Canadian Constitutional Law – Prof. Colleen Sheppard - McGill by shuifanglj

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Canadian Constitutional Law – Prof. Colleen Sheppard
PART I: INTRODUCTION .....................................................................................................................................................................6
  ELEMENTS OF CANADIAN CONSTITUTION.......................................................................................................................................................... 6
  SOURCES OF CANADIAN CONSTITUTIONAL LAW ................................................................................................................................................. 6
  CONSTITUTIONAL CHANGE (CB PP. 8-9) .......................................................................................................................................................... 6
        Reference re Secession of Quebec, [1998] 2 SCR 217. ........................................................................................................................................... 7
  MINORITY RIGHTS: PRECEDENT AND INNOVATION ............................................................................................................................................. 7
        Lalonde v. Ontario (Commission de restructuration de services de santé (2001), 56 O.R. (3d) 505 (Ont. C.A.) (excerpt) ..................................... 7
  ANTECEDENTS OF THE CHARTER (CB PP.633-644) ............................................................................................................................................ 8
  THE RULE OF LAW POWER ............................................................................................................................................................................ 8
        A.V. Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 1885), at 167; Casebook pp. 634 ............................. 8
        W. Kaplan, State and Salvation: The Jehovah’s Witnesses and Their Fight for Civil Rights (Toronto: University of Toronto Press, 1989);
        Casebook pp. 636 ................................................................................................................................................................................................... 8
        Roncarelli v. Duplessis, [1959] SCR 121; 16 DLR (2d) 689. ..................................................................................................................................... 8
        British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473. .......................................................................................... 8
        British Columbia (Attorney General) v. Christie, 2007 SCC 21 ............................................................................................................................... 9
        Mack v. Canada (Attorney General), *2002+ O.J. No.3488 “The Chinese Head Tax Case” – OPTIONAL READING ................................................. 9
  CONSTITUTIONAL CONVENTIONS .................................................................................................................................................................... 9
        Reference Re Amendment of the Constitution of Canada (Nos. 1, 2 and 3) “The Patriation Reference”, [1981] 1 S.C.R. 753 (excerpts). ............ 9
  IMPERIAL STATUTES ................................................................................................................................................................................... 10
        Hogg, Constitutional Law of Canada (2007) sections 2.6, 3.1-3.4 ........................................................................................................................ 11
PART II: THE ROLE OF JUDGES ......................................................................................................................................................... 12
  JUDICIAL REVIEW AND THE CANADIAN COURT SYSTEM ...................................................................................................................................... 12
    Section 96, 92(4) and Administrative Tribunals ................................................................................................................................. 12
  JUDICIAL REVIEW AND THE LEGITIMACY ISSUE (CB PP. 29-31) ........................................................................................................................... 12
  THE INDEPENDENCE OF THE JUDICIARY (CB PP. 503-507) ................................................................................................................................ 13
        Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3. (excerpts) (CBp.504) .................................................. 13
  TRIGGERING JUDICIAL REVIEW AND PROCEDURAL ISSUES (CB PP. 46-51) ............................................................................................................ 13
  THE JUDICIAL FUNCTION (CB PP. 469-471) ................................................................................................................................................... 14
  PERSPECTIVES ON LEGAL AND CONSTITUTIONAL INTERPRETATION (CB PP. 31-46) ................................................................................................. 14
        Robin Elliot, “References, Structural Argumentation and the Organizing Principles of Canada's Constitution” (CBp.32) ................................... 15
        Reference re Meaning of the Word “Persons” *1928+ SCR 276./Edwards v. A.G. Canada [1930] A.C. 123 (H.L.) (CBp.41) ................................. 15

