution (but the by-law attempted to
         only control prostitution on the streets, and was probably to protect the users of the streets from
         the activities of prostitutes and their customers).
So, provincial power to create offences under 92(15) is not as broad as the federal power under 91(27). It
shows that where a provincial offence cannot be safely anchored in property and civil rights or
some other head of provincial power, then it will be invalid.

Re Firearms Act, [2000] 1 SCR - The Firearms Act constitutes a valid exercise of Parliament‟s
jurisdiction over criminal law. The Act in “pith and substance” is directed to enhancing public safety by
controlling access to firearms. Its purpose is to
     (a) deter the misuse of firearms,
     (b) control those given access to guns, and
     (c) control specific types of weapons.
The effects of the Act also suggest that its essence is the promotion of public safety. The Firearms Act
possesses all three criteria required for a criminal law. Gun control has traditionally been considered valid
criminal law because guns are dangerous and pose a risk to public safety. The regulation of guns as
dangerous products is a valid purpose within the criminal law power. That purpose is connected to
prohibitions backed by penalties.
      The Act‟s complexity does not necessarily detract from its criminal nature. Further, the law‟s
         prohibitions and penalties are not regulatory in nature. They are not confined to ensuring
         compliance with a scheme, but independently serve the purpose of public safety.
The provinces have not established that the effects of the Act on provincial jurisdiction over
property and civil rights are more than incidental.
     1. The mere fact that guns are property does not suffice to show that a gun control law is in pith and
         substance a provincial matter.
     2. The Act does not significantly hinder the ability of the provinces to regulate the property and civil
         rights aspects of guns.
     3. Assuming (without deciding) that the provincial legislatures have the jurisdiction to enact a law in
         relation to the property aspects of firearms, the double aspect doctrine permits Parliament to
         address the safety aspects of ordinary firearms.
     4. The Firearms Act does not precipitate the federal government‟s entry into a new field since gun
         control has been the subject of federal law since Confederation.
There is no colourable intrusion into provincial jurisdiction. The problems associated with the misuse of
firearms are firmly grounded in morality. However, even if gun control did not involve morality, it
could still fall under the federal criminal law power. Parliament can use the criminal law to prohibit
activities which have little relation to public morality.
                                                     36


PART III: HUMAN RIGHTS AND FREEDOM

    Language rights (Hogg, Chapter 56)
     Con Act 1867 (s. 133) – use of English and French (in HOC, in federal court proceedings, etc.)
     Manitoba Act 1870 (s. 23) – same thing but in Manitoba Legislatures and courts
     Con Act 1982 (ss. 16-23) – language rights in the Charter.

Because French-speakers constitute a minority in the country as a whole and in every province except
Quebec, and English-speakers constitute a minority in the province of Quebec, it is important to
determine whether there is con protection for the language of the minority.

Distribution of powers over language
Why isn`t it a class of subjects in the Con Act 1867!? The most likely candidate is property and civil
rights in the province (92(13)). Or it may not come in anywhere, thereby coming under s. 91 (opening
words) POGG. Neither of these solutions is correct.
     A law prescribing that a particular language or languages must or may be used in certain
         situations will be classified for con purposes not as a law in relation to language, but as a law in
         relation to the institutions or activities that the provision covers.
In Jones v AG of NB (1974), the SCC upheld the federal Official Languages Act (made English and
French the two official languages). The law was authorized by federal power over federal government and
parliamentary institutions (POGG). Provisions relating to both languages in federal courts came from s.
101. Power over both languages in criminal courts came within criminal procedure (s. 91(27)).

Language of Constitution
The Con Act 1867 was enacted in English only. A French version has been drafted by the minister of
justice 1990), but it remains unofficial. Therefore, if there are discrepancies in England and French, the
English version prevails.
      The Canada Act 1982 and Con Act 1982, however, were enacted by the UK Parliament in both
         languages.
      The Charter, of course, is therefore in both languages. Section 57 of the Con Act 1982 says both
         versions are equally as authoritative.
      Since confederation, federal statutes have been enacted in both languages (required by s. 133 Con
         Act 1867). Statutory interpretation has developed so if one version is clear and the other is not,
         the clear version is used to clear up the discrepancy/ambiguity (The King v Dubois).

Language of statutes
Constitutional requirements: The only explicit guarantee of language rights in the Con Act 1867 is s. 133
(both languages in HOC debates and Quebec, both languages in records of HOC and Quebec, and
language rights in federal courts).
     Section 133 applies only to the legislative bodies (and courts) of the federal government and of
         Quebec. It does not apply to the legislature (and courts) of any province other than Quebec.
     Manitoba has a similar drafted provision in the Manitoba Act 1870 (s. 23).
     There is then ss. 16-23 of the Charter.
So far, then (regarding enactment of statutes), the federal Parliament, Quebec Legislature, the
Manitoba Legislature, and the NB Legislature (18(2) of the Charter) are each subject to a con
requirement that their statutes must be “printed and published” in both English and French.

In AG of Quebec v Blaikie (1979) the SCC struck down provisions of the Quebec‟s Charter of the
French Language which provided that bills were to be drafted and enacted in French only and that only
                                                    37


the French version was official (English version would be made, but it wasn‟t official). This contradicted
s. 133 Con Act 1867 (requirement that statutes be “printed and published” in both languages).
     Thus, all statutes enacted after the passage of the French Charter in 1977 were in violation of s.
        133 and invalid. Luckily, the French Charter provided for an unofficial English translation, so the
        Legislature sat overnight to fix the problem. This was an effective remedy, in contrast to a similar
        situation in Manitoba.

Note s. 23 of Manitoba Act 1870 (similar to s. 133 of the Con Act 1878) to protect the French-speaking
minority. In 1890, Manitoba passed the Official Language Act, which provided for English only to be
used in the records and journals of the Legislature, and in process in Manitoba Courts, and stated that only
English be used in passing statutes. It was an attempt to repeal s. 23 of the Manitoba Act. No one listened
to the earlier decisions that held that the Act was invalid. In 1978, the Official Language Act was
challenged for the 4th time. The case ended up going to the SCC (AG of Manitoba v Forest (1979)).
Decision was rendered on the same day as Blaikie!
      It essentially agreed with Blaikie to hold that s. 23 of the Manitoba Act could not be unilaterally
         repealed by the Manitoba Legislature. The Act was therefore unconstitutional.
The Forest decision had not expressly ruled on the con status of the Manitoba statutes that had been
enacted in English only, this came in Re Manitoba Language Rights (1985). The SCC held that nearly
all of the laws in the province were unconstitutional because they didn‟t comply with s. 23 (since the Act
in 1890). The laws in the province were held to have temporary effect until they were translated.

Delegated legislation: In Blaikie (1979), the SCC decided that s. 133‟s requirement that “Acts” be
printed and published in both languages applied to delegated legislation as well as to statutes. In Blaikie
(No. 2), the Court qualified the earlier ruling by holding that only regulations made by the “government”
(LG, Executive Council, and Ministers) were subject to s. 133. The enactments of the Government must
be viewed as an extension of the legislative power of the Legislature and accordingly being within s. 133.
     Regulations which were neither made by the government nor subject to approval by the
         government were NOT subject to s. 133. By-laws of local and municipalities were also not
         subject to 133, even if they needed government approval.
     In Re Manitoba Language Rights (1985), Man was obligated to re-enact not only statutes that
         had been enacted in English only, but also the categories of delegated legislation that were
         defined in Blaikie No 2.

Language of Courts
     s. 133 Con Act 1867 gives a choice of either French or English to litigants in the federal courts
        and the Courts of Quebec.
     Section 23 of the Manitoba Act imposes similar requirements on the courts of Manitoba.
     Section 19(2) of the Charter imposes a similar requirement on the courts of NB.
The Courts of the other 7 provinces are under no similar con obligation (there are CC provisions,
however, that allow one to have their trial in both languages 530-534). In Blaikie, the provision of the
French Language Charter was struck down that provided for French to be used in the courts of Quebec
and only English in defined circumstances. Section 133 gave to litigates in the courts of Quebec the
option of using English in ANY pleading or process.

Definition of courts: What courts are covered in s.133? In Blaikie, the SCC held that reference to “the
Courts of Quebec” included not only s. 96 courts (federally appointed judges) and the inferior courts
(provincially appointed judges), but also admin tribunals established by statute that exercised adjudicative
functions.
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Language of Process: The court process need not be bilingual (MacDonald v City of Montreal (1986)
SCC – English-speaker defended a speeding ticket on the grounds that the summons, which included the
charge, had been issued by the Quebec court in the French language only).
     The unilingual summons did not infringe s. 133. Section 133, where it conferred a choice of
        language, does not guarantee that the speaker, writer or issuer of proceedings or processes will be
        understood in the language of his choice by those he is addressing.

Language of proceedings: In Societe des Acadiens v Association of Parents (1986) (New Brunswick
case), Beetz J, held that s. 19(2) did not in any case confer on a French-speaking litigant the right to be
heard by a judge who understood French.
     The Society complained that one of the three judges couldn‟t understand French. Following
          MacDonald, he said that while the litigant had the con right to use either English or French,
          neither s. 19(2) nor s. 133 conferred any guarantee that the litigant will be heard or
          understood or that he has the right to be heard or understood in the language of his choice!
          Dickson CJ and Wilson J (minority) disagreed and decided that the litigant‟s right to use either
          French or English impliedly included the right to be understood in the litigant‟s language of
          choice by the judge hearing the case.
Later cases rejected Beetz J‟s restrictive interpretation of language rights: it is now clear that language
rights, like other rights, must receive a “liberal and purposive interpretation”) (DesRochers v Can [2009]).

Right to interpreter: In R v Tan an accused‟s s. 14 right was violated when, during the trial, the
Vietnamese translator was called as a witness. He testified in English, then gave a brief summary in
Vietnamese. This was not good enough to meet the standard of “continuity, precision, impartiality,
competence, and contemporaneousness.” In this case, continuity was not observed because of the break
in interpretation during the defence evidence. Precision wasn‟t observed because the summary didn‟t
convey everything that was said. It wasn‟t even necessary for the accused to show he suffered any
prejudice! The court ordered a new trial.
      Section 14 right to an interpreter applied in any proceedings, which includes civil and criminal
         and probably before an admin tribunal. Whether it applies at the investigative or preparatory
         phase of the proceedings needs judicial decision.

Language of government
Section 16 of the Charter: The Act discussed so far are limited in their bilingualism.
     Section 133 Con Act 1867 and s. 23 Manitoba Act 1870 does not go beyond legislative bodies
         and courts; they say nothing about government services.
But s. 16 and s. 20 of the Charter DO go beyond legislative bodies and courts. This section makes English
and French the official languages of Canada and NB. Subsection (1) and (2) of s. 16 may well have the
effect, however, of conferring on public servants, in the institutions of the federal Parliament and
government and the NB legislature and government, the right to use either English or French as the
language of work. Subsection (3) of s. 16 implies that con language rights are a “minimum not a
maximum” and they can be complemented by federal and provincial legislation (MacDonald v City of
Montreal).

Section 20 of the Charter: This section imposes an obligation on government of Canada to provide
bilingual services to the public. When 20 applies, the principle of equality of both official languages that
is guaranteed by s. 16(1) must be respected (DesRochers v Canada (2009)).
      Not just about accommodating languages, but services must be of “equal quality”!
      In NB the obligation to provide bilingual services attaches to any office of an institution of the
        legislature or government of NB.
The Plaintiff in Societe des Acadiens (2008) was a French-speaking resident of NB who received a
speeding ticket by an RCMP officer in English. She paid the ticket, but brought a proceeding for a
                                                     39


declaration that, but virtue s. 20(2), she was entitled to receive police service in the French language. SCC
confirmed that the RCMP was a federal institution that was in all provinces subject to the minimum
obligations of 20(1). However, when providing provincial police service under contract to a province, the
RCMP was also a provincial institution, which meant that in NB, when the force was providing provincial
police services (as was the case here), the force was subject to the unqualified obligations of s. 20(2).
Therefore, the plaintiff was entitled to communication in French from the RCMP officer who gave her the
ticket. There is no con obligation to provide government services in both official languages in the
other 9 provinces.

Language of commerce
None of the language right in the con of Canada protects the use of the English or French language in
commercial (or private) settings. However, statutory language requirements may offend the guarantee of
freedom of expression s. 2(b) of the Charter. See Ford v Quebec (1988) where the SCC struck down a
provision in the Quebec Charter of the French Language that required commercial signs and adverts to be
in French only. The Court held that the freedom of expression included the “freedom to express oneself in
the language of one‟s choice.” While section 1 could save provisions that protected the French language,
this one went too far in excluding all languages but French in commercial settings. But note the
government of Quebec could not accept the nullification of its sign-language law in Ford. They re-enacted
the prohibition of English on outside commercial signs and adverts (while allowing bilingual interior
signs). The new law was protected from JR by a notwithstanding clause, as authorized by s. 33 (the
override power) of the Charter. Language rights are NOT subject to override while freedom of
expression, for example, is (s. 33 permits override of only ss. 2 and 7-15 of the Charter).

Language of education
Section 93 of Con Act 1867: This section confers upon the provincial legislatures the power to make laws
in relation to education. But it prohibits the legislatures from prejudicially affecting rights or privileges
with respect to denominational schools existing by law at the time of confederation.
      This section applies to each of the original confederating provinces (On, Que, NB, NS – BC and
         PEI as well).
Because s. 93 (and its other provincial counterparts) confers upon provincial legislatures the power to
make laws in relation to education, it follows from the ancillary nature of the power over language that
the provincial legislatures have the power to prescribe the language of instruction in the schools.
However, as the second part of s. 93 states, if a particular language of instruction was a right or privilege
of denominational schools in a particular province at the time of confederation, then the province would
be disabled from compelling the denominational schools to instruct in a different language.

In Mackell (1916) (PC), it was held that Ontario had the power to require that English be the language of
instruction in French-speaking Catholic separate schools in the province. The Lords examined separate
schools in Ontario at the time of confederation, and concluded that the law did not confer upon the
separate schools the legal right to use French as the language of instruction.
      No such right existed at confederation; therefore it wasn‟t preserved by s. 93. However, the case
         implied that if the law at confederation had conferred that language right (giving trustees a right
         to choose language of instruction), then s. 93 would have preserved (and entrenched) it, and the
         province would have been unable to stipulate to the trustees of separate schools the language of
         instruction to any of their schools. No such right existed in Ontario (and probably not in NB, NS,
         PEI, or BC). But the point is still open to the other province.

Section 23 of the Charter: This preserves minority language educational rights. This confers on Canadians
who are member of the English-speaking minority in Quebec or the French-speaking minority in the other
provinces the right to have their children receive primary and secondary school instruction in the
minority language in that province. It applies to certain categories: 1) the mother tongue of the party, 2)
                                                    40


the language of primary school instruction in Canada of the parent, 3) the language of instruction in
Canada of one child of the parent.
     1. Mother tongue of parent – A Canadian in, say, Ontario (English majority), whose first language
        is French, has the right under 23(1)(a) to have his or her children receive primary and secondary
        school instruction in French. The parent‟s “first language” has to be English or French, and has to
        still be understood by them. But note s. 59 Con Act 1982; thus, 23(1)(a) doesn‟t apply in Quebec
        yet.
     2. Section 23(1)(b) applies to citizens who have received their primary school instruction in Canada
        in the minority language of the province where they now reside (Canada Clause). People who
        move from province to province retain the right to have their children educated in the same
        language as that in which the parent was educated anywhere in Canada. Quebec is NOT
        exempt from this. So, a Canadian citizen who had been educated in English in NS, and who
        moved to Quebec, would have the right under para (b) to send his children to English-language
        schools in Quebec. Para (b) wouldn‟t apply to that person in Quebec if they had been educated in
        NS in French (instead of English), or if he had been educated outside Canada (AG of Quebec v
        Quebec Protestant School Boards (1984) found that a clause in the French Charter was
        inconsistent with 23(1)(b) of the Charter).
     3. Section 23(2) (the third category of parent minority educational language rights) applies to
        citizens who have a child who has received or is receiving primary or secondary school
        instruction in English or French in Canada. Such persons have the right to have all their children
        receive their schooling in the same language. It would include a Quebecer who already had a
        child in an English-language school in Quebec or an Albertan who moved to Quebec and who
        before the move had a child in an English-language school in Alberta.

Where numbers warrant: The three categories above are not absolute rights. Section 23(3)(b) provides
that the right “includes, where the number of those children so warrants, the right to have them receive
that instruction in minority language educational facilities provided out of public funds.”
      The Number of children might be so small that the were-numbers-warrant threshold of paragraph
         (a) would not be crossed, and no programme of minority language instruction would be required
         (Mahe v Alberta (1990)).
Mahe held that the numbers did warrant a guaranteed number of Francophone representatives on the
school board that operated the existing French-language school (but not their OWN board) (see. 23(3)(b)).
Such a French-language school board in Manitoba was required in Re Public Schools Act (Man) (1993)
where exclusive management and control was given over the French-language minority. In Arsenault-
Cameron v PEI (2000) the issue was whether the where-numbers-warrant test in s. 23 mandated a
French-language school in Summerside (or whether they‟d take a bus 28kms to another school).
      The number of students for the new school was only around 49, and the bus journey was less than
         the average English student! SCC ordered that a school be built, and said the number would
         rise since more kids would take advantage of the school. Minister said it would be hard to fit
         in all the requirements of the new school (music, gym, resource teaching, etc). Court said that
         educational requirements established to address the needs of the majority language students
         cannot be used to trump cultural and linguistic concerns appropriate for the minority language
         students.

Supervision of remedial orders: A breach of a Charter right allows the court to award “such remedy as the
court considers appropriate and just in the circumstances” (s. 24(1)). See Doucet-Boudreau v NS (2003)
where a SC judge ordered 5 new schools to e built, and held that the court retains jurisdiction to hear
reports from the government respecting compliance and progress. This was the first time a Canadian court
had made provision for judicial supervision of compliance with a section 24 (1) order. The AG appealed
only the provision for judicial supervision. The SCC upheld the provision for judicial supervision (5/4).
The dissenting judges felt the courts moved outside their adjudicative role and outside their expertise. The
                                                      41


parents could always get a contempt order if the decision wasn‟t followed. But the SCC upheld the trial
judge‟s order. They took the view that the supervisory order was appropriate and just in the circumstances
(to avoid delays by government, etc).

    Aboriginal and Treaty Rights (Hogg, Chapter 28)
             Con Act 1867 (s. 91(24)) – Indians and land reserves for the Indian (federal head)
             Con Act 1982 (s. 25 and s. 35) –

Section 91(24) – Idea was that the federal government would be more likely to respect the Indian reserves
that existed in 1867, and generally to protect the Indians against the interests of local majorities. The
Royal Proclamation of 1763 had established that treaty-making with the Indians was the sole
responsibility of the Imperial Crown in right of the UK. After confederation, the federal government was
the successor. There are two powers in this section:
     1. power over Indians and
     2. powers over lands reserved to Indians.

Indian: It means people who were here long before European contact (Indian is a Columbus mistake
because he thought he was in India). There are about 700,000 status Indians in Canada. But there are lots
outside the statutory definition (Indian Act) who have Indian blood (200,000). Laws in regard to Indian
property and Indian education have traditionally been part of federal Indian policy, and could probably be
justified as aiming at peculiarly Indian concerns.

Treaties: So far as treaties entered into with other countries, other Indian tribes or bands, the general rule
is that they have NO effect on the internal law of Canada unless they are implemented by legislation.
      Section 35 Con Act 1982 now gives con protection to rights created by treaties entered into with
          Indian tribes or bands. These treaties, before 1982 (when s. 35 was given) could not stand against
          inconsistent federal legislation.