PART III: HISTORICAL DEVELOPMENTS AND PERSPECTIVES ............................................................................................................. 16
  FROM CONTACT TO CONFEDERATION (CB PP. 55-75) ...................................................................................................................................... 16
        Jean-François Gaudreault-DesBiens, “The Quebec Secession Reference and the Judicial Arbitration of Conflicting Narratives about Law,
        Democracy, and Identity” (CB p.57) ..................................................................................................................................................................... 16
        Patrick Macklem, “Indigenous Difference and the Constitution of Canada” (CBp.62) ......................................................................................... 16
        G. Stevenson, Unfulfilled Union, 3d Edition (CB pp.77-83) .................................................................................................................................. 18
        A.Silver, The French Canadian Idea of Confederation 1864-1900 (CB pp. 83-87) ................................................................................................ 18
PART IV: FEDERALISM ...................................................................................................................................................................... 19
  HISTORICAL CHAPTERS IN CANADIAN FEDERALISM ........................................................................................................................................... 19
  THE LATE NINETEENTH CENTURY .................................................................................................................................................................. 19
        Richard Risk, “Constitutional Thought in the Late Nineteenth Century” (1991) 20 Man. L.J. 196 ....................................................................... 20
        MAIN POINTS: Formalism vs. Contextualization ................................................................................................................................................ 20
        Russell v. The Queen (1882), 7 AC 829 (PC) (CB p.97) .......................................................................................................................................... 20
        Hodge v. The Queen (1883), 9 AC 117 (PC) (CB p.101) ........................................................................................................................................ 21
        AG Ontario v. AG Canada (The Local Prohibition Reference) [1896] AC 348 (PC) (CB p.107) .............................................................................. 21
        Barrett v. City of Winnipeg (1891), 1 S.C.R. 374 ................................................................................................................................................... 22
  THE EARLY TWENTIETH CENTURY .................................................................................................................................................................. 23
        Toronto Electric Commissioners v. Snider (1925) (CB p.137) ............................................................................................................................... 23
        The King v. Eastern Terminal Elevator Co. [1925] (CB p.141) ............................................................................................................................... 23
     Competing Visions of Federalism ....................................................................................................................................................... 24
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      H.E. Smith, “The Residue of Power in Canada,” (1926) (CBp.146) ....................................................................................................................... 24
      J.R. Mallory, “Social Credit and the Federal Power in Canada,” (1954) (CBp.147) ............................................................................................... 24
      Alan Cairns, “The Judicial Committee and its Critics,” (1971) (CBp.149) ............................................................................................................. 24
      David Schneiderman “Harold Laski, Viscount Haldane, and the law of the Canadian Constitution in the Early Twentieth Century” (CB pp. 151-
      153) ...................................................................................................................................................................................................................... 24
THE DEPRESSION AND THE “NEW DEAL” ........................................................................................................................................................ 24
  Two Cases Thwarting Federal Economic Regulation ......................................................................................................................... 24
      A.G. Canada v. A.G. Ontario (Labour Conventions) (1936-1937) (CB p.168) ........................................................................................................ 24
      A.G. Canada v. A.G. Ontario (The Employment and Social Insurance Act) (1936-1937) (CB p.173) ..................................................................... 25
      Simeon and Robinson, State, Society, and the Development of Canadian Federalism (CB pp. 178-180) ............................................................ 25
      W.P.M. Kennedy, “The British North America Act: Past and Future” (1937) (CB pp. 180-181) ........................................................................... 25
      F.R. Scott, “The Consequences of the Privy Council Decisions” (1937) (CBp.181) ............................................................................................... 25
      W.F. O’Connor, The O’Connor Report (1939) (CBp.183) ...................................................................................................................................... 26
FEDERALISM AND THE MODERN CANADIAN STATE ........................................................................................................................................... 27
      K. Norrie, R. Simeon, and M. Krasnick, Federalism and the Economic Union (1986) (CB p. 188-195) ................................................................. 27
      Richard Simeon, “Criteria for Choice in Federal Systems” (CBp.198)................................................................................................................... 28
      A Note About Executive Federalism: .................................................................................................................................................................... 29
      Bruce Ryder, “The Demise and Rise of the Classical Paradigm” (1991) (CBp.237) ............................................................................................... 29
INTERPRETING THE DIVISION OF POWERS ....................................................................................................................................................... 29
  Validity: Pith and Substance .............................................................................................................................................................. 29
      Katherine Swinton, The Supreme Court and Canadian Federalism: The Laskin-Dickson Years (1990) (CBp.205) ............................................... 30
      W.R. Lederman, “Classification of Laws and the British North America Act” (1981) (CBp.208)........................................................................... 30
      R v. Morgentaler [1993] 3 SCR 463. (CB p.213) .................................................................................................................................................... 31
      Canadian Western Bank v. Alberta 2007 SCC 22 (excerpt) (Supplement Vol. 1, pp. 7-10)................................................................................... 31
      Reference re Employment Insurance Act (Can.), ss. 22 and 23, [2005] 2 S.C.R. 669, 2005 SCC 56 ...................................................................... 32
  Validity: Necessarily Incidental or Ancillary Doctrine (CB pp. 224-230) ............................................................................................. 32
      General Motors of Canada Ltd. v. City National Leasing [1989] 1 SCR 641. (CB p.225&371) ............................................................................... 33
  Validity: Double Aspect (CB pp. 231-239) .......................................................................................................................................... 33
      W.R. Lederman, “Classification of Laws and the British North America Act” (1981) (CBp.231)........................................................................... 33
      Multiple Access Ltd. v. McCutcheon [1982] 2 SCR 161. (CB p.232 and p.260) ..................................................................................................... 33
      B. Ryder, “The Demise and Rise of the Classical Paradigm in Canadian Federalism: Promoting Autonomy for the Provinces and First Nations”
      (CB p. 237) ............................................................................................................................................................................................................ 34
  Applicability: Interjurisdictional Immunity (CB pp. 239-254) ............................................................................................................. 34
      Commission du Salaire Minimum v. Bell (Bell #1) [1966] SCR 767. (CB p.240) .................................................................................................... 35
      McKay v. The Queen, [1965] SCR 798. (CB p.242) ................................................................................................................................................ 35
      Commission de la Santé et de la Sécurité du Travail v. Bell (Bell #2) [1988] 1 SCR 749. (CB p.246) ..................................................................... 35
  Operability: Paramountcy (CB pp. 254-272) ...................................................................................................................................... 36
      Ross v. Registrar of Motor Vehicles, [1975] 1 SCR 5. (CB p.255) .......................................................................................................................... 36
      Bank of Montreal v. Hall, [1990] 1 SCR 121 ......................................................................................................................................................... 37
      Canadian Western Bank v. Alberta, 2007 SCC 22 (Supplement Vol. 1, pp. 15-26) ............................................................................................... 37
      Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188, 250 D.L.R. (4th) 411 ........................................................................... 38
PEACE, ORDER AND GOOD GOVERNMENT ...................................................................................................................................................... 38
      Reference re Anti-Inflation Act, [1976] 2 SCR 373. (CBp.281) .............................................................................................................................. 39
      Katherine Swinton: Laskin and Beetz (CBp.276-281) ........................................................................................................................................... 40
      R. v. Crown Zellerbach Canada Ltd., [1988] 1 SCR 401. (CBp.303) ....................................................................................................................... 40
      Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 SCR 3. (CBp.318) ................................................................... 41
CRIMINAL LAW.......................................................................................................................................................................................... 41
  Federal Powers over Criminal Law (CB pp. 389-415) ......................................................................................................................... 41
      Margarine Reference, [1949] SCR 1. (CBp.390) ................................................................................................................................................... 42
      RJR MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199. (CBp.392)................................................................................................ 42
      R. v. Hydro-Québec, [1997] 3 SCR 213. (CBp.400) ............................................................................................................................................... 43
      Reference re Firearms Act, [2000] 1 SCR 783. (CBp.413) ..................................................................................................................................... 43
  Provincial Powers to Regulate Morality and Public Order (CB pp. 415-426) ..................................................................................... 44
      Re Nova Scotia Board of Censors v. McNeil, [1978] 2 SCR 662. (CBp.416)........................................................................................................... 44
      Westendorp v. The Queen, [1983] 1 SCR 43. (CBp.421) ...................................................................................................................................... 45
  Visions and Values in Adjudicating Federalism Disputes (CB pp. 198-204) ....................................................................................... 45
ECONOMIC REGULATION ............................................................................................................................................................................. 46
  Provincial Powers Over Economic Regulation ................................................................................................................................... 47
      Carnation Co. Ltd. v. Quebec Agricultural Marketing Board [1968] SCR 238. (CBp.330) ..................................................................................... 47
      R. Simeon and I. Robinson, State, Society and the Development of Canadian Federalism (CBp.343) ................................................................. 48
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       Central Canadian Potash Co. Ltd. v. Govt. of Saskatchewan [1979] 1 SCR 42. (CBp.350) .................................................................................... 48
    Federal Powers over Economic Regulation ........................................................................................................................................ 48
       The Queen v. Klassen (1960), 20 D.L.R. (2d) 406 (Man.C.A.). (CBp.357) .............................................................................................................. 49
       Laskin’s “Note on The Queen v. Klassen” (p. 359) ............................................................................................................................................... 49
       General Motors of Canada Ltd. v. City National Leasing [1989] 1 SCR 641; 58 DLR (4th) 255 (CBp.371) ............................................................. 50
       Kirkbi AG v. Ritvik Holdings Inc. [2005] 3 S.C.R. 302, 2005 SCC 65 (SuppVol.1p.27) ............................................................................................ 51
    Mobility Rights and the Economy ...................................................................................................................................................... 52
       Black and Co. v. Law Society of Alberta, [1989] 1 SCR 591; 58 DLR (4th) 317 (CBp.324) ..................................................................................... 53
       Canada Egg Marketing Agency v. Richardson, [1998] 3 SCR 157. (CBp.327) ........................................................................................................ 53
    Strengthening the Canadian Economic Union (CBp.382-384) ........................................................................................................... 54
  POLICY INSTRUMENTS AND FLEXIBLE FEDERALISM ............................................................................................................................................ 55
    Spending Power ................................................................................................................................................................................. 55
       Keith Banting, “The Past Speaks to the Future: Lessons from the Social Union” (1998) (CBp.428) ..................................................................... 56
       Andrew Petter, “Federalism and the Myth of the Federal Spending Power” (1989) (CBp.435) .......................................................................... 56
       Sujit Choudhry, “Recasting Social Canada: A Reconsideration of Federal Jurisdiction over Social Policy”) (2002) (CBp.437) ............................. 56
    Intergovernmental Agreements ........................................................................................................................................................ 58
       Reference Re. Canada Assistance Plan (BC) [1991] (CB p. 443) ........................................................................................................................... 58
    Intergovernmental Delegation .......................................................................................................................................................... 58
       Coughlin v. Ontario Highway Transport Board (1968) (CB 447) ........................................................................................................................... 59
  ABORIGINAL GOVERNANCE AND FEDERALISM [CBP.627-630] .......................................................................................................................... 59
       Frances Abele and Michael J. Prince, “Aboriginal Governance and Canadian Federalism: A To-Do List for Canada”.......................................... 61
       Jean Leclair, “Federal Constitutionalism and Aboriginal Difference” ................................................................................................................... 62
  QUEBEC AND ASYMMETRICAL FEDERALISM (CBPP.456-466) ............................................................................................................................ 63
       Reference re Secession of Quebec, [1998] 2 SCR 217; 151 DLR (4th) 385(CBp.458) ........................................................................................... 63
       Benoît Pelletier, Asymmetrical Federalism – A Win-Win Formula!...................................................................................................................... 63
PART V: HUMAN RIGHTS AND THE CANADIAN CONSTITUTION ....................................................................................................... 65
  ANTECEDENTS OF THE CHARTER.................................................................................................................................................................... 65
   Rights, Racism and Federalism (CB 644) ............................................................................................................................................ 65
       Union Colliery Co. v. Bryden [1899] A.C. 580 (P.C.). (CBp.646) ............................................................................................................................ 65
       Cunningham v. Tomey Homma, [1903] A.C. 151 (P.C.). (CBp.648) ...................................................................................................................... 65
       Bruce Ryder, “Racism and the Constitution: British Columbia Anti-Asian Legislation, 1872-1923” (CBp.650) .................................................... 66
       Quong Wing v. The King, [1914], 49 SCR 440. (CBp.651) ..................................................................................................................................... 66
    The Implied Bill of Rights ................................................................................................................................................................... 66
       Reference Re Alberta Statutes, [1938] SCR 100. (CBp.657) ................................................................................................................................. 67
       Saumur v. City of Quebec, [1953] 2 SCR 299. (CBp.662) ...................................................................................................................................... 67
       Switzman v. Elbling, [1957] SCR 285. (CBp.668) ................................................................................................................................................... 68
       AG Canada v. Dupond, [1978] 2 SCR 770. (CBp.672) ............................................................................................................................................ 69
    The Canadian Bill of Rights (1960) (CB 675) ...................................................................................................................................... 69
       R. v. Drybones (CB 677) ........................................................................................................................................................................................ 69
       AG Canada v. Lavell (CB 679)................................................................................................................................................................................ 70
       Bliss v. AG Canada (CB 680).................................................................................................................................................................................. 70

PART VI: THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS ...................................................................................................... 70
       Minister of Justice, Pierre Trudeau, “A Canadian Charter of Human Rights” ...................................................................................................... 71
       Cairns, Charter Versus Federalism: The Dilemma of Constitutional Reform, 1992 (CB 686) ............................................................................... 71
       Russell, “The Political Purposes of the Canadian Charter of Rights and Freedoms” (CB 689).............................................................................. 72
       Weinrib, “Of Diligence and Dice” (CB 693)........................................................................................................................................................... 72
       Weinrib, “Canada’s Charter of Rights: Paradigm Lost?” (CB 695) ........................................................................................................................ 73
       Gold, “The Mask of Objectivity: Politics and Rhetoric in The Supreme Court of Canada” (CB 699) ..................................................................... 73
    The Basic Framework of the Charter (Class notes 09-02-10) ............................................................................................................. 73
    The Merits of Entrenchment and the Legitimacy of Judicial Review ................................................................................................. 73
       W.A. Bogart, “Courts and Country” (1994) (CBp.701) .......................................................................................................................................... 75
       Andrew Petter, “Immaculate Deception: The Charter’s Hidden Agenda” (1987) (CBp.704) ............................................................................... 76
       Patrick Monahan, “Politics and the Constitution” (1987) (CBp.708).................................................................................................................... 76
       Lorraine Weinrib, “ ‘Limitations on Rights’ in a Constitutional Democracy” (1996) (CBp.711) ............................................................................ 77
       Alan Hutchinson, “Waiting for Coraf: A Critique of Law and Rights” (1995) (CBp.713) ....................................................................................... 77
       Peter Hogg and Alison Bushell, “The Charter Dialogue Between Courts and Legislatures” (1997) (CBp.715) ..................................................... 77
       Vriend v. Alberta (1998) SCR (CB 722).................................................................................................................................................................. 78