Provincial legislative power
Application of provincial laws: The general rule is that provincial laws apply to Indians and lands
reserved for the Indians. In R v Hill (1907) the Ontario CA held that a provincial law confining the
practice of medicine to qualified physicians applied to Indians (Indian was convicted of unlawfully
practicing medicine – result would have been the same if it was on a reserve or not). In Paul v BC (2003)
the SCC held that BC‟s Forest Practices Act applied to an Indian who had been cutting timber in breach
of a prohibition in the Act. These decisions establish that the provinces have the power to make their laws
applicable to Indians and on Indian reserves, so long as the law is in relation to a matter coming within a
provincial head of power (so, the head of power is no different than banks, federally-incorporated
companies and interprovincial undertaking, which are federal heads, but still obey a number of provincial
laws). There are 5 exceptions to the general rule that provincial laws apply to Indians and lands
reserved for the Indians:
    1. Singling out – if the provincial law singled out Indians or Indian reserves, it would run the risk of
         being classifies as “in relation to” Indians or reserves, and would be invalid.
    2. Indianness – a provincial law that affect an integral part of primary federal jurisdiction over
         Indians and lands reserved for Indians will be inapplicable to Indians and their lands, enough
         though the law is one of general application that is otherwise within provincial competence. An
         analogy is the immunity from provincial laws that impair a vital part of undertaking within
         federal jurisdiction. So, provincial laws can’t affect aboriginal rights or treaty rights (Simon v
         The Queen (1985)). Hunting on a reserve is such a significant element of traditional Indian ways
         that it should probably be free of provincial regulation (R v Jim (1915)). The Indianess exception
         was relied on in Kitkatla Band v BC (2002) to challenge a provision of BC‟s Heritage
         Conservation Act that conferred discretion on the minister to license the destruction of heritage
                                                    42


       property (logging company was to destroy some trees that had aboriginal significance). SCC held
       that the Act was a valid exercise of provincial power over property and civil rights in the province
       (92(13)). They held that the peoples had not established any aboriginal right or title to the
       culturally modified trees, which were on Crown land. The application of the Act to the trees did
       not affect Indianness.
    3. 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 this doctrine.
    4. Natural resources agreement – Provincial laws cannot deprive Indians of the right to take game
       and fish for food. The “Natural resources agreement” is part of the Con of Canada.
    5. Section 35 – aboriginal treaty rights have been protected since 1982 by section 35 of the Con Act
       1982. Even before 1982 aboriginal and treaty rights were not vulnerable to provincial law due to
       Indianness (above). In the case of treaty rights, s. 88 of the Indian Act expressly provided that
       provincial laws of general application must yield to the terms of any treaty. Section 35 gives a
       con status to aboriginal and treaty rights.

Section 88 of the Indian Act 1951 – it makes clear that provincial laws of general application apply to
Indians. It incorporates by reference provincial laws, making the provincial laws applicable as part of
federal law. “Laws of general application” does not include provincial laws that single out Indians.
     Section 88 is not merely declaratory of the existing con position. It expands the body of
         provincial law that is applicable to Indians (Dick v The Queen (1985)).
Note that provincial laws affecting Indianness, which do not apply to Indians of their own force, are made
applicable by s. 88. It is clear from this section that the paramountcy doctrine continues to apply to
provincial laws of general application, notwithstanding their adoption by a federal statute. Also note that
provincial laws that do not affect Indianness apply to Indians of their own force, not through s. 88, and
they are subject to the ordinary rule of paramountcy, not the expanded rule of s. 88. The closing words of
s. 88 seem to go further than the general paramountcy doctrine and will render inapplicable to Indians
some provincial laws of general application which are not in direct conflict with the Indian Act. The
treaty exception in s. 88 means taht any conflict between a treaty made with the Indians and a provincial
law of general application has to be resolved in favour of the treaty provision. Always not that, according
to Dick, s.88 applies only to provincial laws that affect Indianness. Section 88 becomes less important
with the adoption of s. 35 in 1982, which gives explicit con protection to aboriginal and treaty rights.

Natural recourse agreement
This is a further limitation on provincial competence to make laws applicable to Indians (agreement
entered into between Canada and the 3 Prairie Provinces – now given con status in an amendment in
1930).
     Thus, in Alberta, Saskatchewan, and Manitoba, the Indians are guaranteed the right to take game
         and fish “for food” at all seasons of the years on the lands specified.
Provincial laws to the contrary are inapplicable to Indians. “For food” are important restrictions
(rights for commercial purposes are cut down by the agreement). In R v Horseman (1990), an Alberta
Indian‟s treaty right to hunt commercially (Treaty 8 in 1899) was merged and consolidated in the Alberta
agreement (this, part of his rights were extinguished). Indians weren‟t even consulted on the terms of the
agreement and gave no consent to the con amendment.

Aboriginal rights
Recognition of aboriginal rights: Again, s. 35 of the Con Act 1982 gives con protection to the existing
aboriginal and treaty rights if the aboriginal peoples of Canada.
      Aboriginal rights that have not been extinguished are recognized by the common law and are
          enforceable by the courts (leading case is Guerin v The Queen (1984)).
The SCC recognized the aboriginal title of an Indian band to land in BC. Dickson CJ described aboriginal
title as “a legal right derived from the Indians‟ historic occupation and possession of their tribal lands.”
                                                     43


The band surrendered land to the Crown so they could lease to a golf club. The Crown leased the land, but
on terms less favourable than those agreed to by the Band. The court held that the aboriginal title to the
land gave rise to a fiduciary duty on the part of the Crown to deal with the land for the benefit of the
surrendering Indians (band entitled to damages). Note that s. 35 was NOT in force at this point!

In R v Sparrow, the court held that s. 35 did provide con protection for the aboriginal right (to fish on
this river), and the court laid down the principles that govern s. 35.
      These cases confirm that aboriginal rights do exist at common law, and they are enforceable by
         the aboriginal peoples. They also recognize a fiduciary duty (or trust-like) obligation on the part
         of the Crown, Sparrow decides that aboriginal rights, including the fiduciary duty, are now con
         guaranteed through s. 35 of the Con act 1982.

Definition of aboriginal rights: These rights come 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.”
Lamer CJ in Van der Peet (1996) stated that because aboriginals were already here and had distinctive
cultures. This fact distinguishes them from all other minority groups in Canada, and explains why
aboriginal rights have a special legal, and now con status.
      Before Van der Peet, the SCC had made no attempt to define their (aboriginal rights)
         characteristics (although they were recognized in Sparrow and Guerin). They were “unique” and
         “sui generis.”
This case established the “test” to identifying an “existing aboriginal right” within the meaning of s, 35.
On the facts, the D was convicted of selling fish (caught under the authority of Indian food-fish licence).
Under the Federal Fishers Act, it restricted the holder to fishing for food (selling fish was prohibited). Did
the D have an aboriginal right to sell fish? SCC held that unlike fishing for food, the practice of selling
fish was not an “integral” part of the Sto:lo culture. It was only after contact that they started to supply a
market. The right must be
 (1) element of practice, custom or tradition integral to the distinctive culture of the aboriginal
     group asserting the right;
 (2) in order to be integral, the practice must be of central significance to the aboriginal society.
     That is, it must be a defining characteristic of the society which makes the culture distinctive;
 (3) the practice must have developed before contact, but a practice that has evolved in modern
     forms must trace its origins back to the pre-contact period (but note R v Powley).

In R v Gladstone (1996), a right to sell herring spawn was established. Evidence showed that, before
contact, the Heiltsuk people habitually sold large quantities of herring to other Indian tribes. It was not to
dispose of surplus food (as in Van der Peet) nor was it incidental to social and ceremonial traditions (as in
Smokehouse). The trade in herring spawn on kelp was a central and defining feature of the Heiltsuk
society.

In Mitchell, the SCC struck down decisions to allow a group to bring goods purchased in the US across
the St. Lawrence River into Canada without paying a customs duty on the goods. Pre-contact trade was
not established by the Mohawks. Participation in northerly trade was not a practice integral to the
distinctive culture of the Mohawk people (trade was only occasional and not integral).
      Can a practice that was adopted by an aboriginal people purely for survival court as one that was
         integral to a distinctive culture? Yes (R v Sappier (2006))!
The group harvested wood for the building of temporary shelters. Could such a practice evolve into a
modern right to cut a truckload of timber on Crown lands for the purpose building a permanent home?
Yes! They were acquitted of unauthorized possession of Crown timber (offence under NB forestry law).
The pre-contact practice of harvesting wood for construction of temporary shelters had evolved
into the modern right to harvest wood by modern means for the construction of a permanent
dwelling.
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Note that in R v Powley (2003), the pre-contact time period for Metis rights was moved forward from the
time of European sovereignty to the time of effective European control. “Pre-contact” (before the
arrival of the Europeans) does not work for Metris peoples since they originated from intermarriage of
French-Canadian men and Indian women during the fur trade period. The other Van der Peet criteria
apply to Metis people.

Aboriginal self-government: This right must exist since they were self-governing before the arrival of
Europeans.
      Had the Charlottetown Accord been ratified in 1992, the inherent right of self-government within
         Canada would have existed.
In R v Pamajewon (1996), the SCC rejected a claim by the First-Nations group to conduct high-stakes
gambling on their reserves. The law was enacted by band-council. The gambling law was not a by-law
made in accordance with the Indian Act; the law was claimed to be an exercise of the First Nation‟s
power of self-government. They were charged with gambling offences under the CC. They applied the
Van der Peet test. Lamer CJ characterized the claim as a right to participate in and to regulate gambling
activities on their respective reserve lands. There was evidence that the group gambled before the arrival
of the Europeans, but it was on a small scale. Thus, it was not an integral part of the distinctive cultures of
the First Nations, and there they had no aboriginal right to regulate gambling. So, right of self-
government extends over to actives that took place before European contact, and that were integral part of
aboriginal society (severe restrictions). Note, if the feds were worried about Indians immunizing
themselves from the criminal law, for example, paramountcy would apply!

Aboriginal title
Aboriginal title: This is the right to the exclusive occupation of land. Title would permit them to hunt,
fish and harvest on their land.
      However, rights to activities like hunting, fishing and harvesting may also exist on land to which
        the aboriginal people do not have title. This is true for the right to fish. Even though the right to
        fish could only be exercised at a particular location, it was not necessary for the aboriginal
        claimants to establish title to the site of the fishing right (Van der Peet test has to be fulfilled first,
        however).
Title was recognized by the Royal Proclamation of 1763, which governed British imperial policy for the
settlement of BNA. As the settlement went across the country, treaties were entered into with the
aboriginal people, who surrendered portions of their land to the Crown, thereby freeing up the
surrendered land for settlement and development. BC (where most of the land was occupied by Indians)
was an exception and settlement took place with no treaties. This led to lots of litigation.

The leading case on aboriginal title is Delgamuukw v BC (1997). Aboriginal title is proved, not by
showing a chain of title originating in a Crown grant, but by showing that an aboriginal people:
     Occupied the land prior to sovereignty.
     The mere fact of pre-sovereignty occupation is sufficient to show that title to the land is “of
         central significance to the culture of the claimants” (thus, the centrality requirement of Van der
         Deet doesn‟t have to be separately established to make a claim for aboriginal title)
     The pre-sovereignty occupation by the first nation has to be exclusive. There could have been
         others there, but they had to have had the power to exclude others if they chose.
Occupation of land must be proved “prior to sovereignty” not “prior to contact.” This relaxes Van
der Deet since pre-contact is earlier than sovereignty. There is no written record, so proof of pre-
sovereignty has to come from stories (violates hearsay rule, but rules of evidence had to adapt to the
realities of pre-sovereignty aboriginal societies). This was a risk in Delgamuukw since the trail judge
rejected a lot of the oral evidence.
                                                     45


     The SCC ordered a new trial, this time admitting the oral histories and give them appropriate
        weight.
Lamer CJ referred to aboriginal title as sui generis (one of a kind). There are 5 differences between
aboriginal title and non-aboriginal title:
    1. aboriginal title derives from pre-sovereignty occupation rather than a post-sovereignty grant from
        the Crown;
    2. Uses of aboriginal title must not be irreconcilable with the nature of the attachment to the land
        which forms the basis of the particular group‟s aboriginal title (land for hunting can‟t be turned
        into a parking lot). There are no comparable restrictions on a fee simple title);
    3. Aboriginal title is inalienable, except to the Crown. The doctrine of inalienability means that the
        Crown has to act as an intermediary between the aboriginal owners and 3rd parties. In order to
        pass title to 3rd parites, the aboriginal owners must first surrender the land to the Crown. The
        Crown then comes under a fiduciary duty to deal with the land in accordance with the best
        interests if the surrendering aboriginal people. An aboriginal nation that wants to alienate its
        lands, or to use its lands in a way that aboriginal title does not permit, can do so indirectly
        by surrendering the lands to the Crown, which can convert them by grant to a fee simple;
    4. Aboriginal title can only be held communally (can‟t be held by a single aboriginal person). It is a
        collective right to land held by all members of an aboriginal nation. Decisions are made by a
        community, rather than an individual owner (which would be the case with fee simple);
    5. Aboriginal title is con protected. The effect of s. 35 is to confer con protection on any
        aboriginal title that was “existing” (not extinguished) in 1982. The protection is not absolute,
        but it does require that any infringement of the right must be enacted by the competent legislative
        body (federal parliament) and must satisfy the Sparrow test of justification. It requires prior
        consultation with the aboriginal owners before any of the incidents of their title was impaired as
        well as fair compensation for any impairment. A fee simple has no con protection. It can be
        extinguished or impaired by the competent legislative body without any con obligation of prior
        consultation or compensation.

Extinguishment of aboriginal rights: Aboriginal rights (including title) can be extinguished in two ways:
    1. by surrender and
    2. by con amendment.
The surrender must be voluntary and to the Crown. A treaty will confer treaty rights on the aboriginal
people in substitution for the surrendered aboriginal rights. It is now clear that a con amendment without
active participation of the affected aboriginal people would be a breach of the Crown‟s fiduciary duty to
the aboriginal people (although amendments with no participation have happened in the past – R v
Horseman [1990]). In 1982 the power for the feds to extinguish by legialtion was removed by s. 35 con
Act 1982. As per Sparrow, regulation of aboriginal and treaty rights are fine so long as it satisfies
strict standards of justification, but it does NOT permit the extinguishment of aboriginal and treaty
rights.

Treaty rights
Before 1982, Indian treaty rights were explicitly protected from derogation by provincial law, but not
federal law (by s. 88 Indian Act). Since 1982, Indian treaty rights have been protected by s. 35 from
derogation by either federal or provincial law.

History: From early days of settlement of the French and English, treaties of peace and friendship were
entered into with the Indian nations. They gave hunting and fishing rights in exchange for peace. In 1850
the Robinson treaties were signed, and between 1871 and 1921 11 numbed treaties were entered into
(covering a large part of Ontario and Prairie Provinces). On their face, they cede Indian lands to the
Crown in return for hunting and fishing rights, as well as the reservation of portions of the treaty lands for
the Indians. By the 1920s (last of the treaties), there was still a large portion of Canada where no treaty-
                                                    46


making had taken place. After the Calder case (1973) recognized aboriginal rights, the government of
Canada resumed the treaty making process. Land claim agreements reserve large areas of land
(settlement land) to the aboriginal signatories as well as considerable sums of money in return for the
surrender of aboriginal rights over non-settlement land. Since s. 35, these land claim agreement acquire
con status.

Definition of treaty: The parties must be the Crown and the aboriginal nation of the other side, signatory
must be agent of the Crown, there must be intention to create legal relations, there must be consideration,
and the must be a formality – i.e. some measure of solemnity (Simon v The Queen and R v Sioui). In
Simon peace and friendship was given for hunting and fishing rights, and in Sioui, the Indians were free
to exercise religion, their customs, and trading with the English. Treaties should be liberally construed
and doubtful expression resolved in favour of the Indians (Nowegijick v The Queen [1983]).

Natural progression of treaty rights
Interpretation of treaty rights: As above noted, they should be liberally construed in favour of the
Indians. See R v Marshall (Marshall 1, 1999) for an extremely generous interpretation of a treaty. The
ratio of the case was that the truck house clause conferred a modern right to hunt fish and gather the
things that in 1760 were to be traded at the truck house (extended to a modern right to fish for eel). But
note Marshall 3 (2005) where Indians operated commercial logging on Crown land. This was not a
natural progression from using wood in 1760 as firewood, and to make sleds, canoes, snowshoes, etc
(SCC). While modern eel fishing was the logical evolution of a traditional trading activity, as
decided in Marshall 1, the same case could not be made for logging. While treaty rights are not frozen
in time, modern logging activity could not be characterized as the natural evolution of the minor trade in
wood products that took place at the time of the treaty. The SCC in R v Morris (2006) even allowed
hunting at night with a spotlight (forbidden by BC Wildlife Act). The treaty was signed in 1852 by the
Governor of the Colony of Van Island and the Saanich Nation. It simply said they had a right to, “at
liberty, hunt over the unoccupied lands.”

Extinguishment of treaty rights: They can be extinguished in the same way as rights (two possibilities
above).Before 1982, they could be extinguished by federal legislation, but that has changed with s. 35.
Without competent legislation (before 1982) or a con amendment, a treaty cannot be extinguished without
the consent of the Indians concerned (R v Sioui).

The need for Constitutional protection
Section 35 of the Con Act 1982 provides that the existing aboriginal and treaty rights of the aboriginal
peoples of Canada are hereby recognized and affirmed. This gives con recognition (but not definition) to
“aboriginal and treaty rights,” and protects them from legislative attack. Section 25 makes clear that the
equality guarantee in s. 15 of the Charter does not invalidate aboriginal or treaty rights. Finally, 35.1
states that con amendments to the native rights provisions on the Con Acts 1867 and 1982 that directly
apply to aboriginal peoples will not be made without a prior con conference involving their participation.
Section 35, 25, and 35.1 reinforce 91(24) in their recognition of special status for the aboriginal
peoples.

Section 35
Outside Charter of Rights: Note that s. 35 is outside the Charter (which runs from 1 -34).
     The advantage is that it isn‟t qualified by s. 1 of the Charter.
     They are also not subject to legislative override under s. 33 Charter.
     However, it means that the rights are NOT enforceable under s. 24, a provision that permits
        enforcement only of Charter rights.
                                                     47


“aboriginal peoples of Canada:” This includes the Indian, Inuit, and Metis peoples of Canada. There is
no definition, which means it includes status and non-status Indians. In R v Powley (2003 above) the court
tried to partially define Metis, which is the hardest to define (inter-marriage with Europeans). The three
broad factors include:
     1. self-identification,
     2. ancestral connection, and
     3. community acceptance. That is, they have to be a member of and participate in the modern Metis
         community. The two in this case were held to be Metis (met the criteria) and were acquitted from
         the provincial regulation.

“Existing:” Section 35 protects “existing” aboriginal and treaty rights. Section 35 does not exclude rights
that come into existence after 1982. The phrase “or may be so acquired” in 35(3) makes clear that treaty
rights acquired after 1982 are protected by s. 35. The SCC held in R v Sparrow, that “existing” in s. 35
meant “un-extinguished.” Thus, a right that had been validly extinguished before 1982 was not
protected by s. 35. So, s. 35 did not retroactively annul prior extinguishments of aboriginal rights so as to
restore the rights to their original unimpaired condition. While an aboriginal right could be extinguished
by federal statute before 1982, it would have to be “clear and plain.” On the facts, the statute was not
clear enough to extinguish the right.

“Recognized and affirmed”: Section 35 provides that existing aboriginal and treaty rights are recognized
and affirmed. The Court in Sparrow held that this phrase should be interpreted according to the principle
that treaties and statutes relating to Indians should be liberally construed and doubtful expressions
resolved in favour of the Indians. The phase should also be read an incorporating the fiduciary obligation
that government owes to the aboriginal peoples. As a con guarantee, s. 35 has the effect of nullifying
legislation that purported to abridge the guaranteed rights.
      Although 35 is not part of the Charter (and not subject to s. 1), it is subject to regulation by
         federal laws, provided the laws met a standard of justification not unlike s. 1. Any law that
         had the effect of impairing an existing aboriginal right would be subject to JR to determine
         whether it was a justified impairment.
      It would have to pursue an objective that was compelling and substantial (Sparrow). If the net-
         length restriction satisfied the standard of justification, then it would be valid and Sparrow
         would be charged. If it didn’t satisfy the standard of justification, then it would be invalid
         and he’d be acquitted.

Application to treaty rights: The doctrine is Sparrow applies to aboriginal rights AS WELL as treaty
rights (s. 35 applies to both) (R v Badger (1996)).
      We are left with the unsatisfactory position that treaty rights have to yield to any law that can
         satisfy the Sparrow standard of justification.
In R v Marshall (1999) the SCC upheld the position that Sparrow applied to treaty rights, and didn‟t say
that any higher standard of justification was required to regulate a treaty. But it differentiated between
“defining” a treaty right and “regulation” a treaty right. Laws imposing catch limits or other restrictions
on aboriginal fishing that had as their purpose limiting the aboriginal catch to a “moderate livelihood”
were simply “defining” the treaty right and didn‟t need to satisfy the Sparrow test.
      Only those laws that would take the aboriginal catch below the quantities below those reasonably
         expected to produce a moderate livelihood should be regarded as “regulating” the treaty right
         (which would be subject to the Sparrow test).

According to Sparrow, fed law can regulate the aboriginal and treaty rights, but NOT extinguish
them (can only be extinguished by surrender and con amendment, and fiduciary duty probably
requires active participation for an amendment).
                                                      48


Application to provincial laws: Sparrow also held that s. 35 con protects aboriginal and treaty rights from
provincial law. Since the law at issue in the case was Federal, it didn‟t have to decide on the issue. The
SCC held in R v Cote (using R v Bader as authority) that the Sparrow standard of justification was
available to provincial laws. It was stated that “the text and purpose of s. 35(1) do not distinguish between
fed and pro laws which restrict aboriginal or treaty rights, and they should both be subject to the same
standard of con scrutiny” (this was obiter).

Duty to consult aboriginal people: Section 35 not only guarantees existing aboriginal and treaty rights, it
also imposes on government the duty to engage in various processes even before an aboriginal or treaty
right is established (s. 35 gives a con protection of special relationship between the Indian and the
Crown).
     The duty to consult and accommodate was established in Haida Nation v BC (2004). A company
         was given licence to cut trees on provincial Crown land. But at this time, negotiations were still
         underway (the Islands were the traditional homeland of the Haida people). The cutting would
         affect their land if and when their title was established.
SCC held that s. 35 required the Crown to consult with the Haida people. Since the province was
aware the cutting would affect a right and title when they issued the licence, it was under a duty to consult
with the Haida before issuing the licence. Not having done so, the Crown was in breach of s. 35 and the
licence was invalid! So, this duty extends not only to federal government (91(24)), but provincial
governments as well (as in this case) (all that is needed are reasonable efforts to consult and
accommodate).
     There is no duty for the government to agree (see Taku River Tlingit First Nations v BC
         (2004)). The BC government gave permission to reopen a mining while the land was under
         negotiations. There was a duty to consult, and the mining would affect the Indians‟ claim. But the
         First Nations took place in the environmental process. Although they were not satisfied, the
         process fulfilled the province‟s duties of consultation and accommodation. Meaningful
         consultation did not require agreement, and accommodation required only a reasonable
         balance between the aboriginal concerns and competing considerations.
Also note Nikisew Cree (2005) (a striking example of interpreting treaties in favour of the Indians).
Indians surrendered their land to the federal Crown (treaty 8 1899) which allowed them to hunt fish and
trap throughout the surrendered land. There was a clause which allowed the Crown to build tracks
through the land. The fed government proposed to build a road in a national park on the fed Crown land.
This was objected to, EVEN if the project was consented to. The Crown still had a duty of consultation
and accommodation.
     In appropriate cases, the duty of consultation with the affected people would lead to a duty
         to accommodate, although it did not require that aboriginal consent be obtained!

Section 25 of the Charter
This section does not create any new rights. It is an interpretive provision designed NOT to derogate from
any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada (to
ensure that aboriginal rights aren‟t caught by s. 15 – the equality clause). Section 35 obviously leaves s.
25 with very little work to do. Section 25 is the same as s. 35 in its description of the rights-holders as the
“aboriginal peoples of Canada.”

Section 35.1
The special status of aboriginal peoples is now firmly established.
                                                      49


    Interpreting the Charter of Rights and Freedoms (Hogg, Chapter 36)

Protection of civil liberties
All Canadian jurisdictions (except Quebec) engaged in a review of the statute book and enacted
amendments to a large number of statutes to correct perceived violations of Charter rights. If a law (or
government act) is challenged, and if it is found by a court to violate one of the civil liberties guaranteed
by the Charter, the court will declare the law (or act) to be nugatory. Thus, civil liberties are protected
from the actions of Parliament, legislatures, government agencies and officials. But note the democratic
character of Canadian institutions, independence of the judiciary, and traditional respect for civil liberties
is the main safeguard for civil liberties, NOT the Charter. Without them, the Charter wouldn‟t function as
it does (Hogg). The Charter adds a dimension of allegiance to Canada as a whole that did not exist before
1982. The Charter is to that extent a unifying instrument. It supplies a set of uniform national standards
for the protection of civil liberties.

Expansion of judicial review
Charter cases have proven to be much more numerous than federalism cases. Charter cases are also more
policy-laden (rights are expressed vaguely in the Charter, which often comes into conflict with other
Canadian values).

Vagueness of concepts: Some rights in the Charter are specific, others are not. The meaning of, for
example, “life, liberty and security of the person,” “association,” and “fair and public hearing” have to be
determined by the courts. An attitude of judicial activism would be sympathetic to the expansion of the
guaranteed civil liberties, resulting in frequent invalidation of the decisions of the political branches. The
Charter has ushered in a period of extraordinarily active judicial review (Hogg). Vagueness turns into
more discretion by the courts.

Role of section 1: Charter values should not always take precedence over non-Canadian values. Freedom
of expression is important, but there are a number of laws that limit what a person can say or write
(misleading advertising, fraud, obscenity, contempt of court, etc). So, there has to be a balance or
compromise between the conflicting values (some laws that limit freedom of expression are just as import
as freedom of expression itself!). So, section 1 makes clear that a law limiting a Charter right is valid if
the law is a “reasonable” one that “can be demonstrably justified in a free and democratic society.” The
government may have this in mind, but the final say lies with the courts.
      Does the law derogate from a Charter right? If not, then that‟s it. If yes, then move on to section 1
        to see if the derogation is justified. Thus, judicial review is a two stage process here. Has the
        legislative body made an appropriate compromise between the civil libertarian value guaranteed
        by the Charter and the competing social or economic objectives pursued by the law?

Role of s. 33: Section 33 (override power) enable the Parliament or legislature to enact a law that will
override the guarantees in s. 2 and ss. 7-15 (notwithstanding clause). Once this declaration has been
enacted, the law that it protects will not be touched by the overridden provision of the Charter. With
respect to everything else (democratic rights, mobility, language rights, or sexual equality), no override is
possible. The fact that the elected legislature bodies have been left with the last word answers a good deal
of the concern about the legitimacy of judicial review by unelected judges.

Dialogue with legislative branch
The idea of dialogue: Section 33 means judicial decisions to strike down legislation can be revered by the
competent legislative body. Once a law is struck down, the legislature may re-enact another law with the
same objective, but with a less obtrusive effect on the Charter right. The decisions of the courts leave
room for a legislative response (in 66 cases SCC has struck down a law on Charter grounds, and all but 17
had a response from the respective legislatures).
                                                      50


     So, the courts should not be looked at as a veto, but as starting a dialogue with the legislature.

Second look cases: When Parliament (or a legislature) has revised and re-enacted a law that the courts
have found unconstitutional, the Court is likely to uphold the second attempt (R v Mills 1999). However,
in 2002, two cases were divided sharply on the degree of deference that a second try by Parliament should
receive (R v Hall 2002 and Sauve v Canada 2002). In Hall, McLachlin CJ for the majority upheld the
amended provision on denying bail as “as excellent” example of the “con dialogue” between the courts
and Parliament (5/4 split). She pointed out that before enacting the challenged legislation; they took
account of the reasoning of the Court in the Morales decision. The minority felt that the admin-of-justice
language was still too vague and violated 11(e). Three weeks after in Sauve, the Court reviewed the
second attempt by Parliament to impose voting disqualifications on prisoners. The Court earlier struck
down a provision of the Canada Elections Act that disqualified all persons serving prison sentences from
voting in federal election (infringed s. 3 and couldn‟t be justified under s. 1). Parliament then tried to re-
enact the legislation by narrowing the provision as applying to prisoners sentenced to “two years or
more.” The Court held it was not justified under s. 1 (5/4 split). The dissenters felt that this “dialogue”
took place, and Parliament should have the last word. McLachlin CJ didn‟t agree with this (as she did in
Hall). She stressed the importance of voting in our democracy and stated that
     “the healthy and important promotion of a dialogue between the legislature and the courts should
        not be debased to a rule of „if at first you don‟t succeed, try, try again.‟”

Remedial discretion: Starting in 1985, the Court occasionally suspended the operation of a declaration of
invalidity for a period of 6 months or a year or 18 months in order to allow the competence legislative
body time to enact corrective legislation. So the unconstitutional law is still in force for that time. Would
only do so if to immediately strike the law down would
    (1) pose a danger to the public;
    (2) threaten the rule of law; or 3)
    (3) result in the deprivation of benefits from deserving people (Schachter v Canada 1992).
But note that in some cases the dialogue rationale has supplanted the emergency rationale as sufficient
basis for suspension of a declaration of invalidity. That is, the court would prefer the legislature design
the appropriate remedy. However, note Doucet-Boudreau where the SCC upheld the trial judge‟s progress
report hearings regarding new schools that were being built after a finding of a s. 23 Charter violation.
Obviously, when governments refuse to obey the con, there comes a point when dialogue must be
replaced with coercion (SCC 5/4 split). Did the courts go too far here?

Political questions
By denying government the power to do something it wants to do, or even by affirming the existence of
the power, the courts are inescapably important parties to political controversies. There is no political
questions doctrine in Canada (see Operation Dismantle v The Queen (1985)). Was the Can Government‟s
decision to permit the US to test its air-launched cruise missile in Canada a violation of the Charter? The
SCC held there was no cause of action. It’s not a matter of whether a question is too political, but
whether it is one of law (see Canada Assistance Plan 1991 – plan for 5% cap on the growth of the feds‟
payments to the province under open-ended cost-sharing agreements). The Court turned this into a legal
question. There was nothing in the Con that would preclude such a government proposal. Although the
secession of Quebec was a very political issue, it was answered as one of law in Secession Reference
(1998). Secession can only take place if in compliance with the amending procedures of the Con, which
prevented unilateral secession by a province.

Characterization of laws
For Charter review, if the purpose of a law is to abridge a Charter right, then the law will be
unconstitutional. This is similar to federalism review. However, the big difference between Charter and
federalism review is the “effect.” If the effect of a law is to abridge a Charter right, then the law will be
                                                      51


unconstitutional (unless saved by s. 1), even if the purpose was constitutional and benign! This is opposite
of federalism review.

Purpose or effect: So, a law will offend the Charter is either its purpose or its effect is to abridge a Charter
right. Legislation with an invalid purpose cannot be justified under s. 1 (R v Big M Drug Mart (1985)).
The SCC held that the history of the Lord‟s Day Act established that its purpose was the religious one of
compelling the observance of the Christian Sabbath (violated s. 2(a) free of religion). It was not necessary
to look at effects because “effects can never be relied upon to save legislation with an invalid purpose.”
However, note R v Edwards Books and Art (1986) where another Sunday shopping law was challenged,
except this time it was for the secular purpose of creating a uniform pause day for retail workers. Thus, it
passed the purpose test. However, it had the effect of imposing a burden on retailers whose religious
beliefs required them to abstain from work on a day other than Sunday (thus, another s. 2(a) violation).
However, the Court relied on the benign purpose of the law to uphold it under s. 1. Note that the Lord‟s
Day Act has been the only law failing the purpose test in the SCC. The purpose is usually benign, but the
incidental breach is the effect of the pursuit of the purpose.

Severance: R v Big M Drug Mart (1985) is the only example of an entire Act being struck down as
unconstitutional under the Charter. Now, where there has been a holding of unconstitutionality, the
effected provision or provisions are severed from the rest of the Act, allowing the rest of the Act to stay in
effect.

Reading down: Where language of a statute allows for two interpretations, one of which would abridge a
Charter right and one that would not, the latter approach is adopted.

Interpretation of Charter
Progressive interpretation:
     A con is difficult to amend and its likely to remain in force for a long time, therefore this calls for
        flexible interpretations so the Con can be adapted over time to changing conditions (progressive
        interpretation – see Edwards v AG Can (1930)).
This is where Lord Sankey‟s famous metaphor of a “living tree capable of growth and expansion
within its natural limits” originated.

Generous interpretation: The living tree metaphor means that the con should receive a generous
interpretation (large and liberal interpretation). Edwards decided that woman were “persons” and
accordingly eligible to be appointed to the senate. A generous interpretation of the Charter will have the
effect of reducing the legislative bodies‟ power. It is the course of judicial activism since it will lead to
more invalidation of laws than a narrow interpretation of the Charter. In R v Oaks (1986), the Court
decided to prescribe a single standard of s. 1 justification for all rights, to make that standard a high one,
and to cast the burden of satisfying it on the government. However, in practice it isn‟t so strict. If the
rights covered by the Charter are wide, then the scope is bound to reach conduct that is not really worthy
of con protection. Note freedom of expression: if the Court decides to deem that every communicative
act, no matter how trivial, false or harmful, enjoys con protection, then it is inevitable that the Court will
relax the standard of s. 1 justification in order to accommodate laws that are generally approved (Irwin
Toy – adverts are con protected, but receives regulation of adverts directed at children based on a weak s.
1 argument). Same applies for prostitution, hate propaganda, defamation, nude dancing, etc (limits on any
violate the charter, but can be restricted under s. 1). By going back to the strict Oaks justification test, it
will limit litigation (charter challenges) and give the courts limited role for judicial activism. This can
only be done if the scope of Charter rights is restricted.

Hierarchy of rights: Certain rights can be overridden by s. 33 (s. 2, 7-14, and s. 15). Democratic rights,
mobility, language, and sexual equality cannot be overridden.
                                                       52


     Thus, s. 33 creates to tiers of rights (common rights [subject to override] and privileged rights
         [not subject to override]).
Section 28 (sexual equality) may even be exempt from override AND limitation power of s. 1. That
places s. 28 at the top of the hierarchy. Section 35 is outside the Charter (so not subject to s. 1), but it also
means s. 24 doesn‟t apply (does not provide for a remedy). There doesn‟t seem to be a reason why some
rights are privileged over others?

Conflict between rights: Section 25 contemplates conflict with equality rights (s. 15, prohibits
discrimination on the ground of race). However, the aboriginal and treaty rights are to prevail. Section 29
also contemplates conflict between s. 93 (denominational school rights) and equality under s. 15
(prohibits discrimination of the ground of religion). Section 19 provides that the denominational school
rights are to prevail. In R v Keegstra (1990), a person was accused of wilfully promoting hatred against a
racial group (Jews). He challenged the CC provision based on freedom of expression. Prosecution argued
that the CC provision furthered racial equality (s. 15) and multiculturalism (s. 27). The SCC upheld the
CC provision. The provision did abridge freedom of expression, but was justified under s. 1 (the other
values were relevant to section 1. In this case, the scope of each right, it was held, should be defined
without regard for the existence of other rights. However, note O’Connor (1985) (disclosure of sexual
history case) where the Court had to strike a balance between the accused‟s right to full answer and
defence (s. 7) and the witness‟s right (s. 7 or s. 8) to a reasonable expectation of privacy. It establishes
that definitional balancing (or mutual modification) does have a place in Charter jurisprudence, albeit one
that only arises in special circumstances.

Commencement of Charter
Section 58 of the Con Act 1982 provides that the Act comes into force on a day to be fixed by
proclamation (April 17, 1982). This is the day the Con Act 1982 came into force. The Charter, of course,
came into effect on that day and acts prospectively. A law that was enacted before the Charter, but was
since repealed before April 7, 1982, gave rise to no remedy under the Charter (head tax on Chinese
coming into Canada between which made it difficult to immigrate) (see Mack v Canada 2002). The
same applies with a search or seizure (for i.e.) or other executive or admin actions done prior to 1982.

Undeclared rights
Section 26 is a cautionary provision, included to make clear that the Charter is not to be construed as
taking away any existing undeclared rights or freedoms. Rights or freedoms protected by the common law
or by statue will continue to exist notwithstanding the Charter. But note that this section doesn‟t
constitutionalize these undeclared rights; they continue to exist independently of the Charter, and receive
no extra protection from the Charter.
     These rights differ in that they can be altered or abolished by the action of the competent
         legislative body. Also, the remedy under s. 24 is not available.


    Application of the Charter of Rights and Freedoms (Hogg, Chapter 37)
     Con Act 1982 (s. 32 – Charter applies to the Parliament and Government of Canada and the
       provincial legislatures)

Everyone, anyone, and person: Section 2, 7, 8, 9, 10, 12, and 17 open with the phrase “everyone has the
rights...” In 11 and 19 “any person” is used instead. Section 20 uses “any member of the public.” These
are probably synonymous and probably include corporations. A number of the rights, however, can‟t
obviously apply to corporations (the right not to be arbitrarily detained, the right to fundamentals of
justice (s. 7) can‟t be enjoyed by a corporation either, for i.e.). Section 24 (remedy) can apply by anyone
(including a corporation), but only those rights that affect corporations.
                                                      53


       A foetus is not entitled to a right to life (under s. 7) or any right. A person is only someone who is
        separated alive from the mother (Tremblay v Daigle 1989).
       Also note that anyone who entered Canada (however illegally), was instantly entitled to assert s. 7
        rights, which apply to “everyone” (Singh v Min of Employment and Immigration 1985).

Individual: Section 15 confers its equality rights on “every individual,” which is more specific (and
probably doesn‟t include a corporation). The listed attributes in the section are also human attributes, not
corporate. Lower courts have held that s. 15 does not extend to corporation while the SCC has avoided
answering the question (Rundolf Wolff & Co; Dywidag Systems).
     Even if s. 15 does not extend to corporations, corporations will still be able to rely on s. 15 as a
        defence to a criminal charge laid under a law that is invalid by virtue of unconstitutional
        discrimination against individuals (Big M Drug Mart).

Citizen: Generally, a person need not be a Canadian to invoke Charter rights.
     “Everyone” in s. 7 has been held to include “every human being who is physically present in
         Canada and by virtue of such presence amenable to Canadian law” (Singh (1985)). This includes
         people in the country illegally (R v A).
Citizenship is a required qualification for some rights (voting [s. 3], mobility rights [s. 6], and minority
language education rights [s. 23]). The best course is for the courts to accept that citizenship is a creature
of federal statute law and that it can be changed from time to time by the federal Parliament, even though
the consequences of any such change is also to change the scope of ss. 3, 6, and 23 of the Charter (Hogg)
(concept came from federal statute – Canadian Citizenship Act 1946). If this is the case, citizenship does
not include corporations.