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  Approaches to Interpretation ............................................................................................................................................................ 78
      Hunter v. Southam [1984] 2 SCR 145 (CBp.738) .................................................................................................................................................. 79
      Gibson, “The Law of the Charter: Equality Rights” (CB 745) ................................................................................................................................ 80
THE APPLICATION OF THE CHARTER: THE STATE ACTION DOCTRINE (S. 32(1)) ...................................................................................................... 80
      Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. [1986] 2 SCR 573. (CBp.781) ............................................. 81
      McKinney v. University of Guelph, [1990] 3 SCR 229. (CBp.787) ......................................................................................................................... 81
      Godbout v. Longueuil, [1997] 3 SCR 844 (CBp.795) ............................................................................................................................................. 83
      Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624 (CBp.799) .................................................................................................... 83
      Vriend v. Alberta, [1998] 1 SCR 493 (CBp.805)..................................................................................................................................................... 84
  Application of Charter to Courts and Common Law (CBp.809) .......................................................................................................... 84
      Hill v. Church of Scientology, [1995] 2 SCR 1130 (CBp.811) ................................................................................................................................. 84
LIMITATIONS ON CHARTER RIGHTS ................................................................................................................................................................ 85
  Section 1: Reasonable Limits ............................................................................................................................................................. 85
      R. v. Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606 (CBp.751) ............................................................................................................... 86
      R v. Oakes, [1986] 1 SCR 103 (CBp.756) ............................................................................................................................................................... 86
      Edmonton Journal v. Alberta (AG), [1989] 2 SCR 1326 (CBp.764) ........................................................................................................................ 87
      Irwin Toy Ltd. v. Quebec (AG), [1989] 1 SCR 927 (CBp.766) ................................................................................................................................. 88
      Thomson Newspapers Co. v. Canada, [1998] 1 SCR 877 (CBp.768) ..................................................................................................................... 88
      RJR Macdonald Inc. v. Canada (AG), [1995] 3 SCR 199 (CBp.770) ........................................................................................................................ 88
      R v. Lucas, [1998] 1 SCR 439 (CBp.771) ................................................................................................................................................................ 88
      Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 SCR 381 (Supplement Vol.2 p.75).................................................................................... 89
  Section 33: The Override (Notwithstanding Clause) .......................................................................................................................... 89
      Ford v. Quebec (AG), [1988] 2 SCR 712 (CBp.775) ............................................................................................................................................... 89
FREEDOM OF RELIGION ............................................................................................................................................................................... 89
      Richard Moon, “The Secularization of Religious Freedom” (CBp.817) ................................................................................................................. 90
      R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295. (CBp.822) ..................................................................................................................................... 90
      Edwards Books and Art Ltd. v. The Queen, [1986] 2 SCR 713. (CBp.830) ............................................................................................................ 90
      Syndicat Northcrest v. Amselem, [2004] 2 SCR 551 (Supplement Vol.2 p.81) ..................................................................................................... 91
      Multani v. Commission Scolaire, [2006] 1 SCR 256 .............................................................................................................................................. 91
FREEDOM OF EXPRESSION ........................................................................................................................................................................... 92
      Richard Moon, “The Constitutional Protection of Freedom of Expression” (2000) (CBp.896) ............................................................................ 93
  Scope and Limits of Freedom of Expression ....................................................................................................................................... 93
      Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd., [1986] 2 SCR 573 (CBp.901) ............................................. 93
      Irwin Toy Ltd. v. Quebec (AG), [1989] 1 SCR 927. (CBp.907) ................................................................................................................................ 93
LIFE, LIBERTY AND SECURITY OF THE PERSON................................................................................................................................................... 94
      Reference re Section 94(2) of the Motor Vehicle Act (BC), [1985] 2 SCR 486. (CBp.1073) .................................................................................. 94
      R. v. Morgentaler, [1988] 1 SCR 30. (CBp.1077) ................................................................................................................................................... 95
      Rodriguez v. British Columbia (A.G.), [1993] 3 SCR 519. (CBp.1091).................................................................................................................... 96
      Gosselin v. Quebec (Attorney General), [2002] 4 SCR 429 (Supplement Vol. 2 p. 236) ....................................................................................... 97
      D. Wiseman, “The Charter and Poverty: Beyond Injusticiability” ........................................................................................................................ 97
EQUALITY RIGHTS ...................................................................................................................................................................................... 97
      M. Schwartzschild, “Constitutional Law and Equality” (1996) (CBp.1133)........................................................................................................... 98
      W. Black and L. Smith, “The Equality Rights” (1996) (CBp.1135) ......................................................................................................................... 98
      W.S. Tarnopolsky, “The Equality Rights” in Walter S. Tarnopolsky and Gerald-A Beaudoin, The Canadian Charter of Rights and Freedoms
      (Scarborough, ON: Carswell, 1982), at 399-401 (footnotes omitted) (CB 1139-1141)......................................................................................... 98
  Section 15 and Substantive Equality: ................................................................................................................................................. 99
      W.S. Tarnopolsky, “The Equality Rights in the Canadian Charter of Rights and Freedoms” (1983), 61 Canadian Bar Review 242, at 247-253
      (footnotes omitted) Casebook 1141-1143 ........................................................................................................................................................... 99
      D Gibson, The Law of the Charter: Equality Rights (Scarborough, ON: Carswell, 1990), at 42-45 (footnotes omitted) Casebook 1143-1144 .... 99
      P Hughes, “Recognizing Substantive Equality as a Foundational Constitutional Principle” (1999), 22 Dalhousie LJ 5, at 21-27, 38-39, 43-46, and
      49 (footnotes are nowhere to be found) Casebook 1145-1149 ........................................................................................................................... 99
  Early Interpretation and Application of Section 15: The Andrews Test and the 1995 Trilogy ......................................................... 100
      Andrews v. Law Society of British Columbia [1989] 1 SCR 143; 56 DLR (4th) 1 (CB1150-1155) ......................................................................... 100
  The Law Test .................................................................................................................................................................................... 101
      Law v. Canada (Minister of Employment and Immigration), [1999] 1 SCR 497. (CBp.1162) .............................................................................. 101
      Eldridge v. British Columbia (A.-G.), [1997] 3 SCR 624. (CBp.799 and 1181) ..................................................................................................... 102
      Colleen Sheppard, “Of Forest Fires and Systemic Discrimination” (2001) (CBp.1190) ...................................................................................... 103
      Diane Pothier, “Connecting Grounds of Discrimination to Real People’s Experiences” (2001) (CBp.1194) ....................................................... 103
      Corbière v. Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203. (CBp.1197) .......................................................................... 103
      Lovelace v. Ontario, [2000] 1 SCR 950. (CBp.1213) ............................................................................................................................................ 104
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     R. v. Kapp – Back to the Andrews Test ............................................................................................................................................. 105
        R. v. Kapp (Exerpts) (2008), 79 BCLR (4th) 201, 2008 SCC 411 ........................................................................................................................... 105
        Gosselin v. Quebec (Attorney General), [2002] 4 SCR 429 (Supplement Vol. 2 p. 236) ..................................................................................... 106
        Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 SCR 76 (Supplement Vol. 2 p. 249) ............... 106
        Hodge v. Canada (Minister of Human Resources Development), [2004] 3 SCR 357 (Supplement Vol. 2 p. 252) .............................................. 107
        Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 SCR 657 (Supp. Vol. 2 p. 257) ................................................. 107
  LANGUAGE RIGHTS .................................................................................................................................................................................. 107
        A. Braën, “Language Rights” (1987) (CBp.1222)................................................................................................................................................. 107
        P.A. Coulombe, “Language Rights in French Canada” (1987) (CBp.1224) .......................................................................................................... 108
        Mahe v. Alberta, [1990] 1 SCR 342. (CBp.1239) ................................................................................................................................................. 109
        Ford v. Quebec (AG), [1988] 2 SCR 712. (CBp.1253) .......................................................................................................................................... 109
  REMEDIES: ENFORCEMENT OF RIGHTS ......................................................................................................................................................... 110
    Section 52: “Supremacy Clause” ...................................................................................................................................................... 110
    Section 24: Remedies which are “appropriate and just in the circumstances”................................................................................ 110
        K. Roach, Constitutional Remedies in Canada (CBp.1264) ................................................................................................................................. 110
        Schacter v. Canada 2 SCR 679 [CB 1267] ............................................................................................................................................................ 110
        Vriend v. Alberta [1998] 1 SCR 493 [CB 1277] .................................................................................................................................................... 111
        Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 SCR 3, 2003 SCC 62 ................................................................................... 111