Permanent resident: The mobility rights of s. 6(2) (not 6(1)), apply, not only to every citizen, but also to
every person who has the status of a permanent resident of Canada. The term “permanent resident” is to
be found in the federal Immigration and Refugee Protection Act.

Who is bound by the Charter?
Both levels of government: The last section discussed who was entitled to the benefit of Charter rights.
This section examines who is bound by the Charter. Section 32(1) expressly states that both levels of
government are bound by the Charter.

Parliament or legislature: Section 32 makes clear that the Charter acts as a limitation on power of the two
legislative bodies.
      Any statute enacted by either Parliament or a Legislature which is inconsistent with the Charter
         will be outside the power (ultra vires) of the enacting body and will be invalid. Parliament means
         the Queen (represented by the GG), senate (upper house – appointed legislative chamber), HOC
         (elected legislative chamber). Legislature means LG, and Legislative Assembly (elected
         chamber).
In NB Broadcasting CO v NS (1993), the SCC held that the word legislative assembly should be
interpreted as making the Charter applicable to a legislative assembly (even when they acted
independently from the LG, which would be less than a full legislature). However, the assembly had the
power to exclude strangers (including television and media). This is based on parliamentary privileges
that are needed to secure the orderly functioning of a legislative assembly (part of the con of Canada).
“What the SCC gave with one hand it took away with the other” (Hogg). Hogg dislikes this judgement:
the fact that a power is conferred by the Con of Canada does not immunize the power from the Charter.
However, Sopinka and Cory JJ pointed out in their opinions in the case that restrictions on the use of
television cameras in order to maintain order and decorum in the legislative assembly would by readily
upheld by the courts under s. 1. What about legislative silence? Is that subject to Charter review? See...
                                                      54


Vriend v Alberta (1998) where a plaintiff alleged he had been dismissed for being gay, and that the
Alberta HR statute was in violation of s. 15 for NOT prohibiting discrimination in employment on the
ground of sexual orientation (the statute was simply silent on this). The SCC upheld the Charter
challenge! As a general rule, the Charter does not impose positive duties. Had the statute only beeen in
relation to discrimination and age, or discrimination and sex, then the challenge would have been struck
down. But because the legislature already enacted a comprehensive statute providing redress for acts of
discrimination, the legislature subjected itself to the Charter, including the obligation to cover everyone
who, under s. 15, had a con right to be included (the statute included grounds of race, sex, religion,
disability, natural origin, marital status, and other ground. But not sexual orientation)!

Statutory authority: 32 not only expressly holds both levels of government to the Charter, but it
follows that anybody exercising statutory authority (G in C, LG in C, minister, officials,
municipalities, admin tribunals, and police officers) is also bound. Action taken under statutory
authority is valid only if it is within the scope of that authority. Since neither Parliament nor a Legislature
can itself pass a law in breach of the Charter, neither body can authorize action which would be in breach
of the Charter. It is the power of compulsion that must confirm to the Charter.
      Where the Parliament or a Legislature has delegated a power of compulsion to a body or person,
         then the Charter will apply to the delegate.
But note that the rules of an organization that are binding on the members simply by virtue of their
consent are not subject to the Charter (Tomen v FWTAO 1989). The Charter has been held to apply to a
municipal by-law, made under statutory authority, which purported to prohibit postering on municipal
public property (Ramsden v Peterborough 1993). In Hogg‟s view, it is the exercise of a power of
compulsion that makes the Charter applicable to bodies exercising statutory authority (however, the
courts have deviated from this proposition (Eldridge v BC, Bhindi and Lavigne). Hogg says these are
wrongly decided).

Government: The references in s. 32 to “government” will make the Charter applicable to
governmental action taken under both kinds of common law powers. La Forest J said in Douglas
College (1990) that “to permit government to pursue policies violating Charter rights by means of
contracts or agreements with other persons or bodies cannot be tolerated.” The SCC has also held that the
Charter applies to expression that takes place on government owned property (airports and streets).
Government includes action taken by the GG in Council or LG in Council, the cabinet, by individual
ministers, and by public servants within the departments of government. Also included are Crown
corporations which, by virtue of a substantial degree of ministerial control, are deemed to be “agents” of
the Crown. Thus, the SCC held (Douglas College) that a community college in BS was subject to the
Charter because it was subject to a substantial degree of government control. The min of education
had power to issue directives to the college and the LG in Council had power to appoint the governing
board. The only useful question is whether government has assumed control of the function.
     The exercise of control is the only sure guide to whether the function is one of government to
        which the Charter should apply.

Courts: Does the Charter apply to the courts? The SCC has answered:
      yes (R v Rahey (1987)) and
      no (Dolphin Delivery (1986)).
In the latter, the Court held that “government” in s. 32 meant only the executive branch of government,
and did not include the judicial branch. A court order was not government action, and therefore the
injunction issued by the SC of BC was not subject to the Charter. In the former, the Charter did apply
when a judge delayed unreasonably in reaching a decision on the application of the defendant for a
directed verdict of acquittal (adjourned 19 times and took 11 months to decide! Involved s.11(b) right to
be tried within a reasonable time). Here, the action that was held to be a breach of the Charter was the
action of a court, and the remedy was directed to a court. Note that the Judges in Rahey didn‟t even refer
                                                      55


to Dolphin Delivery! In the former they said that the courts, as custodians of the principles enshrined in
the Charter must themselves be subject to Charter scrutiny in the admin of their duties. Rahey was
affirmed by BCGEU v BC and is the prevailing position.
      The ratio of Dolphin Delivery must be that a court order, when issued as a resolution of a dispute
        between private parties, and when based on the common law, is not governmental action to which
        the Charter applies.
      However, where a court order is issued on the court’s own motion for a public purpose
        (BCGEU), or in a proceeding to which government is a party (as in any criminal case,
        Rahey), or in a purely private proceedings that is governed by statute law, then the Charter
        will apply to the court order.

Common law: The judges in Dolphin Delivery answered no, the Charter does not apply to the common
law (very related to judges since they make the common law!). The court said that where “private party A
sues private party B relying on the common law, and where no act of government is relied upon to
support the action, the Charter will not apply.” In that case, because the prohibition on secondary
picketing had not been enacted in the Canada Labour Code, it remained a matter of common law (Charter
did not apply). It wouldn‟t make sense for the Charter to apply to all private action (i.e. not letting
Christians into my home is a matter of common law, and shouldn‟t be subject to Charter review).
However, see Hill v Church of Scientology. In the latter, it involved defamation brought against the
Church and their lawyer for bashing a member of the Ontario government. The defendant‟s argued that
the statements referred to their official duties, and thus the Charter applied. The SCC held that the fact did
not supply the element of government action required by s. 32 of the Charter. In the context of a
defamation action, the Plaintiff was a private part, because the action was brought, not as part of his
governmental duties, but to vindicate his personal reputation. Since it was the common law that
government the cause of action, it followed that the Charter did not apply. HOWEVER, although the
Charter did not apply directly to the common law of defamation, it was still necessary to consider whether
the common law was consistent with Charter values and to modify the common law if necessary. Thus,
the Court went on to balance the personal reputation of plaintiffs and the freedom of expression (balance
of competing interests).
     HELD: the common law of defamation complies with the underlying values of the Charter and
         there is no need to amend or alter it. SO, although the Charter does not apply directly to the
         common law, it does apply indirectly.

Private action: It follows from s. 32 that the Charter applies only where there has been governmental
action of some kind, that is, action by the Parliament or government of Canada or by the legislature or
government of a province. The Charter regulates the relations between private persons and government,
but it does NOT regulate the relations between private persons and private persons (Dolphin Delivery).
Private action is therefore excluded from the application of the Charter. An employer restricting an
employee‟s freedom of speech and assembly or a landlord discriminating on the basis of race in his
selection of tenants cannot be breach of the Charter, because in no case is there any action by the
parliament or government of Canada or by the Legislature or government of a province. So, there is no
Charter breach if two independent security guards open a locker and find drugs. But as soon as the police
take over, that is private action now becoming state action, which is subject to the Charter. With regards
to the police, because there was no warrant, it was violation of s. 8 (unreasonable search and seizure) (see
R v Buhay).

Extraterritorial application: Section 32 confines to Charter to the Parliament of Canada and the
provinces; foreign governments are not bound by the Charter. This means that, for example, an accused
person in Canada cannot object to a statement given to American police officers who failed to comply
with the standards of the Canadian Charter (R v Harrer (1995)). Extradition of a Canadian citizen is a
denial of s. 6 of the Charter, but justified under s. 1. Canada can refuse extradition to the US if they don‟t
                                                      56


provide assurances that the death penalty will not be used. Note that it would be a breach of the
fundamental principles of justice under s. 7 if a fugitive (Canadian or not) were to be extradited to a
country where he or she may be treated in a fashion that “shocks the conscious” (Can v Schmidt (1987)).
It Burns (10 years after Kindler), the SCC decided that to extradite criminals to the US without assurances
to the Minister that the death penalty wouldn‟t be invoked was a breach of fundamental justice (s. 7
breach which would shock the conscious of the court). Also, a deportation of a Sri Lankan citizen who
may face torture was not different from extradition in Burns, and would “usually” breach the principles of
fundamental justice (Suresh v Canada 2002). “Usually” was used in case they were a danger to Canadian
public, therefore a balance had to be met between the Canadian public and the safety of the deported.
      In Cook (1998) an American citizen was arrested in the US for a murder committed in Canada.
         When questioned by Canadian police in US, he was denied his right to counsel under the Charter.
         The SCC held that the statement made in the US to Canadian police was inadmissible because it
         violated the Charter!
      Cook was overruled 9 years later by Hape (2007). This involved searches in Turks by Canadian
         officers. The accused was prosecuted in Canada for money laundering. The majority held that the
         Charter applied only to actions taken by Canadian actors inside Canada. Since extraterritorial
         enforcement of Canadian law is not possible, and enforcement is necessary for the Charter to
         apply, extraterritorial application of the Charter is impossible. However, if the police action in the
         foreign state yielded evidence that would make the Canadian trial unfair, then the evidence could
         and should be excluded under ss. 7 and 11(d). A failure to meet Charter standards in the search
         for or seizure of evidence in a foreign country would not by itself make a Canadian trial unfair. In
         Hape, the evidence had been obtained in compliance with Turks law (to which the D had willing
         entrusted his affairs), and its admission did not make the trial in Canada unfair.

Eldridge v BC (AG), [1997] 3 SCR – The Charter applies to provincial legislation in two ways. Firstly,
legislation may be found to be unconstitutional on its face because it violates a Charter right and is not
saved by s. 1. Secondly, the Charter may be infringed, not by the legislation itself, but by the actions of a
delegated decision maker in applying it. The legislation remains valid but a remedy for the
unconstitutional action may be sought pursuant to s. 24(1) of the Charter. Governments, just as they are
not permitted to escape Charter scrutiny by entering into commercial contracts or other “private”
arrangements, should not be allowed to evade their constitutional responsibilities by delegating the
implementation of their policies and programs to private entities. In order for the Charter to apply to a
private entity, it must be found to be implementing a specific governmental policy or program. the
Medical Services Commission, in determining whether a service is a benefit under the Medical and
Health Care Services Act, implements a government policy, namely, to ensure that all residents
receive medically required services without charge. There is no doubt that in exercising this
discretion the Commission acts in governmental capacity and is subject to the Charter.

Greater Van Transportation Authority v Canadian Federation of Students, [2009] SCC - The
appellant transit authorities operate public transportation systems in British Columbia. They refused to
post the respondents‟ political advertisements on the sides of their buses on the basis that their advertising
policies permit commercial but not political advertising on public transit vehicles. The respondents
commenced an action alleging that articles 2, 7 and 9 of the transit authorities‟ policies had violated their
right to freedom of expression guaranteed by s. 2(b) of the Charter.
     Both BC Transit and TransLink are “government” within the meaning of s. 32 of the Charter.
     On the face of the provision, the Charter applies not only to Parliament, the legislatures and the
         government themselves, but also to all matters within the authority of those entities.
     Since the transit authorities are government entities, the Charter applies to all their activities,
         including the operation of the buses they own. The side of a bus is therefore a location where
         expressive activity is protected by s. 2(b) of the Charter.
                                                     57


Finally, the very purpose of the impugned policies is to restrict the content of expression in the
advertising space on the sides of buses. The wording of articles 2 and 7 clearly limits the content of
advertisements. Article 9 is even more precise in excluding political speech. The limits resulting from the
policies are “limits prescribed by law” within the meaning of s. 1 of the Charter. Where a government
policy is authorized by statute and sets out a general norm or standard that is meant to be binding and is
sufficiently accessible and precise, the policy is legislative in nature and constitutes a limit that is
“prescribed by law.” The limits resulting from the policies are not justified under s. 1 of the Charter. The
policies were adopted for the purpose of providing “a safe, welcoming public transit system” and this is a
sufficiently important objective to warrant placing a limit on freedom of expression. However, the limits
on political content imposed by articles 2, 7 and 9 are not rationally connected to the objective. It is
difficult to see how an advertisement on the side of a bus that constitutes political speech might create a
safety risk or an unwelcoming environment for transit users.
      As the transit authorities‟ advertising policies are “law” within the meaning of s. 52(1) of the
         Constitution Act, 1982, they are therefore declared of no force or effect to the extent of their
         inconsistency.

    Override of Rights (Hogg, Chapter 39)
     Con Act 1982 (s. 33)

Section 33 enables the Parliament or Legislature to “override” s. 2 or ss. 7 to 15 of the Charter.
     Through the use of this override power, the Parliament or a Legislature is enabled to enact a
        statute limiting (or abolishing) one or more of the rights or freedoms guaranteed by s. 2 or ss. 7 to
        15.
The one controversial use of s. 33 by the Quebec Liberal government was in Bill C-178 (Act to amend the
Charter of the French Language). This was a response to the SCC decision in Ford v Quebec that a ban
on any language but French on commercial signs was a violation of freedom of expression. A new law
was re-enacted with a notwithstanding clause (same thing, except English could be used in interior signs).
In 1993 when the notwithstanding clause reached its 5 year peak, a new law was en-acted, replacing the
law with a law that only required that French be the predominant language on commercial signs. The
override power has only be used 3 times by other provinces outside Quebec. The Act must also declare
which Charter right is to be overridden to be effective.

Five year limit
Section 33(3) provides that the declaration will automatically expire after 5 years. Section 33(4) permits
the express declaration to be re-enacted, but the re-enacted declaration will also expire at the end of five
years (s. 33(5)). The purpose is to force reconsideration by the Parliament or legislature of each exercise
of the power at 5 year intervals (intervals in which elections will have been held).

Specificity of declaration
The exercise of the override power must be express (this is required and will NOT be inferred).

Retroactive effect
In the Ford case, the SCC had to rule on the validity of Bill 62 (An Act respecting the Con Act 1982)
which was the Quebec statute that purported to insert a standard override clause in every one of Quebec‟s
statutes. It was held to be constitutional, but in one sense it wasn‟t because it attempted to make the
declaration retroactive. The day of enforcement of the Act (June 23 1982) was the appropriate date and
not the date the Charter came into force (April 17, 1982). Section 33 permits prospective derogation
only.
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Judicial review
So, the declaration must
    1. be confined to the rights specified in s. 33;
    2. it must be specific as to the statute that is exempted from the Charter, and as to the right that are
        overridden;
    3. And it may not be given retroactive effect.

Evaluation of s. 33
Is s. 33 incompatible with con guaranteed rights?
      Can you have a meaningful conversation about rights when the principle provisions of the Charter
          can be overcome by the enactment of an ordinary statute containing a notwithstanding
          declaration?
      However, note that (other than Quebec), s. 33 has been used very few times. There would no
          doubt be political backlash and media controversy if s. 33 is used. There probably needs to be
          significant policy grounds to justify its use.
By virtue of s. 33, a judicial decision to strike down a law for breach of s. 2 or ss. 7 to 15 of the Charter is
not final. If the legislative body still wants the law, it can re-enact it by including the notwithstanding
clause contemplated by s. 33.
      The power to override allows for the rare case where the elected representatives are convinced
          that a judicial decision is an inappropriate answer to the rights issue. By that device, citizens are
          able to participate in the policy choices for their political community.

Ford v Quebec (AG), [1988] 2 SCR (733-745) – (commercial signs case) In February 1984, the
respondents sought a declaration from the Superior Court that ss. 58 and 69, and ss. 205 and 208 to the extent
they applied thereto, of the Charter of the French Language were inoperative and of no force of effect.
Section 58 of the Charter of the French Language, replaced by s. 12 of An Act to amend the Charter of the
French Language, S.Q. 1983, c. 56, is protected from the application of s. 2(b) of the Canadian Charter by s.
52 of the amending Act -- proclaimed in force on February 1, 1984. Section 52 is a valid and subsisting
override provision enacted pursuant to s. 33 of the Canadian Charter.


    Limitation of Rights and the Oakes test (Hogg, Chapter 38)
     Con Act 1982 (s. 1)

Full Charter analysis:
    1. Is there government action?
    2. If so, does that action infringe a Charter right in ss. 2-23?
    3. If so, can the party defending the government action establish the infringement is justified under
       section 1?
    4. If not, what is the appropriate remedy under s. 24 of the Charter or s. 52 of the Constitution Act
       1982?

The Charter guarantees the rights and freedoms in it “subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society” (s. 1).
     So, the rights in the Charter are not absolute.
JR of legislation on Charter grounds thus, has two steps.
    (1) The first involves interpretation and application of the provisions of the Charter;
    (2) the second step involves interpretation of s. 1.
In Canada, the courts can point to s. 1 as authorizing the development of limits on the guaranteed rights.
See R v Oakes (1986) where Dickson CJ pointed out that only the values of a free and democratic society
would suffice to limit the guaranteed rights. The underlying values of a free and democratic society both
                                                      59


guarantee the rights in the Charter and, in appropriate circumstances, justify limitations upon those rights.
The section also requires that limits of those rights be “demonstrably justified.” This led Dickson CJ to
stipulate strict rules as to the burden and standard of proof of justification.

Relationship between s. 1 and rights
The Oakes test is a strict one, but Hogg argues that each right should be interpreted as not to reach
behaviour that is outside the purpose of the right (behaviour that is not worthy of constitutional
protection). If that is ignored, the inevitable result will be the erosion of the Oakes standard of
justification (if rights are too widely protected, more legislation inevitably will be upheld). Hogg‟s view is
that the courts should give a purposive (rather than generous) interpretation to the guaranteed rights.
      That approach will help to stem the wasteful floods of litigation, to limit the occasions when
         courts have to review the policy choices of legislative bodies and to introduce meaningful rules to
         the process of Charter review.

Burden of proof
      The burden of proving all elements of the breach of a Charter right rests on the person asserting
         the breach.
      The second stage of Charter review, which is reached only if a Charter right has been infringed, is
         the inquiry into justification under s. 1. At this stage the burden of persuasion shifts to the
         government (or other party) seeking to support the challenged law.
They have to prove that the challenged law is a “reasonable limit” and that it can be demonstrably
justified in a free and democratic society.

Presumption of constitutionality
In federalism JR, a presumption of constitutionality exists; that is, a presumption of constitutionality tilts
the scale in favour of upholding the law that has been enacted by one of the levels of government.
However, in Charter cases there is NO presumption of constitutionality (except for reading down).
The idea that the burden of proof rests on the person asserting the infringement has nothing to do with the
government being given the benefit of the doubt; it has to do with regular rules of civil procedure (the one
who asserts must prove). On the contrary, once a violation has been proven (step 1), it is then up to the
government to prove that the elements of s. 1 justification are present.

Section 1 in detail

“Limits”
Section provides that Charter rights are “subject to such reasonable limits...” There is one SCC case that
decided that any infringement that is more severe than a limit cannot be justified under s. 1 (Quebec
School Board case (1984)). This case dealt with a clause from the Charter of the French Language
(which limited admission to English-language schools in Quebec to the children of persons who had been
educated in English in Quebec). This was inconsistent with 23(1)(b) (Canada clause). After the Court held
that there was an infringement, they refused to partake in a justification process under s. 1. The definition
of the classes of parents entitled to protection was the heart of s. 23 of the Charter. A redefinition of those
classes was not a “limit” contemplated by s. 1. The provisions of the Quebec clause collide directly with
those of s. 23 of the Charter, and are not limits which can be legitimized by s. 1.
      This case dealt with a distinction between “limits,” which can be justified under s. 1 and “denials”
         which cannot be. The Court held that it won‟t use this distinction any further unless in rare cases
         (Ford v Quebec 1988).

“Prescribed by law”
Definition of prescribed by law:
                                                     60


     These words make clear that an act that is not legally authorized can never be justified under s. 1,
        no matter how reasonable it may be.
See Little Sisters Book and Art Emporium v Canada (2000) where customs officials discriminated
against homosexual literature in administering the statutory prohibition on the importation of obscene
materials (it was a breach of s. 15 that could not be justified under s. 1). The customs legislation did not
authorize any distinction between homosexual and heterosexual literature, and therefore the actions of the
customs officials were not prescribed by law. The SCC has held that “law” in s. 1 is not limited to
primary legislation: it is also satisfied by delegated legislation (made under statutory authority), such as
regulations, municipal by laws or rule of a regulatory body.

Discretion: A law that confers discretion on a board or official to act in derogation of a Charter right will
satisfy the prescribed-by-law requirement if the discretion is constrained by legal standards. In Re
Ontario Film and Video Appreciation Society (On CA) (1984) a statute authorizing film censorship
failed the requirement, because the censor board was given an unfettered discretion to ban or cut films
proposed for public exhibition. Had the criteria (which were solely developed by the board itself) been
contained in the statute itself, or in a regulation, the limit on freedom of expression would have been
prescribed by law. In Slaight Communications, Lamer CJ drew a distinction between two types of
statutory conferrals of discretion.
     (1) One type was the statute that expressly or by necessary implication authorized a decision that
         would infringe a Charter right.
     (2) The second type was the statute that conferred discretion in language that was apparently broad
         enough to encompass decisions infringing a Charter right, although the language did not
         expressly or by necessary implication authorize infringements of the Charter. In this case (as in
         Slaight), the broad empowering language should be read down so as not to authorize decisions
         that would infringe the Charter (any decision that did would be ultra vires).

Vagueness: It is a principle of fundamental justice in Canada that a statute is “void for vagueness”
if its prohibitions are not clearly defined. In Irwin Toy v Quebec (1989), a provincial statute that
prohibited “commercial advertising directed at persons under 13 years of age” was challenged. It was
argued that such a vague prohibition could not be a limit on freedom of expression that was prescribed by
law.
      It was stated that a law would fail the prescribed-by-law test only where there is no intelligible
         standard and where the legislature has given a plenary discretion to do whatever seems best in a
         wide set of circumstances. This was not the case here, however, because there were 3 statutory
         factors that would be taken into account to determine whether an advert was “directed” at persons
         under 13 years old. It provided an “intelligible standard” for the application of the prohibition.

Reasonable and demonstrably justified
The requirement of reasonableness may be redundant since a limit that is demonstrably justified must
surely be reasonable. So, we aren‟t talking about two separate things here, but a single standard to be
applied to all laws limiting Charter rights.

Oakes test: In summary, Dickson CJ laid down 4 criteria to be satisfied by a law to qualify as a
reasonable limit that can be demonstrably justified in a free and democratic society:
    1. sufficiently important objective; the law must pursue an objective that is sufficiently important
        to justify limiting a Charter right;
    2. Proportionality
        (a)      rational connection; the law must be rationally connected to the objective;
        (b)      least drastic means, the law must impair the right no more than is necessary to
                 accomplish the objective;
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        (c)      proportionate effect; the law must not have a disproportionately severe effect on the
                 persons to whom it applies.

Sufficiently important objective
Identification of objective : Finding the objective is difficult, since it‟s often unknown (and statute doesn‟t
say). However, courts don‟t seem to have trouble revealing a statute‟s objective, even if there is no
supporting evidence.
      The higher the level of generality at which a legislative objective is expressed, the more
         obviously desirable the objective will appear to be. However, when step 3 is reach, the high level
         of generality will become a problem for the justification of law. If the objective has been stated at
         a high level of generality, it will be easy to think of other ways in which the wide objective could
         be accomplished with less interference with the Charter right.
Andrews v Law Society of BC (a law that imposed a requirement of Canadian citizenship for admission
to the legal profession of BC). The Court were unanimous that in infringed the Charter, but divided on
whether it could be justified. Did the objective have a high level of generality (restricted entry to those
qualified to practice law) or low level of generality (to restrict people who are only Canadian citizens)?
The Court ultimately held it could not be justified. Always note that the statement of the objective should
supply a reason for infringing the Charter right.
      Remember, the only reason for embarking on the search for the legislative objective is to
         determine whether there is a sufficient justification for an infringement of the Charter.
See RJR-MacDonald v Canada (1995) where there was a ban on advertising tobacco. There was a
breach of freedom of expression. The objective could not have been protection of public health (since it
wasn‟t a ban on the product itself). That way of looking at the objective would have been too broad
because it did not focus on the reason for infringing the Charter. The “objective that is relevant to the s. 1
analysis is the objective of the infringing measure” (McLachlin J). On that basis, the objective of the
advertising ban must be to prevent people in Canada from being persuaded by advertising and promotion
to use tobacco products. This was a narrower and less significant objective, but it was still an
objective of sufficient importance to justify overriding the right to free expression. However, the law
failed the least drastic means test, because the total ban encompassed purely informational and brand-
recognition advertising that played no role in persuading people to use tobacco products. The law was
therefore struck down.

Importance of objective: When does an objective achieve the appropriate degree of importance?
   1. Only objectives that are consistent with the values of a free and democratic society will qualify.
   2. Dickson CJ said that the objective must “relate to concerns that are pressing and substantial,
       rather than merely trivial.
   3. The objective must be directed to “the realization of collective goals of fundamental importance.”

See AG of Quebec v Ford (1988) where the Court was faced with a Quebec law that banned English to
be used on public signs. The Court recognized the vulnerable position of the French-language in Quebec,
and recognized that the protection and enhancement of the language was a sufficiently important
objective to justify a limit on freedom of expression. The law was struck down, not because of any doubt
as to the legitimacy of the purpose (objective), but because the banning of English was a disproportionate
impairment of the rights of English-speakers. The “distinct society” clause is ultimately was prevented the
Meech Lake amendments, but doesn‟t the court in Ford take account of Quebec‟s distinctiveness despite
there not being a con requirement to do so?

Inadmissible objects: Dickson CJ made it clear that a legislative objective would not count as justification
if it was not sufficiently important to override a Charter right.
       There has only been one case where the SCC rejected a legislative objective.
                                                     62


See R v Big M Drug Mart (1985) that involved the Lord‟s Day Act. The purpose was to compel the
observance of the Christian Sabbath. That was a purpose that was directly contradictory of the Charter
right, and could not be a purpose that justified limiting the right. However, the secular objective of
providing a common day of rest for workers in the province was justified pursuant to s. 1 (R v Edwards
Books and Art 1986). Three rules emerge from Big M:
    1. objective cannot provide the basis for s. 1 justification if the objective is incompatible with the
         values entrenched by the Charter;
    2. Objective cannot provide the basis for s. 1 justification if the objective is ultra vires the enacting
         legislative body on federal distribution of powers grounds;
    3. The rule against shifting objectives –In R v Zundel (1992), McLachlin J (for the majority) held
         that to convert the false news law into a provision directed at encouraging racial harmony is to go
         beyond any permissible shift in emphasis. She applied the rule against shifting objectives to hold
         that the modern objective could not be attributed to the law. At issue here was the CC offence of
         spreading false news (limit of freedom of expression). The original objective was to protect “the
         great men of the realm” from malicious lies. However, the law had been used to prosecute
         someone who made Holocaust denial literature. The law was struck down.

Cost: See Singh v Min of Employment and Immigration (1984) where the question was whether an oral
hearing by a body with decision-making power had to be afforded to every person who arrived at
Canada‟s borders and claimed to be a refugee. Would it impose an unreasonable burden on the resources
of the government? See Wilson J who stated that “certainly the guarantees of the charter would be
illusory if they could be ignored because it was administratively convenient to do so.”
      In only one case has the SCC accepted that the saving of government money is a sufficiently
         important objective to justify a limit on a Charter right (Newfoundland v NAPE 2004).
Agreement was made to raise female hospital workers‟ wage. A new Act was passed delaying the original
agreement by 3 years. The program didn‟t act retrospectively, so the 3 year delay erased money that
would have owed by the government (government saved 24 million). The workers sued for the pay –
equity adjustment, arguing that the Act was unconstitutional. The SCC held that the Act violated s. 15 of
the Charter, but was saved under s. 1. The financial crisis of the province supplied a sufficiently important
objective to justify the limit on the female workers‟ equality rights. The equality rights of the workers
were denied, but the province was in financial crisis.

Rational connection (first element of proportionality)
Is the law rationally connected to the objective of the law? In Oakes itself, the law failed based on the
rational connection requirement. In the case, proof of possession led to a presumption of trafficking.
Thus, the accused has to then prove he was not in possession for the purpose of trafficking. The SCC held
that this reverse onus clause was a violation of 11(d). The second part was to see if the reverse onus could
be justified under s. 1.
      The Court agreed that the objective of the reverse onus (to protect society from drug trafficking)
         was sufficiently important to justify limiting a Charter right.
      However, it failed the rational connection test. There must be a “rational connection between the
         basic fact of possession and the presumed fact of possession for the purpose of trafficking.”
         Possession of a small or negligible quantity of narcotics does not support the inference of
         trafficking.
Thus, the reverse onus was unconstitutional. Benner v Canada, which also failed the rational connection
test. A citizenship act made it more difficult for someone to gain Canadian citizenship who was born to a
Canadian mother than to a father (if mother, security check was required, but not if your father was
Canadian!).
      The SCC assumed that the screening out of dangerous persons was an important objective,
      but the Court held that there was no rational connection between the objective and the
         discrimination.
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There was also no rational connection between the law banning political messages on the side of buses in
GVTA v Canadain Federation of Students (2009) and the objective of a safe, welcoming transit
system. The political character of a message had no bearing on whether the message created an
unwelcoming environment for transit users, and therefore there was no rational connection between the
objective and the law banning political messages.

Causation: The essence of rational connection is a causal relationship between the objective of the
law and the measures enacted by the law.

Least drastic means (second element of proportionality)
Minimum impairment: This is the 3rd step in the Oakes tests of justification of a law that limits a Charter
right. The law should impair as little as possible the right or freedom in question. The law should pursue
the objective by the least drastic means.
      It can also be called the minimum impairment test, because it insists that the limit on the Charter
         right be the minimum that is necessary to accomplish the desired objective.
This has turned out to be the heart and soul of s. 1 justification. This 3rd step is where most of the
debate rests.
      Quebec‟s prohibition of the use of English in commercial signs has been held to be too drastic a
         means of protecting the French language (Ford),
      A federal ban on all advertising of tobacco products has been held to be too drastic a means of
         curtailing the consumption of tobacco (RJR MacDonald)
In these cases (and more), the SCC held that other laws were available to the enacting legislative body
which would still accomplish the desired objective but which would impair the Charter right less than the
law that was enacted.

Margin of appreciation: A judge could probably always think of a way a law could be less drastic and
restrictive. This is also the case if they are indifferent to costs.
      So, if s. 1 is to offer any real prospect of justification, the judges have to pay some degree of
         deference to legislative choices.
      Also, judges have to allow to provincial legislatures a “margin of appreciation,” a zone of
         discretion within which different legislative choices in derogation of a Charter right could be
         tolerated.
The majority in Edwards Books recognized a margin of appreciation, which would tolerate a variety of
different Sunday-closing laws. The cases after Edwards Books have applied the requirement in a flexible
fashion, looking for a reasonable legislative effort to minimize the infringement of the Charter right,
rather than insisting that ONLY the least possible infringement could survive. In Canadian Newspapers
Co v AG of Canada (1988), the Court upheld a CC provision authorizing a court order banning the
disclosure of the identity of the complainant in a case of sexual assault. It was argued that a discretionary
ban would be a less severe limit on freedom of the press, but the mandatory ban was held to serve the
purpose of fostering complaints by victims of sexual assault.

Proportionate effect (third element of proportionality)
This (last) step requires 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.” Dickson rephrased in Edwards Books and Art by saying that the effects of the limiting
measures...
      “must not so severely trench on individual or group rights that the legislative objective, albeit
         important, is nevertheless outweighed by the abridgement of rights.
      This step asks whether the Charter the Charter infringement is too high a price to pay for
         the benefit of the law.
                                                      64


McLachlin CJ in Alberta v Hutterian Brethren of Wilson Colony (2009) considered Hogg‟s argument but
rejected it (that the 4th step is meaningless). She explained that the first 3 stages of Oakes are anchored in
an assessment of the law‟s purpose. Only the 4th branch takes full account of the „severity of the
deleterious effects of a measure on individuals or groups.” Thus, a legislative objective may, in principle,
be sufficiently important to justify limiting the claimants‟ right (step 1) but the least drastic means of
accomplishing the objective may still have too drastic an effect on the claimants‟ rights for the law to be a
reasonable limit under s. 1 (step 4).

Application to qualified rights
Scope of s. 7: This is the right to life, liberty and security of the person, except in accordance with the
principles of fundamental justice. It is clear that the rights here can be limited by a law that conforms to
the principles of fundamental justice. But does s. 1 permit other limits?
      Could a law that violated the principles of fundamental justice still be upheld under s. 1 as
          reasonable limits prescribed by law that could be demonstrably justified in a free and democratic
          society?
Lamer J in BC Motor Vehicle Reference (1985) said yes, but only in cases arising out of exceptional
conditions such as natural disasters (obiter). Wilson J took the opposite view and said that a law that
violated the principles of fundamental justice could never be either “reasonable” or “demonstrably
justified” in a free and democratic society. The SCC has usually applied s 1 before holding that a breach
of s. 7 invalidated a law, but the s. 1 justification has been upheld in minority opinions (never by a
majority).

Section 8: This guarantees the right to be secure against unreasonable search and seizure. Could an
unreasonable search under s. 8 be justified as reasonable within s 1? Although the words are the same, the
tests they require are different. In principle, it is possible to imagine a law that fails the narrow test of
reasonableness in s. 8 but passes the broader test of reasonableness in s.1.

Section 9: This is the right not to be arbitrarily detained or imprisoned. Can an arbitrary detention be
reasonable and demonstrably justified? In R v Hufsky (1988) the Court decided on a spot-check program
by police for drunkenness. A driver stopped by police under the program had been arbitrarily detained in
breach of s. 9 but the Court held that the procedure was justified under s. 1.

Section 12: Hogg argues that this is probably the only absolute right. It is very difficult to accept that the
right not to be subjected to any cruel and unusual treatment or punishment could ever be justifiably
limited

Application to common law
It is hard to apply the various tests to a rule of the common law, where there is no specific enactment that
can be examined in terms of objective, rational connection, least drastic means and proportionate effect.
While a rule of statute law that violated the Charter would have to be struck down, a rule of the common
law could be amended by the Court itself. In Hill v Church of Scientology (1995) (defamation case), it
was held that the traditional s. 1 analysis in cases where the Charter was not directly applicable was not
appropriate. Instead, there should be a more flexible balancing of the competing values, and the onus
rested with the Charter claimant to persuade the Court that the common law should be modified (per Cory
J).

    Freedom of Conscience and religion (Hogg, Chapter 42)
     Con Act 1982 (s. 2(a))

Who has power to enact laws in relation to religion? The Sunday shopping cases show that it is a federal
head since it was interpreted as a criminal law (prohibition coupled with a penalty). However, 92(12)
                                                      65


expressly allocates to the provinces the power over the solemnization of marriages and 93(3) makes clear
that provinces have power over education, which extends to the establishment of denominational schools.
Dickson J in Edwards Books said that “the con does not contemplate religion as a discrete con “matter”
falling exclusively within either a federal or provincial class of subjects.” So, it depends on the other
characteristics of the law.
      Since the Charter, any law that affects freedom of religion will be vulnerable to challenge under s.
         2(a).

Section 2(a) of the Charter
This section guarantees to everyone the fundamental freedom of conscience and religion. It is, of course,
subject to s. 1. The conscience part protects systems of belief which might not be characterized as
religions.
      The leading case on freedom of religion is Big M Drug Mart (1985) (SCC struck down the
         Lord‟s Day Act which prevented commercial activity on Sunday). The purpose (to compel
         observance of the Christian Sabbath) was an infringement of the freedom of religion of non-
         Christians. Dickson J‟s statement makes clear that s. 2(a) protects religious practices as well as
         religious beliefs.
Big M was an easy case since there was legislative history on the purpose of the Act. Edwards Books
was a harder case. The Ontario Act in this case also prohibited retail stores from opening on Sunday, but
the purpose was a secular one of providing a common day of pause for retail workers.
      It nonetheless infringed 2(a) because its effect was to impose economic burden on those retailers
         who observed a Sabbath on a day other than Sunday! The effect created a “competitive pressure”
         to abandon a non-Sunday Sabbath, which was an abridgement of freedom of religion (however, it
         was upheld under s. 1).
It was an important purpose, but was it the least drastic means? The Act did contain a “sabbatarian
exemption” for retailers who closed their stores on Saturdays, but the exemption was hedged with a size
restriction that made it applicable only to small stores. The Court was satisfied that this satisfied the least
drastic means, but Wilson J dissented, arguing that the size restriction should have been taken out of the
clause. The Act was later amended and the size restriction was taken out. As Peel (1991) shows, after that
the Act didn‟t even fall foul of s. 2(a) anymore (so, no s. 1 analysis was even needed).