PART VII: ABORIGINAL RIGHTS ...................................................................................................................................................... 112
     History of Aboriginal Rights (Class Notes) ....................................................................................................................................... 112
        R v. Sparrow, [1990] 1 SCR 1075 (CB p.532)....................................................................................................................................................... 113
        R. v. Van Der Peet, [1996] 2 SCR 507 (CB p.545) ................................................................................................................................................ 114
        R. v. Gladstone, [1996] 2 SCR 723 (CB p.565) ..................................................................................................................................................... 114
        R. v. Sappier, [2006] 2 SCR 686 (Supplement Vol. 1 p. 42) ................................................................................................................................. 115
        Mitchell v. Canada (Minister of National Revenue – M.N.R.), [2001] 1 SCR 911 ............................................................................................... 115
        Jean Leclair, Federal Constitutionalism and Aboriginal Difference (2006) 31 Queen’s L.J. 521 at 521-29 ......................................................... 117
     Métis Rights ..................................................................................................................................................................................... 117
        R. v. Powley, [2001] 2 SCR 207 (Supplement Vol. 1 p. 35) ................................................................................................................................. 117
     Duty to Consult ................................................................................................................................................................................ 118
        Haida Nation: ..................................................................................................................................................................................................... 118
        Taku River Tlinglit First Nation v. British Columbia (Project Assessment Director) 2004 ................................................................................... 118
        Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) [2005] ................................................................................................... 118

PART VIII: CONSTITUTIONAL RENEWAL AND REFORM .................................................................................................................. 119
  AMENDING THE CONSTITUTION .................................................................................................................................................................. 119
   Process ............................................................................................................................................................................................. 119
   Attempts at Constitutional Reform .................................................................................................................................................. 119
        Simone Chambers, “New Constitutionalism: Democracy, Habermas, and Canadian Exceptionalism” .............................................................. 121




                                                                                                             5
                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 6


Part I: Introduction
Casebook pp. 3-11
         Structures, procedure, and powers of governmental institutions
         Nature and scope of individual rights and responsibilities in the face of public power
         Relations between collectivities and between collectivities and government (e.g. Aboriginal peoples and Canadian state)
         Protection of individual rights against the exercise of private power
         Imposition of economic and social obligations on the state


Elements of Canadian Constitution
         Parliamentary democracy
                o     Laws made by elected legislature
         Federalism
                o     Division of government along territorial lines
         Individual rights
                o     Claims of citizens against the state
         Aboriginal rights
         Rule of law
                o     Governments’ exercise of power according to law rather than in an arbitrary manner
         Constitutional conventions
         Up until 1982: legislative supremacy
                o     Tempered by federalism and the Charter – limits on legislative power


Sources of Canadian Constitutional Law
WRITTEN SOURCES                                                                      UNWRITTEN SOURCES
Legally binding and subject to amendment procedures specified in Constitution        Less legally binding, not subject to strict amendment procedures
Act, 1982
1. Constitution Acts, 1867 [CA1867] and 1982 [CA1982]                                3.   Common Law Principles
          Starting point for all constitutional law cases                                    Stare decisis, articulated by judges
2. Fundamental Constitutional Principles (sometimes also referred to as                       Can be revised by statute
      unwritten)                                                                     4.   “Organic” or Important Statutes
          Logically derived from the text of the Constitution Acts                           Fill out structures and frameworks of governance
          First articulated in the Quebec Secession Reference (federalism,                   E.g. Citizenship Act, Supreme Court of Canada Act, Canadian Bill of
           democracy, rule of law, minority rights)                                            Rights (1960)
          Not exhaustive – others may be articulated later (e.g. judicial                    Take precedence over other, inconsistent laws
           independence)                                                                      Known as “quasi-constitutional” – trump contract law and common
                                                                                               law
                                                                                     5.   Historical Documents (Imperial Actions of Britain, other important pre-
                                                                                          Confederation documents)
                                                                                              E.g. Royal Proclamation (1763), treaties between the Crown and
                                                                                               Aboriginal peoples
                                                                                     6.   Constitutional Conventions
                                                                                              Further filling in of gaps – e.g. “responsible government” – at the time
                                                                                               of writing of CA1867, these processes were already governed by
                                                                                               conventions based on British tradition
                                                                                              Unenforceable by the courts – political rather than legal

Evolution of Sources (CB pp. 5-8)
    Common law – precedent – judge-made law
    Ordinary statutes trump common law rules
    Conventions that have developed from government practice – politically, rather than legally, enforced
    Actions by British Crown and Parliament
          Royal Proclamation (1763), Quebec Act (1774), BNA Act (1867)
          Terms of union for provinces joining confederation
          BNA Act – original intention: to provide a measure of self-government to a British colony – explanation for why so many elements were left unwritten
          Statute of Westminster (1931) – provided that no British statute would apply to Canada unless enacted at the request of Canada (except BNA Act)
    Abolition of appeals to the Judicial Committee of the Privy Council (JCPC)
    Growing pressure for constitutional reform, talks about an amending formula, starting in 1960s
    Canada Act 1982 and Constitution Act 1982 – introduction of the Charter, recognition of Aboriginal and treaty rights, supremacy clause
          Quebec did not agree with the Constitution Act
               Meech Lake and Charlottetown Accords – both proposed constitutional amendments, neither was successful


Constitutional Change (CB pp. 8-9)
    Amendment procedures laid out in Part V of CA1982 – slow and difficult process
    Other mechanisms for constitutional evolution: judicial interpretation, use of taxation and spending powers
                                                                                 6
                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 7

    Evokes questions of conflicting values: stability vs. flexibility

NOTE re. Reference Procedure: The Supreme Court of Canada Act allows the cabinet to present reference questions to the Supreme Court. Technically, the advisory
opinion expressed is not binding, but in practice it is treated as having significant precedentory value. See Lalonde v. Ontario (Commission de restructuration des
services de santé (2001), 56 O.R. (3d) 505 (Cont. C.A.) (excerpt)

Reference re Secession of Quebec, [1998] 2 SCR 217.
Issues        The federal government asked the SCC to rule on the legality of a potential unilateral secession by Quebec, (1) under the Canadian constitution, and (2)
              under international law. The Quebec government refused to take part, and the amicus curiae appointed to represent the case for secession argued that
              the case was not justiceable.
Holding       The court unanimously found that the case was justiceable, and went on to rule that neither the Canadian constitution nor international law provided
              for Quebec’s unilateral secession. However, it also found that in the event that a clear majority of Quebeckers voted “yes” to a clear question about
              secession, the federal government and the other Canadian provinces would be obliged to negotiate constitutional changes with Quebec.
Reasoning     1. There was no explicit answer in the text, so the SCC used a structural approach. It began by giving a plotted history of Confederation, emphasizing its
              voluntary nature, the balancing of regional interests, and how the federal-provincial arrangements had been devised. It said, “The vision of those who
              brought about Confederation was to create a unified country, not a loose alliance of autonomous provinces.”
              It then went on to describe four “underlying principles,” which it called the “lifeblood” of the constitution (it said this list was not exhaustive):
                   Federalism: The SCC applauds both the “democracy” and “community” aspects of federalism, noting how it has given Quebec significant
                    autonomy.
                   Democracy: The SCC says that democracy means more than majority rule; it has an “institutional” and an “individual” aspect. It drew on the
                    principles laid out in Oakes. Interpreted by the court to mean process of representative and responsible government and the right of citizens to
                    participate in the political process as voters and as candidates.
                   Constitutionalism and the rule of law: “The law is supreme over the acts of both government and private persons. There is, in short, one law for
                    all.” There needs to be an order of positive law which reflects the normative order. And the relationship between the state and the individual
                    must be regulated by law. Constitutions are entrenched beyond the reach of simple majority rule in order to safeguard human rights, protect
                    minorities against assimilation, and divide power between different levels of government.
                   Protection of minorities: The fact that many of Canada’s regimes for protecting minority rights arose out of historical compromises does not
                    detract from the principle behind them. Although “Canada’s record of upholding the rights of minorities is not a spotless one,” it has been the
                    goal all along.
              The court emphasized also that none of these principles is absolute to the exclusion of the others.
              2. The international law questions are have to do with balancing principles of “territorial integrity and political unity” with the “right of self-
              determination of all peoples”: they are really interesting but beyond the scope of this course.
Ratio         Underlying principles of Canadian Constitution: Federalism, Democracy, Constitutionalism and the rule of law, and Protection of minorities.
Comments                  The Supreme Court’s decision in QSR was based on one particular reading of history—it’s important to be aware of the other readings.
                          It’s also worth noting that the QSR was a reference initiated by the federal government, that the Quebec government refused to take part,
                           and that the amicus curiae arguing in place of Quebec argued that the issue was not “justiceable.” Nevertheless, the decision was signed by
                           “the court.”