Other religious practices
The Sunday cases shows that under 2(a), there is a con obligation to accommodate those persons whose
religion calls for observance of a Sabbath on a day other than Sunday.
      In Big M, Dickson J said that freedom of religion included the right to manifest religious belief
         by worship and practice. However, he noted that such manifestations cannot injure his or her
         neighbours or their parallel rights to hold and manifest beliefs and opinions of their own.
B (R) v Children’s Aid Society (1995) was a Jehovah Witness blood transfusion case. Under Ontario‟s
child welfare statute, the child was made a temporary ward of the Children‟s Aid Society, and the
transfusion was consented to by them. The parents challenged the procedure as a violation to freedom of
religion. The majority held that it was a violation, but was justified under s. 1. Thus, there were intrinsic
limits on freedom of religion. In Ross v NB School District No. 15 (1996) a teacher was making public
anti-Semitic remarks (outside of the classroom). He described them as honest religious beliefs. This
activity was protected by freedom of religion. He was removed from his teaching position by a board
under NB‟s human rights statute. Most of the order was justified under s. 1, but s. 1 did not justify a
removal of Ross from his non-teaching position if he resumed his anti-Semitic activity. This part of
the order was unconstitutional.
      Religious freedoms were extended in Syndicat Northwest v Amselem (2004) where the
         claimants violated by-laws by building a dwelling on their condo balcony for a 9 day Jewish
         festival. The SCC held that the claimants were entitled to erect their succahs in defiance of the
                                                     66


         by-laws (the Charter didn‟t actually apply to the by-laws as private contracts, but Quebec‟s
         statutory Charter did).
Iacibucci J even held that a belief system could be unique to the claimant! Thus, the majority defined
religious protection here very broadly. It just had to be a “sincere” belief. Even a prohibition in schools
of a small religious blade (dagger) was a violation of a Sikhs‟ boy‟s 2(a) right (Multani v Commission
scolaire Marguerite-Bourgeoys 2006). All weapons were prohibited by the school board regulation
(statutorily authorized code of conduct). Turning to s. 1, the law failed the least drastic means requirement
by banning ALL weapons (was too broad). The Court simply ordered that the blade be kept in a wooden
sheath and sewn into the student‟s clothing.

Using religious practice to waive contractual obligations
It is an extraordinary doctrine that permits a contracting party to invoke a sincere religious belief as the
basis for ignoring a contractual promise that the promisor freely made but no longer wishes to keep (as in
Syndicat Northwest v Amselem).
      Thus, the SCC held that a party to a contract could invoke freedom of religion to resile from a
          contractual obligation (in this case, a promise not to build structures on the balconies of condos
          owned by the claimants). Bennie J emphatically dissented, saying that they chose to buy THIS
          building and to abide by the rules of THIS building.
But note Bruker v Marcovitz (2007) where there was a contractual agreement between a divorced
Jewish couple that the husband get a “get” (which would end the divorce in the Jewish faith and free the
female). The husband refused for 15 years and did so only when the wife brought an action for breach of
contract. Since Amselem, he argued freedom of religion. SCC rejected this and awarded damages for
breach of contract against the husband.

Religion in public schools
In Zylbergerg v Sudbury Board of Education (1988) a challenge was brought to an Ontario regulation,
made under statutory authority that required public schools to open or close each school day with
religious readings.
      The regulation was held to be unconstitutional, because it imposed Christian observances upon
        non-Christian pupils and religious observances on non-believers. The regulation was not saved by
        the pupil‟s right to be exempted from the religious exercises. The regulation exerted an indirect
        coercion on pupils to participate.
In Canadian Civil Liberties Association v Ontario (1990) another regulation was struck down that
required two periods per week of religious education (which as student could be opted out of). It was
directed at Christian belief oppose to multiple beliefs. It was held to be unconstitutional for the same
reasons as Zylbergerg.
      These cases show that the embarrassment of non-conformity did operate as a significant
        practical barrier to the exercise by minority children. It means that programs of religious
        exercises or instruction in public schools will normally violate the guarantee of freedom of
        religion.
      What would not violate the guarantee is a course on religion that examined various religions in a
        neutral way (not promoting anyone religion or assuming the superiority of any one religion).

Denominational schools
It goes without saying that private schools may offer religious exercises and instruction. The SCC has
implied that s. 2(a) requires a province to permit children to be educated outside the secular public system
(R v Jones). In Canada, systems of state aid to minority Protestant and Catholic schools have existed
since confederation and are actually guaranteed by s. 93 of the Con Act 1867.
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Religious marriage
In all Canadian provinces, under provincial law, marriages may be solemnized in civil or religious
ceremonies. A civil marriage MUST be provided for all persons who want to get married and have the
capacity to marry.
     However, religious ceremonies can be denied by a church, synagogue, or mosque. A church may,
         for example, that does not recognize divorce may refuse to marry divorced persons.
In Same-sex Marriage Reference (2004), the SCC was asked if Parliament could enact a bill legalizing
same-sex marriage for civil purposes. The Court held that Parliament could do so under its power over
“marriage” in s. 91(26) on the Con Act 1867. A clause in the Act that said the Act didn‟t affect a religious
officials right to refuse marriage was ultra vires because the solemnization of marriage was a province
matter (92(12)). Nonetheless, 2(a) of the Charter protected what the clause meant to.

    Freedom of Expression (Hogg, Chapter 43)
     Con Act 1982 (s. 2(b)).

Political speech may be a distinct matter that is assigned exclusively to the federal Parliament. Other
kinds of speech are distributed between the two levels of government by reference to the facility or
activity wherein the speech is regulated. Commercial advertising is generally within provincial
jurisdiction as an incident of the sale of goods or services in the province; but advertising in a federally
regulated medium (such as radio or television) is within federal jurisdiction.

Political speech – story begins with Alberta Press case (1938) where the SCC struck down an Alberta
statute that compelled newspapers in Alberta to publish a government reply to any criticism of provincial
government policies. It could not be regarded as a local or private matter (or a civil right in the province),
thus, it was within the exclusive power of the federal Parliament.

Provincial power – the provincial power over speech, while it will not extend to the regulation or
prohibition of political ideas, does authorize the regulation of speech on commercial or local grounds. The
tort of defamation is provincial (torts within provincial power 92(13)). Advertising is also with provincial
jurisdiction because it is part of the regulation of business and of consumer protection that is within
provincial power (92(13)). McNeil and Dupond (pre-Charter cases) establish an extensive provincial
power to regulate speech or assembly in local parks and streets, and to regulate speech in the media that
come within provincial jurisdiction including films, live theatre, etc.

Federal power – The federal Parliament has the power to regulate political speech. They also have the
power to make particular kinds of speech criminal (fraud, obscenity, hate propaganda, communicating for
the purpose of prostitution). Feds also have the power to regulate speech in the media that come within
federal jurisdiction (radio and TV).

Section 2(b) of the Charter
This right guarantees freedom of thought, belief, opinion and expression, including freedom of the press
and other media communications (subject to s. 1). In most cases it is easy to see that the impugned law
does limit 2(b), thus, the Charter review will turn on s. 1 analysis.
     A very broad notion of freedom of expression was accepted in Irwin Toy (1989) by Dickson CJ
         when he went over the reasons for the right
    1. seeking and attaining truth is good,
    2. Participation in social and political decision-making is to be fostered and encouraged,
    3. Diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated.
This third element is broad. See R v Sharpe (2001) where it was held that child pornography was
protected under 2(b) because of its role as an instrument of personal fulfillment!! However, the court was
unanimous that the CC offence was justified under s. 1.
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Meaning of expression
Defining expression – the Court has held that “activity is expression if it attempts to convey meaning”
(Prostitution Reference 1990). There doesn’t seem to be much that is NOT expression under the
Court’s definition. All forms of art are expression (Irwin Toy). A requirement that commercial signs be
in French only is a violation of free expression (Ford). Even parking your car could be expression if there
was an expressive purpose, and parking to protest parking regulations had a sufficiently expressive
purpose (Irwin Toy 1990)!

Criminal expression – In the Prostitution Reference (1990) the Court held that communicating for the
purpose of prostitution (offence under CC) was protected expression under s. 2(b) (law upheld under s. 1,
however). Lamer J said certain activities should not be denied s. 2(b) protection solely because they are
crimes in the CC. Even publishing hate propaganda and false news is protected under s. 2(b) (Keegstra
1990 and Zundel 1992). The hate propaganda was upheld under s. 1. So long as the activity is
communicative and falls short of the direct infliction of violence, it is protected by s. 2(b). Thus,
expressive activity that takes the form of violence is not protected by s. 2(b) (R v Lucas 1998). Even
threats of violence are protected (R v Keegstra).

Content neutrality – Content neutrality is the governing principle of the SCC‟s definition of expression.
      That is, the content of a statement cannot deprive it of the protection accorded by s. 2(b), no
         matter how offensive (Keegstra).
In that case, promotion of hatred against the Jews or another racial group (CC offence) is protected. Here,
however, it could be justified (4/3 split). False news provision in the CC was struck down by the SCC as
unconstitutional (here it was a pamphlet denying the Holocaust) (see Zundel). Zundel was acquitted and
continued to distribute deliberate falsehoods under the protection of the con.

Ways of limiting expression
Prior restraint – this is a law that prohibits the publication of particular material either absolutely or
under a requirement of prior approval by a censor. This includes censoring films, restrictions on access to
the courts and the reporting of judicial proceedings, a prohibition on the publication of public opinion
polls in the final three days of an election campaign, etc.
     These are all prohibited by s. 2(b), and a number of prior restraints have been upheld under s. 1.

Border control – an important kind of prior restraint is the prohibition on the importation of pornographic
books and magazines (customs officials serve as the censors). In R v Butler (1992) the SCC held that the
definition of “obscene” in the CC was sufficiently clear (whereas “immoral or indecent” was too vague
beforehand and not justified under s. 1).
     The criminal offence was a valid limitation of freedom of expression under s. 1.

Language requirement – In Ford, the Court held that freedom of expression included the freedom to
express oneself in the language of one‟s choice (exclusive use of French was unconstitutional). The
Quebec law didn‟t restrict the content of signs or adverts, provided the message was in French only.

Time, manner and place – this is the least severe form of restriction on expression. For example, a law
might prohibit the use of cartoons in advertising directed at children, or a law might authorize a public
official to stipulate the time and route of a parade (R v Spratt 2008). These laws restrict expression, and
are therefore in violation of s. 2(b), but because they do not regulate the content of expression, a court
would be likely to uphold the law under s. 1.
                                                     69


Commercial expression
This is expression that is designed to promote the sale of goods and services (advertising is the most
important example). It is, in all jurisdictions, subject to a lot of regulation.
      In Canada, the balancing of the value of free expression against the value of consumer protection
         has to take place within s. 1 of the Charter.
The SCC has held from the beginning that commercial expression is protected by the guarantee of
freedom of expression in s. 2(b) (Ford). It held, of course, that the language-of-signs law violated s. 2(b)
by prohibiting signs in the English language. It could not be justified under s. 1 (protection of French was
important purpose, but impaired English rights more than necessary). A complete prohibition went too
far.

Advertising restrictions – See Irwin Toy (1989) where the Court upheld a Quebec law that prohibited all
commercial advertising directed at children under 13.
     As in Ford, advertising was protected by 2(b), however the court was divided on justification (a
        majority upheld the ban, stating that Quebec should be given some leeway to protect such a
        vulnerable group, which was an important purpose.
Under Ontario legislation, dentists were prohibited from advertising (Rocket v Royal College of Dental
Surgeons 1990). The SCC was unanimous that this was a violation of 2(b). Under s. 1, maintaining a
high standard of professionalism was a justifiable purpose, but it went too far than was necessary to
achieve its purpose. The regulation was struck down.

Signs – See Ford, which was the SCC‟s first commercial speech case. In R v Guignard (2002), a
municipal by-law in Quebec prohibited advertising of signs and billboards except in industrial zones of
the municipality. A man put a sign up complaining about an insurance company, since he listed the
insurance company name on the sign, it was considered advertising. The by-law violated his freedom of
expression. The law was not a reasonable solution and disproportionate to any benefit that it secures for
the municipality. The court gave the municipality 6 months to revise the statute, which suggests they were
willing to entertain some restrictions.

Picketing
Picketing is the activity of members of a trade union on strike, who will assemble outside a workplace,
often carrying signs (encourages boycotts, advertise the strike, and dissuade strike-breakers from entering
the workplace).
     There is a communicative element here, and thus constitutes expression within 2(b) (Dolphin
         Delivery 1986). It doesn‟t matter if it‟s commercial or political, both are protected.
An injunction to stop picketing outside a courthouse was upheld by the SCC in Vancouver Courthouse
case (1988). The Charter applied to an injunction to prevent a criminal contempt of court, and was thus a
limit on freedom of expression (however, justified by s. 1). Assuring unimpeded access to the courts was
a sufficiently important objective.

Hate propaganda
This is prohibited in the CC, which was challenged in R v Keegstra (1990). The SCC held that 2(b)
covered ALL messages, however unpopular, distasteful, or contrary to the mainstream. They also rejected
that 2(b) could be narrowed by s. 15(equality) so as to not even have to go to s.1. The Court upheld the
law under s. 1, but only to a 4/3 split. Also see R v Zundel (above – false news case, offence was struck
down as unconstitutional). Note the difference between the two cases, Keegstra was specific, Zundel dealt
with an old law that was aimed at protecting the “great men of the realm.” In the latter, the Courts
weren’t willing to reinterpret the statute as pertaining to racial harmony.
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Defamation
The tort of defamation provides a civil remedy for a person whose reputation has been damages by false
statements made by the defendant (so, freedom of expression here is abridged). See the case of Hill v
Church of Scientology (1995) where Hill, the Plaintiff, was a prosecutor. The Church and their lawyer
held a press conference making allegations against Hill. Hill used the Church and its lawyer for
defamation and got 1.6 million in damages.
      The Court held that the Charter did not directly apply to the proceedings (despite Hill‟s public
        position), but that the common law should be reviewed, and modified if necessary, to make it
        consistent with Charter values. The Court held that the common law of defamation was consistent
        with Charter values, and did not need to be modified (per Cory J for the majority).

Pornography
The expression cases in the SCC make clear that porn, including obscenity, is protected expression in
Canada.
      Since there is no content based restrictions on 2(b), it follows that porn is covered by the
         guarantee.
In R v Bulter (1992), the accused, which operated a sex shop, was in violation of CC offences relating to
selling and possession obscene material. Although the offence violated 2(b), it was justified under s. 1.
Sopinka J held that a portrayal of persons being subjected to degrading or dehumanizing sexual treatment
results in harm, particularly to women and therefore to society as a whole. “There is an appreciable risk of
harm to society in the portrayal of such material.” That is, there was a “reasoned apprehension of harm.”
This didn‟t mean that it wasn‟t protected under 2(b). Also see Little Sisters Book and Art Emporium
(above – border control, gay and lesbian bookstore in Van). The law was upheld here as well since the
definition of “obscene” in the CC was indifferent to whether the harm occurred in the context of
heterosexuality or homosexuality.
      Always note that the power of censorship (prior restraint) is the most severe kind of limit on
         freedom of expression (many provinces confer on the board a power of censorship). See R v
         Sharpe (2001 above, child porn law challenged). This was even protected by 2(b)! Although there
         was no proof that possession contributed to the market for child porn etc, the Court followed
         Butler to hold there was a “reasoned apprehension of harm,” and that was enough.

Access to public property
It is clear that 2(b) confers no right to use private property as a forum of expression (Committee for
Commonwealth Of Canada 1991).
      With respect to public property, since the Charter applies to government action, s. 2(b) is
          potentially applicable.
This was the case when the manager of the Crown owned airport tried to prohibit distribution of political
leaflets. The SCC held that the prohibition was unconstitutional. The government did not possess the
absolute power of a private owner to control access to and use of public property. In this case, because the
distribution of political leaflets was compatible with the airport‟s function of serving the travelling public,
Lamer CJ concluded that the plaintiff‟s had a con right to carry out the practice. Heureux-Dube and
McLachlin JJ, although agreeing, had a wider test for 2(b) which they thought conferred a right to use
ALL government property for purposes of expression.

In Ramsden v Peterborough 1993 there was a by-law that prohibited postering on any public property
within the municipality. The defendant was in breach while postering a pole for a concert. He argued the
by-law was unconstitutional. Iacobucci J held that postering was protected by 2(b).
     As for s. 1, a complete ban on postering on all public property was broader than necessary to
        accomplish the objectives (failed least drastic means requirement, thus the by-law was
        unconstitutional).
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The test established in Montreal v 2952-1366 Quebec (2005) for the application of s 2(b) on public
property was: whether the place is a public place where one would expect con protection for free
expression on the basis that expression in that place does not conflict with the purposes which s. 2(b) is
intended to serve, namely
    1. democratic discourse,
    2. truth-finding and
    3. Self fulfillment.
This test was applied in the Greater Van Transportation Authority case (2009 – posters on buses).

Access to courts
Fair trial concerns – freedom of the press occasionally comes into conflict with the right of persons
accused of crime to receive a fair trial.
     For i.e. pre-trial publicity may bias potential jurors or judges, and may damage the reputation of
         someone subsequently exonerated of the charge.
Freedom of the press includes the freedom to public reports of proceedings in court. The courts must be
open to public scrutiny and to public criticism of their operation by the public (Edmonton Journal 1989).
In Canadian Newspaper Co v Canada (1988) the CC made a provision for a court order prohibiting the
media from disclosing the identity of the complainant in a case of sexual assault. This was a mandatory
order if requested by the prosecution or complainant.
     Although it limited freedom of the press (2(b)), it was justified under s. 1.
In Toronto Star Newspapers v Ontario (2005), the SCC again affirmed the rule that court proceedings
were to be “open” unless “disclosure” would subvert the ends of justice or unduly impair its proper
administration. Once a search warrant is executed, the warrant and the information on which it was issued
must be made available to the public unless an applicant seeking a sealing order can demonstrate that
public access would subvert the ends of justice (so, 2(b) applies to pre-trail phases as well).
     The sealing order was quashed, except the identity of the confidential informant was edited out of
         the warrant.

    Life, Liberty, and Security of the Person (Hogg, Chapter 47)
     Con Act 1982 (s. 7 – right to life, liberty and security of the person and to not be deprived of
        except in accordance with the principles of fundamental justice)

If the law is in relation to criminal law or criminal procedure, it will be within federal power under s.
91(27) of the Con Act 1867. The various stages of a criminal trial from arrest and charge through to
acquittal or conviction and sentence are accordingly within federal legislative authority. Provinces may
have investigative schemes for various regulations (i.e. securities).
      There is no breach of s. 7 unless there has been a failure to comply with the principles of
         fundamental justice. This right does not relate to property or economic interests.
So, a law can deprive a person of life etc, if the law conforms to the principles of fundamental
justice. A violation of fundamental justice could NEVER be justified under s. 1 (per Wilson J).
However, note that some judges have moved on to the question of s. 1 anyway, and some judges (but
never a majority) have held a particular breach of s. 7 was justified under s. 1.

Benefit
    Note that section 7 does NOT include a corporation. A corporation can, however, still invoke s. 7
        to show the law is invalid as it relates to an individual (R v Wholesale Travel Group 1991).
    “Everyone” even includes illegal immigrants to Canada (Singh v Min of Employment and
        Immigration 1985). Thus, any illegal immigrant who claimed to be a refugee was entitled to a
        hearing before an official or tribunal with authority to determine the issue.
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       “Everyone” does not include a foetus; however, a mother can invoke s. 7 on abortion restrictions
        (R v Morgentaler (No 2) (1988)).

Liberty
Liberty certainly includes freedom from physical restraint. Any term of imprisonment is a deprivation
of liberty, and must conform to the principles of fundamental justice (fines do not count, but fingerprints,
production of documents, oral testimony and no loitering near school grounds (R v Heywood), park and
bathing areas is such a deprivation). See Cunningham v Canada (1993 – change in terms of sentence
can be a deprivation) where a man who was sentenced to 12 years was eligible to be released
conditionally after 2. The Parole Act was amended before 2/3s of his sentence to allow authorities to keep
him for the full 12 years if they believed he was a threat. This change in the law should be treated as the
deprivation of a liberty interest, making s. 7 potentially applicable. However, the change in law was not a
breach of the principles of fundamental justice (D remained in prison).
      So, once section 7 applies, it has to observe the principles of fundamental justice.
Bastarache J, speaking for the majority in Blencoe v BC (2000) stated that s. 7 no long ONLY applies
freedom from physical restraint (now applies when the law prevents a person from making fundamental
personal choices). This case dealt with the HR Commission not dealing with a sexual harassment
complaint fast enough. They were given no remedy ultimately, but the statements were made.
      As noted above, economic liberty does not apply to s. 7 (Prostitution Reference 1990). Liberty
         also does NOT include political liberty (this is covered elsewhere in the Charter).

Security of the person
The easy case is Canadian Foundation for Children, Youth and the Law v Canada (2004) where
there was a defence to criminal assault for teachers and children (defence in CC, which was challenged).
      These provisions adversely affected the security of the person of the children to whom it applied
         (however, it was upheld on the ground that there was no breach of principles of fundamental
         justice).
In R v Morgentaler (no 2) (1988) a law that required women to get approval for abortion was held to be
unconstitutional because it created delays and further risks to health. A majority held that the risk to
health that was caused by the law was a deprivation of security of the person. The breach of fundamental
justice arose from the restrictive procedural requirements.
      Security of the person also includes control over one‟s body (Rodriguez v BC 1993). A
         terminally ill person challenged the CC offence of assisted suicide. Suicide was not an offence,
         but she couldn‟t commit suicide without medical assistance (she was too disabled). The aspect of
         the control of her body was a deprivation of liberty under s. 7. However, 5 of the 9 judges held
         the law did not offend the principles of fundamental justice.
Also know that state removal of children from a parent is a breach of the parents‟ security of the person (it
would constitute a serious interference with the psych integrity of the parent). Thus, s. 7 applies and it
must be in accordance with the principles of fundamental justice (NB v GJ and Winnipeg Child and
Family Service v KLW). Psychological stress is a deprivation of security of the person as well (see
Blencoe, supra – due to the delays in a decision by the Commission).

Fundamental justice
A deprivation of life, liberty, or security of the person is a breach of s. 7 only if the deprivation is not in
accordance with the principles of fundamental justice. In BC Motor Vehicle Reference (1985), the SCC
held that fundamental justice did cover substantive as well as procedural justice.
     The absolute liability offence of imprisonment when one has a suspended licence violated the
        principles of fundamental justice (MR did not need to be proven). There was no procedural defect
        in the law; rather, it created a substantive injustice.
The definition of fundamental justice was defined in BC Motors as principles to be found in the basic
tenets of the legal system. This isn‟t much of a help! Later cases illustrate that there is little agreement
                                                     73


about these basic tenets (5 different judges gave 5 different opinions on basic legal tenets of the legal
system in Thomas Newspaper 2005!).

The SCC in R v Malmo-Levine (2003 – challenge to criminalization of pot) tried to clean up the
definition of fundamental justice (denied the right balance test). There are three requirements for a rule to
qualify as a basic tenet of the legal system and therefore as a principle of fundamental justice:
    1. Must be a legal principle;
    2. must be a significant societal consensus that it is fundamental to the way in which the legal
         system ought fairly to operate;
    3. The rule must be capable of being identified with a sufficient precision to yield a
         manageable standard.
Note that it was open to Parliament to impose a sentence of imprisonment for crimes that did not involve
harm to others, as it had done, for i.e. in the cases of cannibalism, bestiality, duelling and consensual
incest (rejecting the “harm principle”). In Canadian Foundation for Children, Youth and Law case
(2004, supra) it was argued that the “best interests of the child” was a principle of fundamental justice.
The SCC accepted the three requirements of fundamental justice that it stipulated a month earlier in
Malmo. The best interests of the child were a legal principle, but it was not generally regarded as
fundamental to the justice of the legal system, and it was not one that yielded a sufficiently precise
standard. Thus, it was NOT a principle of fundamental justice. A breach of fundamental justice is of no
con import if it does not cause a deprivation of life, liberty, or security of the person. Always note that
outside the general sphere of criminal justice; only a few laws touch law, liberty or security of the
person.

Absolute and script liability
R v City of Sault Ste Marie (1978) discussed the categories of offences (absolute, strict, and MR).
Absolute liability was held to be a denial of the principles of fundamental justice in BC Motor. The same
was held in R v Hess (1990) where the statutory rape offence was an absolute liability offence (sex with
someone under 14 – even if the conduct lacked MR and negligent).
     The SCC held that an absolute liability offence that carried the penalty of imprisonment was a
        breach of fundamental justice in violation of s. 7.
The offence was not struck down entirely, however, the words “whether or not he believes that she is
fourteen years of age or more” was taken out of the offence (the offence was converted into one of MR).

Strict liability – The two characteristics of strict liability were
     (1) that there was a defence of due diligence and
     (2) That the burden of proving due diligence rested on the D (Sault Ste Marie, supra).
The effect of Wholesale Travel Group (1991) is that in a regulatory offence or a “public welfare
offence” (including those that carry the penalty of imprisonment), fundamental justice does NOT require
that MR be an element of the offence. Fundamental justice is satisfied if there is a defence of reasonable
care (due diligence), and the burden of proving reasonable care (civil standard) may be cast on the D.
      In the case of “true crimes,” fundamental justice requires that MR be an element of the offence,
          and the burden of proving MR (criminal standard) would have to be on the Crown.
In Wholesale Travel, the offence of misleading advertising in the Competition Act was not a true crime
(although it carried a max penalty of 5 years imprisonment). They held that a “true crime” was
“inherently wrongful conduct that was punished, whereas regulatory offences were designed to
establish standards of conduct for activity that could be harmful to others and did not imply moral
blameworthiness (it also attracted less socal stigma) (per Cory J).
      The offence of dangerous driving causing death was held to be a regulatory offence in R v
          Hundal (1993)! Thus, in appropriate contexts, negligence can be an acceptable basis of liability
          which meets the fault requirement of s. 7 of the Charter.
                                                     74


Thus, BC Motor still stands for the proposition that s. 7 of the Charter requires that offences that
carry the penalty of imprisonment must include an element of fault. According to Wholesale
Travel, that element of fault must be subjective MR if the offence is a true crime, and need only be
negligence if the offence is regulatory. However, in Hundal, the Court held that negligence was the
only con requirement for an offence that carried a punishment of 14 yers imprisonment, and the
Court did not clearly state that the offence was a regulatory one (!!??!!) – lack of coherency in the
law

Murder
R v Martineau (1990) established that subjective foreseeability was the level of MR required by s. 7 for
a charge of murder.
     In R v Logan, it was held that attempted murder required subjective MR under s. 7 (thus, two
        accused‟s convicted under 21(2) for an unlawful purpose couldn‟t be convicted of attempted
        murder when the 3rd party shot a man during the robbery). So, 21(2), which purported to make
        objective MR sufficient for the conviction of a party, was inapplicable whenever the principle
        offence was attempted murder or any other offence for which subjective MR was constitutionally
        required.

Unforeseen consequences
Other than Murder, attempted murder, what MR elements are required by s. 7 for an offence that makes a
person liable for the consequences of an unlawful act? In R v DeSousa (1992), the accused was changed
with unlawfully causing bodily harm (threw a glass bottle against a wall, which hit an innocent party, but
he didn‟t intend or foresee the injury). The offence carried a max of 10 years, so s. 7 was applicable. It
was held that there was no con requirement that intention, either on an objective or subjective basis,
extended to the consequences of unlawful acts in general. The accused was lawfully convicted.
     So, for all the less serious offences, the element of MR that was required by the principles of
         fundamental justice did not include any foresight of the consequences of an unlawful act.
In R v Creighton, it was held that for unlawful act manslaughter, there is a requirement of objective
foresight of bodily harm as the mental element of the unlawful act. Foresight of the death is not required,
despite the fact that the max penalty is life.

Disproportionate laws
This is a breach of fundamental justice and therefore a basis for unconstitutionality in a law that affects
life, liberty, or security of the person. Does the law...
     (1) Pursue a legitimate state interest? If so,
     (2) Is the law grossly disproportionate to that state interest (R v Malmo-Levine 2003)?
This case involved the criminalization of pot, and the court held that the answer to (1) was yes, and the
answer to (2) was no, therefore, there was NO s. 7 breach.

Vague laws
A vague law violates the principles of fundamental justice, which causes a breach of s. 7 if the law is a
deprivation of life, liberty, or security of the person.
    1. It doesn‟t provide fair notice to persons of what is prohibited and
    2. it doesn‟t provide clear standards for those entrusted with enforcement, which may lead to
        arbitrary enforcement.
See the Prostitution Reference (1990) where it was argued (among other things) that the offence of
communicating for the purpose of engaging in prostitution was in breach of s. 7 because the offence was
unconstitutionally too vague. The SCC admitted that the provision was broad, but denied that it was so
vague that a court could not give “sensible meaning” to its terms.
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Rights to silence
In R v Hebert, after being questioned by police, de declined to make a statement. While it custody, an
officer dressed as a prisoner, engaged in conversation and go an incriminating statement from the
accused. The SCC held that the statement was in breach of the Charter. Rather than the 10(b) route (right
to counsel), the SCC took the “right to silence” route, which was a principle of fundamental justice.
      This was a basic tenet of the legal system.
      A voluntary statement to another prisoner or even undercover police officer would not offend the
         right if the police did not actively elicit the statement.
The same is true if the informer is a friend visiting an inmate with a wire – the informer is considered the
state‟s agent, and cannot elicit a statement (R v Broyles 1991).

Arbitrariness violates principles of fundamental justice:
Chaoulli v Quebec (AG), [2005] 1 SCR – (McLachlin C.J. and Major and Bastarache JJ) was a
prohibition on the purchase of private health care insurance a breach of the principles of
fundamental justice under s. 7?
     A man with health problems spoke out against wait times in Quebec‟s public health care system.
        Z and C, contested the validity of the prohibition on private health insurance provided for by 2
        Acts. They claimed, inter alia, that s. 15 HEIA and s. 11 HOIA violate their rights under s. 7 of
        the Canadian Charter of Rights and Freedoms.
The appeal was allowed and the provisions did violate s. 7 of the Charter and s. 1 of the Quebec Charter.
The evidence in this case shows that delays in the public health care system are widespread, and that, in
some serious cases, patients die as a result of waiting lists for public health care. Where lack of timely
health care can result in death, the s. 7 protection of life is engaged; where it can result in serious
psychological and physical suffering, the s. 7 protection of security of the person is triggered.
     Section 11 HOIA and s. 15 HEIA are arbitrary, and the consequent deprivation of the
        interests protected by s. 7 is therefore not in accordance with the principles of fundamental
        justice.
In order not to be arbitrary, a limit on life, liberty or security of the person requires not only a theoretical
connection between the limit and the legislative goal, but a real connection on the facts.
     It does not appear that private participation leads to the eventual demise of public health care. The
        breach of s. 7 is not justified under s. 1 of the Canadian Charter.

Right to fair trial
Charkaoui v Canada, [2007] SCR – At issue was the process for the issue of “security certificates”
under the federal Immigration and Refugee Act. Two ministers could name non-citizens as security
threats, leading to their arrest and detention. A federal judge would review whether the certificate was
reasonable or not, and if so, the named persons were deported.
      At no stage did the named person necessarily know the nature of the case against him. There was
         no hearing on the original issue of the certificate. The judge had to exercise confidentiality on the
         information which the certificate was based if its disclosure would be injurious to national
         security or the safety of any person.
The SCC held that the issue of a security certificate was a deprivation of liberty under s. 7, and that
the review process did not satisfy the principles of fundamental justice because it did not provide
the named person with a fair hearing. McLachlin CJ then turned to the Oakes test to see whether it
could be justified. Protecting national security was an important object, and was rationally connected to
the objective. But the law failed the least drastic means test since Parliament could have adopted
procedures to protect secrecy that were less intrusive of individual rights. Without some effort to
compensate for the non-disclosure of secret information, the security-certificate process could not be
justified under s. 1.
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    Equality Rights (Hogg, Chapter 55)
     Con Act 1982 (ss. 15 and 28)

Before the coming into force of s. 15, discrimination against aliens and naturalized subjects, and against
Indians, was undoubtedly competent to the federal Parliament. Subsection (2) of s. 15 authorizes the
creation of affirmative action programmes that have the purpose of ameliorating the conditions of
disadvantaged groups.
     Per s. 32(2), the Charter delayed the coming into force of s. 15 for three years (this brought s. 15
        into force April 17, 1985). This was to provide the federal and provincial governments time to
        review all legislation and bring it into line with s. 15.
Section 15 applies to an “individual,” and probably excludes a corporation. The SCC has held (contrary to
R v S(S)) the requirement of “law” in s. 15 is satisfied by conduct taken under the authority of law, and a
majority of the Court held that a collective agreement is “law” within s. 15 (Douglas College 1990).

Private action: section 32 excludes private action from the application of the Charter. This means that s.
15 does not apply to private acts of discrimination, as where an employer hires only male employees, or a
landlord rents only to white people, etc. However, all jurisdictions have a HR Code to prohibit private
acts of discrimination in employment, etc. The SCC has held that these statutes take precedence over
other statutes (Winnipeg School Division No 1 v Craton 1985).
     However, the Charter can affect these Codes (Blainey v Ontario Hockey Association 1986). A
         girl who was prevented from playing on a boys hockey team challenged part of the Ontario Code
         that allowed single-sex sports teams. Section 15 applied to the Code, which then took out the
         discrimination provision in cases of single-sex sports teams.
The plaintiff was then given a remedy under the Code (indirect remedy from the Charter). The Charter
didn‟t apply directly because the Association was a private organization.

Discrimination (Andrews)
It is now clear that s. 15 should be read as prohibiting only those violations of equality that amount to
“discrimination.” Thus, discrimination is the operative concept. The following definition of
discrimination seems to be adopted by the Courts:
     1. the challenged law imposes (directly or indirectly) on the claimant a disadvantage (in the form of
         a burden or withheld benefit) in comparison to other comparable person;
         (i)      pick a comparator group
         (ii)     Find out whether the distinction that the law draws between the claimant and the
                  comparator group is disadvantageous to the claimant.
     2. the disadvantage is based on a ground listed or analogous to a ground listed in s. 15; and
     3. The disadvantage constitutes an impairment of the human dignity on the claimant.
The claimant who persuades the Court of these 3 elements is entitled to a finding of discrimination, which
means the challenged law is in breach of s. 15. The burden then shifts to government to justify the
discriminatory law under s. 1. The s. 1 test is hard to establish, however (once impairment on human
dignity is found...well...).

Listed or analogous grounds
Andrews v Law Society of BC (1989) was the first s. 15 case to reach the SCC. It was a challenge to the
statutory requirement of the province of BC that members of the bar had to be citizens of Canada. This
requirement was contrary to s. 15, and was not saved by s. 1.
     McIntyre J held that discrimination in s. 15 applies only to the grounds listed in s. 15 and
         “analogous” grounds. The Court held that “citizenship” was an analogous ground of
         discrimination.
So, the first two requirements of “discrimination” immediately rules out JR of all statutes that did not
employ a listed or analogous classification. The limitations of s. 15 to listed and analogous grounds
                                                    77


restricts JR to laws that distinguish between individuals on the basis of their inherent attributes as
opposed to their behaviour (thus, s. 15 has nothing to say about laws that make special provision for those
who have committed a crime, made a will, entered into a contract, etc).
      What does warrant a con remedy is the claim that a law has treated an individual unfairly
         by reason of a condition over which the person has no control.
Sexual orientation was recognized as an analogous ground in Egan v Canada (1995). It is a “deeply
person characteristic that is either unchangeable or changeable only at unacceptable personal costs.”
      In M v H (1999) the Court held that Ontario‟s family law legislation violated s. 15 by excluding
         same-sex couples from spousal support obligations.
      In Vriend v Alberta (1998) the Court held that Alberta‟s HR Code violated s. 15 by failing to
         include sexual orientation as a prohibited ground of discrimination. Note that place of residence
         and occupation are not analogous grounds (R v Turpin 1989 and Workers’ Compensation
         Reference 1989).

Human Dignity
This requirement was added in Law v Canada (1999) where under the federal Canada Pension Plan,
survivors‟ benefits were payable to the spouses of deceased contributors, unless the spouse was under the
age of 35, in which case the survivor was not entitled to survivors‟ benefits. Thus, the claimant was
withheld funds based on her age, which is clearly listed in s.15. Under Andrews, this would be enough
and the analysis would go on to s. 1.
     But because the Court added the requirement of impairment to human dignity to s. 15, the
        claimant‟s equality claim was denied without recourse to s. 1.
     However, R v Kapp (2008) retracted the requirement of impairment of human dignity,
        replacing it with the very similar requirement of “discrimination.” McLachlin CJ and Abella
        J stated that as a legal test, human dignity was “confusing and difficult to apply.”
However, after Kapp, it is still necessary for an equality claimant to establish something in addition to
disadvantage based on a listed or analogous ground. The additional element (discrimination) is no longer
an impairment of human dignity; it is now the perpetuation of disadvantage or stereotyping.

Disadvantage
In order to establish discrimination under s. 15 an individual must show that he or she suffered a
disadvantage by reason of his or her possession of one of the characteristics named in s. 15 or an
analogous characteristic. In Andrews, McIntyre J said that, in order for a legislative distinction to amount
to discrimination against an individual or group, the distinction must be one which...
      “has the effect of imposing burdens, obligations or disadvantages on such individual or group not
         imposed on others, or which withhold or limits access to opportunities benefits and advantages
         available to other member of society.”
So, disadvantage requires a comparison with others who are similarly situated to the complainant except
for the presence of a listed or analogous personal characteristic. SO
     1. a comparator group must be selected and
     2. figure out whether the distinction that the law draws between the claimant and the comparator
         group is disadvantageous to the claimant.

Comparator group: Auton v BC (2004) where a claim of discrimination was made by autistic children
and their parents because the province didn‟t fund the “applied behavioural therapy” that was the most
effective treatment for autism. The province‟s statutory health care plan provided full funding for all
medically necessary services provided by physicians (but not autism therapy).
     CA held that the province was in breach of s. 15 because it funded some medically necessary
         therapies, but did not fund the equally necessary autism therapy (SCC reversed decision).
The error was in the comparator group (it was wrong to compare the autism claimants with the recipients
of fully funded therapies) since autism had only recently become recognized medically as necessary.
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Because the claimants had adduced no evidence that the province was funding “other comparable, novel
therapies,” they could not show disadvantage or unequal treatment. If the comparator group were defined
as person receiving medically necessary therapy, the autism claimants would be able to show unequal
treatment. But when the therapy is described as “novel,” no comparator group can be found, and the
claimants are unable to show equal treatment.

Requirement of disadvantage: Once the appropriate comparator group has been selected, it is necessary to
compare the treatment provided by the law to the claimant with the treatment provided to the comparator
group.
     Only if the law treats the claimant less favourably (withholding benefit that is granted to the
         comparator group OR imposing burden not applicable to the comparator group) is the claim of
         disadvantage or unequal treatment made out.
See Eaton v Brant County Board of Education (1997) where it was held that placing a mentally
challenged pupil in a special school setting without consent of parents did not constitute a disadvantage to
the child. It was in the child‟s best interest. Therefore, there was no discrimination under s. 15. The
disadvantage is to be based from the perspective of a reasonable person (objective), but one who shares
the attributes and circumstances of the claimant (subjective).