Minority Rights: Precedent and Innovation
          There are specific constitutional provisions for the protection of minority language and education rights (French and English), and rights for religious
           minorities (Catholic and Protestant)
          These are the product of historical compromises made throughout the early development of Canada

Lalonde v. Ontario (Commission de restructuration de services de santé (2001), 56 O.R. (3d) 505 (Ont. C.A.) (excerpt)
Facts        The Commission de restructuration de services de santé wanted to cut services at Montfort Hospital. Montfort was not only the only francophone
             hospital in Ontario, but also a training hospital for French-speaking health care professionals. The Divisional Court ruled that the directives of the
             Commission should be quashed because they went against the unwritten constitutional principle of respect for and protection of minorities. The
             Commission appealed, saying that the constitution had already articulated the extent of minority rights, and its actions were within the limits of the
             constitution.
Issues       How is the unwritten constitutional principle of respect for and protection of minorities relevant in this case? Can the Commission’s directives be
             reviewed under this principle?
Holding      Divisional Court’s ruling held. Commission’s directives quashed.
Reasoning               Respect for minorities is one of four fundamental and organizing constitutional principles enumerated in the Quebec Secession Reference. In
                         ignoring Montfort’s status as a provider of vital health services in French, the Commission was ignoring the constitutionally-protected rights
                         of the francophone minority.
                        The Commission’s mandate, dictated by statute, was to act in accordance with the public interest, and because the Commission was unable
                         to show that their directives to close Montfort were more important to the public interest than the preservation of the cultural and
                         language rights of the francophone minority, the violation of this right could not be allowed.
Ratio        The unwritten principle of protection of minorities is a binding, substantial legal provision, and government bodies acting under Statute may not
             disregard this principle when making decisions about vital minority cultural institutions.
Comments                This decision may have turned out differently if the Commission had justified its decision to close Montfort using other, strong principles
                         that are supported by the constitution.




                                                                                   7
                                                                                               Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009         p. 8


Antecedents of the Charter (CB pp.633-644)
    Rights did not appear in the constitution at the moment the Charter was enacted – Macdonald believed that individual rights were at the heart of the British
     constitution, with liberty being the fundamental right
    Federalism also intended to protect rights
    Rule of law principle derived from the British system



The Rule of Law Power
    This principle prevents the abuse of power by public officials by maintaining that all government action must be rooted in and bound by law
    The fact that executive power is “vested in the Queen” (s.9, CA1867) is misleading. “The Crown” includes the queen, the governor-general, the prime minister,
     the cabinet, the civil service, the armed forces, the police: all of the executive branch.
          The Crown has constitutional powers as well as statutory powers.
    The rule of law incorporates three principles:
          “law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power”
          It “requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative
           order”
          “the relationship between the state and the individual *must be+ regulated by law”

A.V. Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 1885), at 167; Casebook pp. 634
     Rule of law, characteristic of the English constitution, has three meanings:
      1. “...no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner
           before the ordinary Courts of the land.”
      2. “…not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the
           ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.”
      3. “…the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty,
           or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the
           Courts”

    Rule of law was essentially a common law right – judge-made rule, not codified, but established through precedent. This is in keeping with the general trend in
     common law to favour personal liberty, individual rights over community interests.

W. Kaplan, State and Salvation: The Jehovah’s Witnesses and Their Fight for Civil Rights (Toronto: University of Toronto Press, 1989); Casebook pp. 636
   Background to conflict between Jehovah’s Witnesses and Catholic majority in Quebec after WWII
   Distribution of inflammatory leaflets by Jehovah’s Witnesses offended and angered many Quebeckers – they were persecuted as a result. Many were arrested
    and thrown in jail. Many by-laws were passed and struck down as interfering with free worship.
   Duplessis launched a “war without mercy” on the JWs – arrests for charges ranging from disturbing the peace to sedition. Roncarelli is a landmark case in
    establishing limits on powers of state officials vis-à-vis individual rights.

Roncarelli v. Duplessis, [1959] SCR 121; 16 DLR (2d) 689.
Jurisdiction Quebec
Facts         The Jehovah’s Witnesses were distributing anti-Catholic pamphlets in Quebec and authorities there were arresting them and having them jailed.
              Roncarelli, a Jehovah’s Witness restaurateur, did not take part in the pamphleting, but helped bail over four hundred JWs out of jail. Premier Duplessis
              of Quebec intervened personally to prevent his liquor license from being renewed.
Issues        Was the Liquor Commission entitled to use its “discretion” to deny Roncarelli a license? Was it within Duplessis’s rights to intervene?
Holding       No!
Reasoning     While the Liquor Commission had a statutory right to use its discretion, it had to do that with good faith and within the confines of its statutory duty.
              Likewise, Duplessis was acting outside his role as premier when he intervened personally in a private case. He could therefore be held personally
              responsible.
Ratio         All public officials must act in accordance with the law, and must use their powers as they were intended to be used.
Comments      This case is used to illustrate the principle of “rule of law.” See Casebook pp.636-644 for its treatment of the case and for a brief account of the social
              context by W. Kaplan
                   This case also illustrates the importance of an independent judiciary who can stand up to powerful forces in the community
                   The limits of administrative “discretion” – it must be used in the spirit of the statute, in good faith, without corruption or fraud – “there is no such
                    thing as absolute and untrammelled ‘discretion’”
                   “Malice in the proper sense is simply acting for a reason and purpose knowingly foreign to the administration” (p. 643)

British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473.
Facts        The Tobacco Damages and Health Care Costs Recovery Act set out rules for litigation regarding lawsuits made against tobacco companies. These rules
             reversed the burden of proof (“reverse onus provision”), making it easier for the government to win in tort claims for the health care costs of illnesses
             related to tobacco products. The tobacco companies sued the BC government, arguing that the legislation was unconstitutional on the grounds of 1)
             federalism (province operating outside its jurisdiction – succeeded at trial, reversed on appeal); 2) judicial independence (this legislation interfering
             with judicial independence because it tells the judges what to say – this argument was rejected; that is the point of legislation); 3) rule of law (our
             interest is with this third argument)
Issues       Did the Tobacco Damages and Health Care Costs Recovery Act violate the rule of law?
Holding      No. Act upheld.  B.C.
Reasoning    Appellants’ views of the rule of law would result in judicial powers that are too wide. Enforcing this view of the rule of law would go against democracy
             (because the legislature is democratically elected and represents the interests of the voting public). This legislation does not violate any written
                                                                                   8
                                                                                                Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009           p. 9

              provisions in the constitution, and is therefore valid. It is up to the voting public to decide whether or not this legislation is in their interests or not, not
              up to the courts.
Ratio         The courts cannot prevent legislative actions using the principle of the rule of law if there is no breach of other constitutional provisions.
Comments                 In this case, the court pulled back on the scope of the “Rule of Law” principle, so as not to undermine the process of judicial review by
                          exercising its powers too widely.
                         Question: How, and to what extent, is this case inconsistent with Lalonde?

British Columbia (Attorney General) v. Christie, 2007 SCC 21
Facts        The Social Services Tax Amendment Act (No. 2), 1993 imposed a 7% tax on legal services. Christie, a lawyer who worked with underprivileged clients,
             took BC to court on the grounds that this Act breached the constitutional principle of rule of law as referred to in the preamble to the CA1982 because
             it violated a fundamental constitutional right of access to justice, enumerated in CA1982 S.10(b).
Issues       Does the Act in question violate Section 10(b) of the CA1982?
Holding      No. Appeal dismissed.  B.C.
Reasoning    There is no constitutional basis for this claim. To claim that according to the rule of law everyone has the right to a lawyer in any case (rather than just
             in a criminal case, as articulated in S. 10(b)) would open the floodgates and overwhelm the system.
Ratio        Rule of law principle does not extend so far as to allow all citizens access to a lawyer in all cases.
Comments Question: was this the right way to frame this case? Perhaps Christie would have had a better outcome if he had framed the case in terms of negative
             rights (right not to have the government take away the ability of underprivileged clients to seek legal assistance) rather than positive rights (everyone
             has the right to legal assistance)

Mack v. Canada (Attorney General), [2002] O.J. No.3488 “The Chinese Head Tax Case” – OPTIONAL READING
Jurisdiction Ontario
Facts        The government of Canada charged Chinese immigrants a head tax in the early 20th century. They were never compensated for this.
Issues       1. Were the immigrants’ equality rights (under the Charter) violated?
             2. Was the legislation at the time contrary to customary international law?
             3. Could the tax be described as unjust enrichment?
Holding      no, No, NO!
Ratio        1. The Charter cannot apply retroactively.
             2. Other countries discriminated at the time, and domestic law trumps international.
             3. Unjust enrichment does not apply if there is a “juristic reason,” i.e., a law, as in this case.
Comments     Prof. Sheppard wonders if they could have succeeded by arguing on the basis of the underlying principles of protection of minorities and rule of law as
             defined by the Quebec Secession Reference. After all, the Provincial Judges Reference had ruled that underlying principles gave rise to binding law. The
             federal government would probably argue that such principles are not justiciable.



Constitutional Conventions
     Constitutional conventions are practices which are not enforceable by the courts, but which carry political ramifications if ignored by politicians. These
      conventions may or may not be consistent with the written provisions of the Constitution.
     Examples: Governor General/Queen call the majority party to govern; PM and Cabinet sworn in by the Governor General; the convention of Responsible
      Government – government must have the confidence of the houses of parliament, and must step down in the event of non-confidence; Governor General and
      Queen have no power in practice
In-class discussion:
      1. How do you prove a convention?
                     Conventions evolve as political practices become entrenched in the political culture, until they cannot be avoided without serious political
                      consequences
                     It is not quite clear what these consequences are
      2. How do conventions differ from principles?
                     Principles are ideas (e.g. “federalism”); conventions are actions (e.g. seeking provincial consent before enacting federal legislation that will
                      affect the province)
                     Principles are rooted in ideals; conventions are rooted in pragmatism
                     Principles don’t change; conventions may change
                     Principles are derived from the text; conventions are derived from custom
                     Principles are legally binding; conventions are not
      3. Are these conventions consistent with the rule of law?
                     Usually, they are – the run parallel to the rule of law
                     They may conflict with the rule of law when they defy the written text, especially CA1867 (e.g. the disallowance power of the Governor General
                      and the Queen must be upheld by the courts, even though enforcing this would be disastrous for the political functioning of Canada)
      4. If principles exist, are conventions necessary?
                     Yes, conventions are necessary, because they dictate the practices that come from the principles articulated in the constitution
                     They are also necessary to protect the institutions of Canada from out-dated constitutional provisions (e.g. disallowance)

Reference Re Amendment of the Constitution of Canada (Nos. 1, 2 and 3) “The Patriation Reference”, [1981] 1 S.C.R. 753 (excerpts).
Facts       Reference procedure by provincial legislatures (Newfoundland, Manitoba, and Quebec)
Issues      Is it a constitutional convention that federal parliament will not request an amendment to the constitution regarding federal-provincial relationships or
            provincial powers, rights, or privileges without the unanimous assent of the provinces?
Holding     Yes. (6-3)
Reasoning   MAJORITY:
                                                                                      9
                                                                                           Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 10

              Many aspects of the functioning of our political system are nowhere to be found in the “law of the constitution,” that is, the written provisions of the
              Constitution Acts or laws and statutes that have constitutional significance. These are called “conventions”. Conventions serve the purpose of ensuring
              that the legal framework of the constitution will be operated in accordance with the prevailing constitutional values or principles of the period. These
              conventions are usually unwritten, but may be expressed in the preamble to certain statutes and in documents relating to government proceedings.
              They are not enforced by the courts.
                         Not judge-made rules
                         Not recorded in any source of law
                         They may even be in conflict with certain legal rules. If they are ever brought to court, the court must enforce the written rules over the
                          conventions.
              For example, the Queen/Governor General has the power to veto a bill. A court must refuse to recognize the validity of a vetoed bill. The remedy for
              violations of conventions is political, not legal.
              Conventions are customary law – they are normative. Not only are they widely used, but their users consider themselves bound by them, even though
              no positive law exists to enforce them.
              No government has ever requested an amendment to federal-provincial powers. This suggests that a convention may exist. In the past, any provincial
              dissent when this question has come up has resulted in the proposed amendment not being made. The court recognizes that there is a valid
              constitutional reason for the requirement of provincial acceptance of any amendment affecting provincial powers, but goes on to say that it would have
              to enforce any such amendment made, whether or not the provinces unanimously accepted it. The remedy for an amendment that violated a
              constitutional convention is not in the court.

              DISSENT:
              Conventions cannot be given the same weight as written constitutional principles. In order for them to become legally enforceable, they must pass into
              positive law. There are some conventions, such as responsible government and the calling of the leader of the majority in parliament to the position of
              Prime Minister. These are clear, definable, and understood. The question of whether or not provincial participation in the amendment process is
              necessary does not have the same clarity and definability that the government practices mentioned above have. Because the extent of provincial
              participation in amendments relating to provincial powers has not been clearly defined, it is not a “convention”.
Ratio         Constitutional conventions are not enforced by courts. Their violations are sanctioned politically, not legally.
Comments      It is bizarre that this question was referred to the court, when it is not at all in the court’s domain.


Imperial Statutes
    Royal Proclamation, 1763
    Quebec Act, 1774
    Constitutional Act, 1791
    Lord Durham’s Report  Union Act, 1840
See Historical Developments and Perspectives, p. 11, for more information about Imperial Statutes




                                                                                 10
                                                                                           Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 11

Hogg, Constitutional Law of Canada (2007) sections 2.6, 3.1-3.4

2.6
          from early colonial times Westminster Parliament could make laws for UK, and for overseas territories of the British Empire
          when acting re: overseas territories it was called the Imperial Parliament – its enactments called Imperial Statutes
          in any colony there were two classes of statues in force:
                      1. Domestic/received statutes of the UK
                                 these were in force in England at the colony’s reception date – applied by virtue of settlement, conquest, or adoption.
                                 enacted to govern UK affairs – never intended to be applied elsewhere
                                 like CML, these statutes could be amended by the colonial legislature
                      2. Imperial statutes in force ex proprio vigore
                                 statutes passed to govern affairs of colonies
                                 applies by virtue of their own force
                                 they were valid whether they applied in England or not
                                 cannot be amended by the colonial legislation
                                 this was a way for the imperial power to keep control over a colony – the power remained until the imperial Parliament chose to
                                  remove it

3.1 How Canada became free from imperial power of the Parliament at Westminster:
         BNA did not immediately create an independent country
         British government still had control of the colony as a whole, allowing it to invalidate Canada’s statutes, appoint a governor-general, prevent Canada from
          enacting statutes repugnant to an imperial statute
         British Empire evolved into a Commonwealth, and the colonies within it into independent states – the above limitations no longer remain.

3.2 Colonial Laws Validity Act, 1865
          BNA Act was an imperial statute
          Colonial Laws Validity Act, 1865 defined an imperial statute as “Act of Parliament (Westminster) extending to a colony”, and said it only applied to the
           colony if it was made applicable “by the express words or necessary intendment”
          Act intended to extend the powers of colonial legislatures, but it left colonial legislatures unable to alter imperial statutes which applied to the colony
          To alter, colony had to persuade imperial Parliament to enact the required law
          BNA Act enacted 1867 – s.129 gave provincial legislatures, and federal parliament power to abolish or alter pre-confederation laws. But, this power was
           restricted by the Colonial Laws Validity Act, to prevent abolishment, alteration of laws that came from the Parliament of UK.

3.3 Statute of Westminster, 1931
          1926, two events made Canada anxious to escape from the sovereignty of the imperial Parliament
                       1. King-Byng dispute
                       2. decision in Nadan v. The King (JCPC struck down a federal statute purporting to abolish appeals to the Privy Council in criminal cases)
          Canada, and other countries’ concerns led to the “imperial conferences” – from these the 1926 “Balfour Declaration” which stated that dominions were
           equal in status to the UK
          From this concept came the Statute of Westminster, 1931
                 o     stated no statute of the UK would extend to a dominion “unless it is expressly declared in that Act that the dominion has requested, and
                       consented to, the enactment”
                 o     imperial Parliament can enact statutes applying to dominions ONLY when the dominion concerned has requested and consented
          for reform it was also necessary to increase powers of the dominion to amend or repeal imperial statutes which applied to them:
                 o     Statute of Westminster s.2 granted this power
                 o     s.7 limited the power by stating “nothing in this Act shall be deemed to apply to the repeal, amendment, or alteration of the BNA Acts, 1867 to
                       1930, or to any order, rule or regulation thereunder.”
                 o     s.7 was needed to protect the BNA Act since it was no longer protected simply by virtue of being an imperial statute

3.4 Canada Act 1982
          last imperial statute – Canada Act, 1982
          Canada Act, 1982 repealed s.7 of the Statute of Westminster – but BNA Act still not subject to amendments like ordinary legislation – protected s.52 of the
           Constitution Act, 1982 which states
                      “ 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.”
          Canada Act, 1982 also repealed s. 4 of the Statute of Westminster, which formally terminated UK Parliament’s authority over Canada. This couldn’t be
           done in 1931 by Statute of Westminster for 2 reasons:
                      1. in 1931 it was widely believed by constitutional lawyers that a sovereign Parliament could not abdicate any part of its sovereignty
BNA Act lacked any general procedure for its amendment within Canada so the UK power had to remain since the UK Parliament was the only body with legal
authority to amend the BNA. This was eliminated in 1982 when the Constitution Act set out procedures for amending all parts of the Canadian Constitution.




                                                                                 11
                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 12


Part II: The Role of Judges
Judicial Review and the Canadian Court System
The Canadian Court System
                                                              SUPREME COURT OF CANADA




    Court Martial Appeal Court                     Provincial Courts of Appeal                       Federal Court of Appeal



                                                                                                                                    Tax Court
                                                  Provincial/Territory Superior
                                                              Court
                                                                                                          Federal Court


                                                 Provincial Inferior Court



           Military Court

                                            Provincial Administrative Tribunals
                                                                                                     Federal Administrative
                                                                                                           Tribunals



  Section 96 courts – appointed by Governor General


  Section 92(4) courts



Section 96, 92(4) and Administrative Tribunals
    Inferior courts appointed by provinces – s. 92(4) [CA1867]
          Child custody
          Traffic law violations
          Small claims
          Young offenders
          Regulatory offences
    Administrative tribunals: different statutes define different appeal processes for each one.
          There can be confusion over whether these belong to the executive or the judicial branch.
          In theory, these tribunals are cheaper, faster, more accessible, and can apply specialized expertise.
          Provincial governments that establish them often try to include controversial “privative clauses”.
    s.101 [CA1867] established the federal government’s right to create other courts to facilitate the administration of laws
    Legislatures cannot set up administrative tribunals and insulate them completely from judicial review. Most “privative clauses” which attempt to do this have
     been struck down or interpreted very narrowly. (e.g. Crevier case p. 501).
          Such legislation, it is said, would create a s.96 court.
          Nevertheless, the SCC will often defer to administrative tribunals and will not quash their decisions unless they are patently unreasonable.
Appeals
    Leave to appeal to the SCC can arise in a number of ways:
          As of right: in criminal cases where there is a dissenting opinion on a matter of law at the provincial court of appeal
          At the court’s discretion: on matters that it deems to be of national importance.
    The federal court system has limited jurisdiction over federal matters such as income tax and immigration.
    Part VII, ss.96-101 [CA1867] establishes the federal-provincial division in the judiciary.