Direct and indirect discrimination
A law may be discriminatory on its face.
     A law that expressly excluded women from admission to the police force would be discriminatory
        on its face. This is an example of direct discrimination (which s. 15 protects against).
     A law may also be discriminatory in its effect. A law that imposed height or weight qualification
        for admission to the police force would be discriminatory in its effect if the effect of the law
        (whether intended or not) was to disqualify a disproportionate number of woman. This is an
        example of indirect discrimination. A law that is discriminatory in its effect is invalid per s.
        15.
     A law may also be discriminatory in its application. A law that prescribed no discriminatory
        qualifications for admission to the police force would be discriminatory in its application if police
        recruitment procedures led to the rejection of a disproportionate number of female applicants.
        This is another kind of indirect discrimination and is also a breach of substantive equality and of
        s. 15. Where a law is discriminatory only in its application, s. 15 will not lead to the
        invalidity of the law itself. S. 15 will deny validity to past applications of the law, and will
        require (in the police example) that gender-neutral procedures be established for its future
        administration.

Justification under s. 1
Section1 applies to laws that infringe s. 15 no less than to laws that infringe other rights.
     However, since Law imported human dignity into s. 15 in 1999, there has been only one case in
        which s. 1 has saved a law found to be in breach of s. 15.
In Newfoundland v NAPE (2004) the government postponed collective agreements to increase wages of
female hospital worker in order to achieve pay equity with men. The Court held that it was a breach of
human dignity to maintain in force wages that did not do justice to the female workers‟ contribution.
Although the pay equity agreements were mandated by the Charter, their postponement was justified
under s. 1 due to the government financial crisis.
     Since, Kapp (2008), it‟s unlikely that s. 1 will be restored to its intended justificatory rule since
        the substituted concept of “discrimination” appears to be very similar to human dignity.

Affirmative action
15(2) makes clear that s. 15 does not preclude “affirmative action” or “equity” programmes in favour of
“disadvantages individuals or groups.” But note that s. 15(2) is an expression of equality, not an exception
                                                     79


to it (Hogg, affirmed by Kapp). The focus of subsection (1) was on preventing governments from
discriminating while the focus of (2) was on enabling governments to pro-actively combat discrimination
(Kapp).

Section 28
Within its narrow sphere of application, s. 28 is a stronger guarantee than s. 15 in at least two ways:
    1. The three year delay applied to s. 15 but not to s. 28 and;
    2. legislative override applies to s. 15 but not s. 28.

Andrews v Law Society of BC, [1989] 1 SCR – (Per Dickson C.J. and McIntyre, Lamer, Wilson and
L'Heureux-Dubé JJ) (regarding s. 15(1)) The respondent Andrews, a British subject permanently resident in
Canada met all the requirements for admission to the British Columbia bar except that of Canadian
citizenship. The constitutional questions before this Court dealt with: (1) whether the Canadian citizenship
requirement for admission to the British Columbia bar infringed or denied the equality rights guaranteed by s.
15(1) of the Charter; (2) if so, whether that infringement was justified by s. 1. The effect of the impugned
distinction or classification on the complainant must be considered.
      Given that not all distinctions and differentiations created by law are discriminatory, a complainant
         under s. 15(1) must show...
         (1) that he or she is not receiving equal treatment before and under the law or that the law has a
              differential impact on him or her in the protection or benefit of the law and
         (2) That the law is discriminatory.
A rule which bars an entire class of persons from certain forms of employment, solely on the grounds of a
lack of citizenship status (analogous ground) and without consideration of educational and professional
qualifications or the other attributes or merits of individuals in the group, infringes s. 15 equality rights.
Section 42 of the Barristers and Solicitors Act is such a rule.
      Regarding s. 1: the objective of the legislation was not sufficiently pressing and substantial to
         warrant overcoming the rights protected by s. 15. The legislation was not justified under s. 1. The
         proportionality test was not met.

Law v Canada (Min of Employment and Immigration), [1999] SCR - The appellant, a 30-year-old
woman without dependent children or disability, was denied survivor‟s benefits under the Canadian
Pension Plan. The threshold age to receive benefits is age 35. She argued that these age distinctions
discriminated against her on the basis of age contrary to s. 15(1). The constitutional questions here
queried whether ss. 44(1)(d) and 58 of the Canada Pension Plan infringe s. 15(1) of the Charter on the
ground that they discriminate on the basis of age against widows and widowers under the age of 45, and if
so, whether this infringement is demonstrably justified in a free and democratic society under s. 1. HELD:
the first question was answered in the negative and the second didn‟t need to be answered.
     The approach adopted and regularly applied by this Court to the interpretation of s. 15(1) focuses
          upon three central issues:
    (a) whether a law imposes differential treatment between the claimant and others, in purpose or
          effect;
    (b) whether one or more enumerated or analogous grounds of discrimination are the basis for the
          differential treatment; and
    (c) whether the law in question has a purpose or effect that is discriminatory within the meaning of
          the equality guarantee.
In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and
freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to
promote a society in which all persons enjoy equal recognition at law as human beings or as members of
Canadian society, equally capable and equally deserving of concern, respect and consideration.
     As a result of the ages specified under the CPP, a clear distinction is drawn between the appellant
          and others on the basis of age. Both the delay in the receipt of benefits and the reduced
                                                       80


         entitlement to benefits constitute a denial of equal benefit of the law under the first step of the
         equality analysis.
A ground or grounds will not be considered analogous under s. 15(1) unless it can be shown that
differential treatment premised on the ground or grounds has the potential to bring into play human
dignity. Neither the purpose nor the effect of the impugned legislative provisions was demonstrated
to violate the appellant’s human dignity so as to constitute discrimination.
     There is a variety of factors which may be referred to by a s. 15(1) claimant in order to
         demonstrate that legislation demeans his or her dignity. The list of factors is not closed. Some
         important contextual factors influencing the determination of whether s. 15(1) has been infringed
         are, among others: Pre-existing disadvantage, stereotyping, prejudice, or vulnerability
         experienced by the individual or group at issue.

R v Kapp, [2008] 2 SCR - a communal fishing licence was given to three aboriginal bands (as part of a
federal government fishing strategy), permitting fishers designated by the bands to fish for salmon in the
mouth of the Fraser River for a period of 24 hours and to sell their catch.
     The appellants, who are all commercial fishers, mainly non-aboriginal, excluded from the fishery
         during this 24-hour period, participated in a protest fishery and were charged with fishing at a
         prohibited time. At their trial, they argued that the communal fishing licence discriminated
         against them on the basis of race (15(1)). HELD: the appeals dismissed and the communal fishing
         licences were constitutional.
The communal fishing licence falls within the ambit of s. 15(2) of the Charter, and the appellants‟ claim
of a violation of s. 15 cannot succeed. A distinction based on an enumerated or analogous ground in a
government program will not constitute discrimination under s. 15 if, under s. 15(2):
    1. the program has an ameliorative or remedial purpose; and
    2. The program targets a disadvantaged group identified by the enumerated or analogous grounds.
As critics have pointed out, human dignity is an abstract and subjective notion that, even with the
guidance of the four contextual factors, cannot only become confusing and difficult to apply; it has
also proven to be an additional burden on equality claimants, rather than the philosophical
enhancement it was intended to be.

    Remedies (Hogg, Chapter 20 “enforcement of rights”)
     Con Act 1982 (s. 24 and s. 52)

Note s. 52(1) Con Act 1982 which is the supremacy clause. This clause gives to the Charter overriding effect.
Since the Charter is part of the Con of Can, any law that is inconsistent with the Charter is of no force or
effect. So, the effect of 52(1) is to preserve all pre-existing remedies for unconstitutional action and to extend
those remedies to the Charter. The Charter itself, however, contains its own remedy clause (24(1)).
     The difference between 24(1) and 52(1) is that 24 only applies to breaches of the Charter while
         52 is applicable to the entire con of Canada (including the Charter).
     Second, 24 only applies to people whose rights have been infringed, whereas 52 may be available
         despite no breach of rights.
     Third, 24(1) authorizes a wide range of remedies whereas 52 appears to only authorize invalidity.
         Thus, 24 entails some discretion.
There are 6 choices available to a court under 52(1):
    (1) nullification;
    (2) temporary validity (striking it down, but temporarily suspending the coming into force of the
         declaration of invalidity);
    (3) severance;
    (4) reading in;
    (5) reading down;
    (6) con exemption.
                                                        81



Nullification – if a law is found to be inconsistent with the Charter, the court is obliged to strike the law down
(things progress as if the law didn‟t exist). Thus, if someone is charged with an offence, if that law is
nullified, the accused is acquitted. The same is true for a civil action.

Temporary validity – notwithstanding the above, the courts have assumed the power to postpone the
operation of the declaration of invalidity.
      When a court exercises this power, the effect is to grant a period of temporary validity to an
          unconstitutional statute, because the statute will remain in force until the expiry of the period of
          postponement.
See Re Manitoba Language Rights (1985) where the SCC assumed the power to hold that unconstitutional
laws were to be given “temporary force and effect” to allow the legislature time to enact the required
corrective legislation. The Court did so on the rule of law (this was not a Charter case). In Dixon v BC (1989)
(McLachlin CJ in the SC of BC at the time) the court held that provincial legislation prescribing electoral
district for the province was unconstitutional (the difference between population of voting districts was so
great as to violate s. 3 (right to vote)). However, without the law, it would leave the province without a means
of having an election. The law was temporarily left in place for a reasonable time to make the required
remedies to the legislation.
      Lamer CJ in Schachter (see facts below) noted the radical character of this remedy.
     1. it maintains in force a statute that is unconstitutional.
     2. it interferes with the legislative process because the delayed nullification forces the matter back onto
          the legislative agenda at a time NOT of the choosing of the legislature, and within time limits under
          which the legislature would not normally be forced to act.

Severance – This is the appropriate remedy when only part of the statute is held to be invalid, and the rest can
independently survive.
      A court will hold that the bad part of the statute should be struck down and severed from the good
          part, thereby preserving the part that complies with the Con. Severance occurs in most Charter
          cases because it is unusual for a Charter breach to taint a statute in its entirety.
Severance is a doctrine of judicial restraint, so the court‟s intrusion into the legislative process goes no further
than is necessary to vindicate the Charter right. In R v Hess (1990) severance was used to eliminate words of
the rape provision of the CC (“whether or not he believes that she is 14 years of age or more”). This violated
s. 7 because it eliminated the requirement of MR for an essential element of the offence, namely, the age of
the girl. Just those specific words were deleted from the provision. Thus, in a few Charter cases, the SCC has
started to use the doctrine of severance in order to repair a statutory provision that was invalid in the language
in which it was enacted. In these cases, severance is used to amend the defective statutory provision by
deleting the words that caused the con problem.

Reading in – In Schachter v Canada the federal Unemployment Insurance Act treated adoptive parents
more generously than natural parents, which was agreed on appeal to be a denial of equal benefits of the law
in violation of s. 15.
      Severance couldn‟t take place here, because there was no severable provision excluding natural
         parents from the child care benefits, the Act simply limited the benefits to adoptive parents.
The courts held it possessed the power (in theory) to “read in” new language into the statute to include natural
parents along with adoptive parents. A judicial remedy was available to cure the under-inclusive statutory
scheme even if new language had to be added to the statute in order to accommodate the unconstitutionally
excluded class. HOWEVER, this case was not appropriate for reading in. It could not be assumed that
the addition of natural parents to the provision would be consistent with the legislative objective.
Reading in here would definitely be an intrusion into the legislative domain (the cost of child care benefits
would go up hugely!).
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Reading down – this is the appropriate remedy when a statute will bear two interpretations, one of which
would offend the Charter and the other of which would not. A court will hold that the latter interpretation,
which is normally the narrower one (hence reading down), is the correct one.
    Here there is no holding of invalidity. The vindication of the Charter right is accomplished solely by
        interpretation. It is another doctrine of judicial restraint.

Constitutional expansion – The advantage of the con exemption 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.

Remedy clause
 24(1) provides for the granting of a remedy to enforce the rights or freedoms guaranteed by the Charter.
Note that it is only available for a Charter breach. Note that 24(1) is not the only remedy section, the
supremacy clause (52(1)) may provide for invalidity. Thus, someone charged with a criminal offence that
violates a Charter provision will be invalid and the accused will be acquitted. Section 24(1) is not needed
in such a case.
      Also note that if an admin tribunal is not a court of competent jurisdiction, then it lacks the
          remedial powers granted by s. 24(1).
Section 24(1) is not needed to provide a remedy for a Charter infringement where a holding of invalidity
is all that the applicant needs in order to obtain an appropriate remedy that is available under the general
law.
      Generally, it will be the declaration of invalidity under s. 52(1) that provides the remedy for laws
          that violate a Charter right while 24(1) provides the remedy for government acts that violate an
          individual‟s Charter right. 24(1) provides a “personal remedy against unconstitutional
          government action (R v Ferguson 2008).
Thus, the only person who has standing to seek a remedy under s. 24(1) is the very person whose
Charter right has been infringed.

Standing: standing to apply for a remedy under s. 24(1) is granted to anyone who‟s Charter rights have
been infringed or denied. Sometimes a person, motivated by public interest, wishes to make a Charter
challenge to a statute that does not even apply to the challenger. This cannot be done under s. 24(1).
     Thus, in Big M Drug Mart, although a corporation can‟t obtain a remedy under s. 24(1) for a
        denial of freedom of religion (no standing), the challenge was based on the supremacy clause of s.
        52(1).
In Min of Justice v Borowski (1981), the SCC granted standing to an anti-aborition activist to bring an
action for a declaration that the CC‟s abortion provisions were unconstitutional. Those provisions could
never actually be applied to the applicant (who was neither a doctor nor woman), but he was granted
standing nevertheless.
     This illustrates that the availability of a declaration of invalidity under s. 52(1) is governed
        by more generous standing requirements than are the remedies authorized by s. 24(1).

Apprehended infringements: no one could bring a s. 24(1) application after nothing more than an
announcement of a new police interrogation procedure, even if the announced procedure was going to
infringe the Charter. However, if the Charter threat is imminent, that may work. See Quebec Association
of Protestant School Boards where 24(1) was available as a remedy where English-speaking parents
were denied by statute their right under s.23 to send their children to an English-speaking school in
Quebec, even before the school year.

Court of competent jurisdiction: section 24(1) remedies may only be granted by a “court of competent
jurisdiction” (this is not the case for s. 52 remedies).
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     A superior court, which is a court of general jurisdiction, is always a court of competent
        jurisdiction. So, an application for a remedy under s. 24(1) can always be made to a superior
        court.
The SCC has held that a PI judge is NOT a court of competent jurisdiction (R v Hynes 2001).
     An admin tribunal is a court of competent jurisdiction if its constituent statute gives it power over
        (1) the parties to the dispute, (2) the subject matter of the dispute, and (3) the Charter remedy that
        is sought (Weber v Ontario Hydro 1995).
Here the majority of the SCC held that a labour arbitrator was a court of competent jurisdiction which
could grant a declaration and damages under s. 24(1) for a breach of the Charter. In Mooring v Canada
(1996) the National Parole Board revoked the parole of the applicant. The Board‟s decision was based on
evidence discovered by an illegal search. The applicant applied to the courts to quash the Board‟s
decision on the ground that the Board ought to have excluded the evidence that had been obtained in
breach of the Charter.
     Was the National Parole Board a court of competent jurisdiction, because only a court of
        competent jurisdiction would have the power to exclude evidence on Charter grounds.
The Board had power over the parties and the subject matter of the dispute, but, according the SCC, the
Board did not have power to grant the remedy sought.

Range of remedies: subject to the important qualification that a remedy must be “appropriate and just in
all the circumstances of the case,” there is no limit to the remedies that may be ordered under s.
24(1).
     1. There are “defensive” remedies (court stops some law or act) such as dismissing a charge, staying
         a proceeding, quashing a search warrant, or declaring a law to be invalid.
     2. There are also “affirmative” remedies such as ordering the return of goods improperly seized,
         mandatory injunction requiring positive action, or ordering a province to provide state-funded
         counsel to an indigent litigant.
     3. Damages are sometimes ordered for a Charter breach as well.
See Du-Lude v Canada (2000) where an arrest of a soldier by military police in violation of s. 9
(arbitrary detention) attracted damages of $10,000 under 24(1). This was so even though the claimant
suffered no harm – these constituted “moral damages” for the Charter breach (this would not be
compensable by common-law damages). Damages won‟t be awarded if the law is merely held to be
unconstitutional (Mackin v NB 2002). The SCC has also upheld an award of costs against the Crown for
delay in making disclosure, although the Court warned that this remedy was appropriate and just only in
exceptional cases (R v 974649 (2001)).

Supervision of court order: see the Doucet-Boudreau v NS (2003) where, after a s. 23 violation, the
judge said he had jurisdiction to hear updated progress reports of the new schools being built (also
specified the dates when the schools should be done). The AG appealed the part of the decision about the
court having jurisdiction to hear reports on the progress of the schools. Could a judge retain jurisdiction to
supervise compliance with a remedial order under s. 24(1)? The answer was yes (5/4 split).
     The judge thought without the progress meetings, the government would either delay or ignore
        the order. This remedy was appropriate and just in the circumstances (SCC gave a wide reading
        to 24(1)).

Administrative tribunals
The Court held in NS v Martin (2003) that a tribunal with power to determine questions of law, whether
the power was express or implied, was presumed to have the power to determine the con validity of any
potentially applicable law. That presumption could be rebutted only by showing that the legislation
empowering the tribunal “clearly intended to exclude Charter issues from the tribunal‟s authority over
questions of law.” As far as PI judges, they seem to have the power to decide con questions that affect the
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validity of the charge or the admissibility of the evidence tendered in support of the charge (Martin and
Paul).

Schachter v Canada, [1992] 2 SCR - The trial judge found a violation of s. 15 of the Charter in that s. 32
discriminated between natural parents and adoptive parents with respect to parental leave. He granted
declaratory relief under s. 24(1) of the Charter and extended the same benefits to natural parents as were
granted to adoptive parents under s. 32. The constitutional questions stated in this Court queried: (1) whether
s. 52(1) of the Constitution Act, 1982 required that s. 32 of the Unemployment Insurance Act, 1971, given an
unequal benefit contrary to s. 15(1) of the Charter, be declared of no force or effect, and (2) whether s. 24(1)
of the Charter conferred on the Federal Court Trial Division the power to order that natural parents are
entitled to benefits on the same terms as benefits are available to adoptive parents under s. 32.
      The first question was answered in the affirmative and second the negative.
Section 52 is engaged when a law is itself held to be unconstitutional, as opposed to simply a particular
action taken under it. Once s. 52 is engaged, three questions must be answered.
     1. What is the extent of the inconsistency?
     2. Can that inconsistency be dealt with alone, by way of severance or reading in, or are other parts of
          the legislation inextricably linked to it?
     3. Should the declaration of invalidity be temporarily suspended?

Vriend v Alberta, [1998] 1 SCR – V was fired because he was homosexual, and challenged the HR code
for not including a prohibition of discrimination on grounds of homosexuality. He attempted to file a
complaint with the Alberta Human Rights Commission on the grounds that his employer had
discriminated against him because of his sexual orientation, but the Commission advised V that he could
not make a complaint under the Individual’s Rights Protection Act (IRPA), because it did not include
sexual orientation as a protected ground. V and the other appellants filed a motion in the Court of
Queen‟s Bench for declaratory relief. The trial judge found that the omission of protection against
discrimination on the basis of sexual orientation was an unjustified violation of s. 15 of the Charter. She
ordered that the words “sexual orientation” be read into ss. 2(1), 3, 4, 7(1), 8(1) and 10 of the IRPA as a
prohibited ground of discrimination. The majority of the Court of Appeal allowed the Alberta
government‟s appeal.
     Reading sexual orientation into the impugned provisions of the IRPA is the most appropriate way
         of remedying this under inclusive legislation. It is reasonable to assume that, if the legislature had
         been faced with the choice of having no human rights statute or having one that offered protection
         on the ground of sexual orientation, the latter option would have been chosen.

				
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Description: Summary of Canada's constitutional system