Judicial Review and the Legitimacy Issue (CB pp. 29-31)
         Constitutional judicial review is the idea that any act or law of the state or government, or of a legal actor (e.g. RCMP) can be assessed by judges as to its
          constitutional validity. This must be contrasted with administrative judicial review, which deals with the question of whether government officials are
          acting within their authority, especially their statutory authority (as in Roncarelli v. Duplessis).
         Power set out formally in s.52 CA1982, though it existed in practice long before
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                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 13

         Question re: the legitimacy of judicial review:
              o     Many cases where the challenger and the government each have plausible arguments supported by the constitution
              o     Appointed judges can rule and declare actions of democratically elected officials of no force


The Independence of the Judiciary (CB pp. 503-507)
    Judicial independence requires, among other things: financial security (pay), security of tenure, immunity from lawsuits, a system of appointment (although
     this cuts both ways), freedom from political interference, and institutional independence.
    Integrity of the constitution is dependent on the integrity of the judicial branch
          S.96, 101 CA, 1982 focused on producing the greatest legitimacy for he judicial branch
          S.100 CA, 1867 provides judges’ salaries and benefits be fixed by Parliament
          SCC elaborates on this principle in Beauregard v. Canada questioning the validity of s.29.1 (an amendment to the Federal Judges Act requiring new judges
           to pay into their pensions, reducing their salaries). SCC rules that s.100 CA, 1867 secures federal jurisdiction over remunerative benefits so long as there is
           no colourable or improper purpose. No such purpose was found in this case, so the SCC ruled it did not offend judicial independence.

Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3. (excerpts) (CBp.504)
Facts          This reference question was raised in response to three controversial decisions regarding judges’ salaries:
                    In P.E.I., the provincial government had asked the Court of Appeal to rule on its reduction of judges’ salaries.
                    In Alberta, criminal defendants challenged judges’ salary cuts based on s.11(d) *CA1982+.
                    In Manitoba, the provincial judges’ association challenged the decision.
Issues         Does S. 11(d) [CA1982] extend to judges in matters not criminal in nature? Does the reduction of judges’ salaries as part of across-the-board salary
               cuts compromise judicial independence? Does the principle of judicial independence extend to the judges of provincially appointed courts?
Holding        Yes, possibly, and yes.
Reasoning      Lamer CJC: s.11(d) of CA1982 gives Canadians accused under the Criminal Code “the right to be presumed innocent until proven guilty according to
               law in a fair and public hearing by an independent and impartial tribunal.” Because judges hear all kinds of matters, not only criminal matters, it is
               reasonable to extend the guarantee of judicial independence and impartiality to all matters that come before the judiciary.
                          Impartiality is “a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case”
                          Independence focuses on the status of the court/tribunal. Tribunals must be free from pressure by other branches of government.
                          Le Dain J added that the court or tribunal must also be reasonably perceived as independent (reasonable person standard)
               3 core characteristics of judicial independence (also described in Valente)…
               Taken together, these distinct facets constitute judicial independence
                          Security of tenure
                          Financial security
                          Administrative independence
               … which each have 2 dimensions
               Indicate which entity (individual judge or the court/tribunal to which he belongs) is protected by a particular core characteristic
                          Individual independence of the judge
                          Institutional/collective independence of the court or tribunal
               Judicial salaries can be reduced as part of an overall economic measure, but only within certain limits. It must be subject to a special process which
               is independent of political manipulation, objective, and effective (independent commissions must assess judges’ salaries, and governments should
               follow these reports unless they have a “legitimate” reason not to). The judiciary may not be permitted to negotiate its salaries. Remuneration must
               not fall below a certain level.
Ratio          Lamer CJC found there were gaps in the protection granted to provincial court judges. This reference affirms judicial independence as an
               “unwritten principle”. The principle of judicial independence applies to judges in both federally appointed (s. 96) courts, as well as provincially
               appointed (s.92(4)) courts and tribunals. It applies to both civil and criminal matters. Judicial independence requires security of tenure,
               administrative independence, and financial security, and has both individual and institutional dimensions.


Triggering Judicial Review and Procedural Issues (CB pp. 46-51)
HOW CONSTITUTIONAL ISSUES GET TO COURT:
1. Ordinary Litigation and the Rules of Standing:
        Raised in the course of on-going civil or criminal proceedings, in ordinary litigation between private parties
        Rules of standing – determine who has sufficient interest in a legal issue to be allowed to raise it before a court
        Traditional CML standing rules used the “special prejudice test” which required the individual’s own interests be directly affected by the law being
         challenged in a way that was different than the public at large
        Private citizens were not seen as appropriate parties to bring public matters to courts
        A trilogy of cases [Thorson v. AG Canada (No.2), Nova Scotia Board of Censors v. McNeil, Minister of Justice of Canada v. Borowski] changed this, and there
         is now a “public interest standing” to be granted at the discretion of the courts
2. Reference Procedure:
        Governments are allowed to refer important legal questions, including constitutional issues, directly to an appellate court for an advisory opinion.
        Provincial cabinets to provincial appellate courts, federal cabinet to the SCC
        Federal reference power outlined in s.53 Supreme Court Act states that courts must answer reference questions
        In theory these decisions don’t carry the same weight as decisions made through litigation, but in practice reference cases are considered as authoritative
         as other court judgments.

B. NOTICE REQUIREMENTS
          Governments have huge interest in constitutional challenges to their legislation, but when constitutional issues arise in purely private litigation there is a
           danger that the issues may not be fully canvassed. Ex. often cited Russell v. The Queen
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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 14

          In response to this concern constitutional notice requirements have been in place since late 19th century – they require litigants to notify the affected
           attorneys general of constitutional issues raised in the courts

C. PARTIES AND INTERVENERS
           Participation in constitutional litigation is primarily confined to the parties of the litigation (except in Reference cases which tend to be of more public
            concern)
           In cases where a private party has challenged legislation directly, the AG is the responding party
           When AG intervenes in litigation between private parties (due to notice of constitutional question) s/he takes status of intervener and may make written
            or oral submission on the constitutional issues
           Other interested persons may apply to the court to be allowed to be interveners. Intervention governed by s.18 Rules of the Supreme Court of Canada


The Judicial Function (CB pp. 469-471)
          Part VII CA, 1867 contains provisions dealing with the judiciary
          These provisions are essential in ensuring maintenance of the rule of law

Court Structure:
          S.92(14) CA, 1867 – provinces are responsible for the administration of justice in the province, including “the constitution, maintenance, and organization
           of provincial courts, both of civil and criminal jurisdiction”
                 o     This includes superior courts – judges appointed by GG under s.96 CA, 1867
                 o     Inferior courts – judges appointed by the province under s.92(4) CA, 1867
          S.96, 98 CA, 1867 set out process for appointment to superior, district, county courts (“s.96 courts”)
          S.99 – superior court judges shall hold office on good behaviour until age 75, but are removable by GG on address of the Senate and House of Commons
          S.97, 98 – recognizes Canada as CVL and CML – requires QC courts have QC judges
          S.101 – parliament may constitute, maintain and organize “a general court of appeal for Canada,” as well as “additional courts for the better
           administration of the laws of Canada.”


Perspectives on Legal and Constitutional Interpretation (CB pp. 31-46)
          Assessing validity of judicial review: it is important to consider how judges interpret a written constitution. What sources do they use, and how do they use
           these sources?




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                                                                                          Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 15

Robin Elliot, “References, Structural Argumentation and the Organizing Principles of Canada's Constitution” (CBp.32)
Elliot summarizes six forms of constitutional interpretation used by American courts, as identified by American scholar Philip Bobbitt:
1. Historical: “Framers’ intent” approach, or “originalism” in the USA
               Used in Persons case – JCPC distinguished between framers’ intent for statutes (fixed meaning) and for constitution (“living tree” approach)
               Interpretation based on intent of the draftsmen of the constitution and the people who adopted the constitution
               Also called “frozen rights” in Canada
               Viewed as having little persuasive force except in certain circumstances relating to the meaning of certain provisions
               Problems:
                      How to ascertain? Whose intent (there were many conflicting intents at the time of drafting)?
                      What level of broadness to assign?
                      Interpretation according to views at the time of adoption, or extrapolated into the future?
2. Textual:
               “Literal” interpretation of text; present meaning of words – widely used in Canada
               Starting point for most legal argument
               However, one often has to look outside of the text to have clarity of meaning
3. Doctrinal: Case law and precedent – common law
               Predominant form of legal argumentation in Canada
               Higher courts binding on lower courts, unless cases can be distinguished
               Sources of interpretation from previous constitutional cases (esp. After 1982)
               Can include past decisions of SCC and JCPC, comparative constitutional decisions from other countries
4. Prudential: “Policy Arguments”
               Cost-benefit – practical argument – what would produce best result for society?
               Proportionality test – social loss/gain
               In federalism context: which level of government can best deal with this issue?
               Reason for interveners
               Judges do consider policy arguments – “demonstrably justified in a free and democratic society” (S. 1 *CA1982+)
               E.g. Women’s pay equity in Newfoundland – policy argument trumped charter rights because of economic crisis
5. Ethical/Normative:
               Appeal to values, “Canadian ethos” – but what values? Whose values? How to define these values? These are not necessarily embedded in the
                Constitution.
               Very common argument in USA
               Moral and philosophical arguments seep in – question of judicial activism, subjectivity
               This is never a strict source of authority, but it is often mixed up with other principles
6. Structural: This is based on inferences from the structure of the constitution as a whole and perhaps its “unwritten principles.”
               Inferences from the structure of the constitution as a whole – filling in the “unwritten principles”
               Moves logically
               Used in Provincial Judges Reference, Quebec Secession Reference
               Well-established form of argument in Canada
7. Extrinsic Evidence (additional source for interpretation, brought up by Prof. Sheppard)
               Social sciences, government reports, International Law used as other sources for interpretation and application of the constitution
8. Comparative Approach (additional source)
               Consideration of extra-jurisdictional cases (Europe, South Africa, etc.)

Reference re Meaning of the Word “Persons” [1928] SCR 276./Edwards v. A.G. Canada [1930] A.C. 123 (H.L.) (CBp.41)
Facts          This is the famous “persons” case, over the question of whether women could be appointed to the Senate.
Issues         Did the term “qualified persons” in s.24 of the BNA Act include women?
Holding        SCC: No. JCPC: Yes.
Reasoning      The SCC distanced itself from any political aspect of the question and used a “framers’ intent” approach. (This approach was sanctioned by standard
               British rules of statutory interpretation.) While it allowed that the word “persons” standing alone would include women, it noted that the inclusion
               of women would have been revolutionary in 1867, and argues that if the framers of the constitution had really intended to include women, they
               would have said so. The basic idea was that the constitution should be interpreted in 1928 the same way it was in 1867.
               The JCPC, on the other hand, said it was relevant to consider “external evidence” as well as the BNA Act itself. Although most of the external
               evidence, in the form of historical precedent, pointed toward the exclusion of women, the JCPC did not find this conclusive, because it was derived
               from the customs and traditions of other times and places, not on law per se. As for the Act itself, Lord Sankey said that it had “planted in Canada a
               ‘living tree’ capable of growth and expansion within its natural limits”—it needed a “large and liberal” interpretation. There was also a textual
               argument, based on the fact that ss.41 and 84 had explicitly excluded women, whereas s.24 had failed to do so.
Ratio          The Constitution is a “living tree” that must be allowed to grow within its natural limits, in order that the dominion be “mistress in her own
               house”. In order for this to happen, constitutional texts must be given a “large and liberal” interpretation.
Comments       Statutes, on the other hand, must be interpreted narrowly.
               NOTE 1: procedure by which Edwards got to court was a reference, a procedure often used in Canadian constitutional law. Today the procedure is
               used when the federal cabinet refers a question to the SCC for an opinion, or a provincial cabinet sends a question to the provincial Court of Appeal.
               NOTE 2: There still remains a tension between the desire for stability and the desire for change in constitutional interpretation. JCPC used “living
               tree” in Edwards, but a few years later, in Canada v. AG Ontario (Labour Conventions – see p. 17), it emphasized the importance of stability.




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                                                                                               Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009   p. 16


Part III: Historical Developments and Perspectives
From Contact to Confederation (CB pp. 55-75)
I. HISTORY, MEMORY, MYTHOLOGY, AND CONSTITUTIONAL LAW
              Roots of many modern day constitutional issues – can see roots in this history e.g. aboriginal, FR – linguistic minority. History sheds light on present.
              2 kinds of legal historiography – 1) internal - through formal law (positivist approach) – objective viewpoint below; 2) external – law and how it
               connects with broader socio-economic / political context (connects to subjective below, but not quite).
              For a long time courts took a positivist approach to constitutional law – considering only the law as found in constitutional or legislative enactments,
               precedent, and other formal legal sources
              At best, constitutional law was willing to consider historical data, but it refused mnemonic (individual or collective memory)
              Now, courts more willing to accept mnemonic support

Jean-François Gaudreault-DesBiens, “The Quebec Secession Reference and the Judicial Arbitration of Conflicting Narratives about Law, Democracy, and
Identity” (CB p.57)
    The QSR turns on conflicting notions of history and memory, especially memory as intertwined with the identity narrative of the community. One cannot
     seriously approach constitutional interpretation while ignoring these narratives. This leads him to three observations:
           1. Identity narratives are material and legitimate, and courts should be open to them.
           2. This does not mean that courts should accept mythologies uncritically.
           3. Narratives are often contested within a community itself.
    At the core of Canada’s constitutional debates  conflicting stories about our history.
    History as objective viewpoint vs. memory as subjective interpretation by community
    Memory serves as the cornerstone of the “identity reference” of communities – these lead to identity narratives
    Constitutional law requires attention be paid to identity narratives at play, with three considerations:
          Acknowledgement of their materiality and legitimacy
          But, being open to them we shouldn’t blindly accept content or abandon critical inquiry
    Not all narratives have equal currency with a community.

II. PRECONTACT, CONTACT AND THE MYTH OF TERRA NULLIUS
      Aboriginal legal systems existed – focus on natural order, family, community, relationship with land and natural resources

Patrick Macklem, “Indigenous Difference and the Constitution of Canada” (CBp.62)
    European international law deemed North America to be terra nullius.
    “Doctrine of discovery” – European powers viewed Aboriginal peoples as “insufficiently Christian” or “insufficiently civilized” to justify recognizing them as
     sovereign over their lands and people
    Europeans felt ample compensation provided to the inhabitants by bringing in Christianity and ‘civilization’
    Nonetheless, limited aboriginal rule of law recognized – treaties/self govt.
    Now, we know NA was not terra nullius and treaties between Aboriginal people and the Crown possess constitutional significance.

    The Aboriginal peoples are not mentioned anywhere in CA1867 except s.91(24): “Indians, and lands reserved for the Indians.”

III. NEW FRANCE: CANADA’S FIRST EUROPEAN CONSTITUTIONAL REGIME
French Colonial Rule / New France 1530s -
           first European nation to establish a colony on Canadian territory
           Legal authorities shifted through the time,
           No separation between legislative, judiciary, executive.
           Governance evolved to a Council, governor and intendant.
           No elections but public meetings (on issues set out by colonial officials)
           Some recognition of Aboriginal title to territories, their ability to grant lands and hunting rights to incoming French.

IV. FROM ACADIA TO NS: THE GENESIS OF THE MARITIMES
Acadia – Nova Scotia 1600s
         First clashes between French and BNA empires.
         Treaty of Utrecht (1713) – period of calm
         Acadia and NL ceded to Britain – large number of French settlers in British-ruled NS
         Acadians remained in NS until conflict between the two empires flared again, British ultimately decided to deport Acadians (1755).
         The decision “grounded in law”
                 o    Acadians refused to take unqualified oath
                 o    there was a statute stating that the oath couldn’t be taken a second time - the government of colony had lost legal power to re-offer this
                      opportunity, thus deportation and removal from the land required by “law”
                 o    NOTE: use of rule of law to perpetuate injustice. Also, laws passed by NS to ensure Acadians couldn’t reclaim the land.

V. EXPANSION AND CONSOLIDATION OF BNA/BRIT COLONIAL RULE 1700S
          British victory at Plains of Abraham 1759, then Montreal, 1760.
          Treaty of Paris, 1763 – France renounces claims to NA colonies, British Colonial rule


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                                                                                           Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 17

Royal Proclamation, 1763
   Beginning of British colonial rule – following signing of Treaty of Paris (defeat of French by the English)
   Mentions QC, pledges to create legislative assembly (renouncing ability to legislate by proclamation)
   Imposes British law
   Recognizes aboriginal people and their lands through 2 principles – crystallizes relationship between Crown and Aboriginals:
         Aboriginals formally recognized as autonomous political units able to hold treaty relations with Crown
         Aboriginals entitled to their lands (until ceded away)

Quebec Act, 1774
   Restoration of Civil Law in private law after recognizing its resilience
   Extension of QC territory which was affront to Americans and contributed to American Revolution, many loyalists moved to NS and QC (hostility in QC)

Constitutional Act, 1791
   2 key features of the CA 1791: division of Quebec into two distinct provinces and the creation of legislative assemblies for both provinces
   Upper Canada (English-Protestant) and Lower Canada (French-Roman Catholic)
   No separation between executive and judiciary, and no accountability of executive to legislative branch.

V. TROUBLES IN THE COLONIES: PRE-CONFEDERATION
    Problems created by Constitutional Act created unrest: no accountability by the executive to the legislature
    Increasing desire for self-government (2 key concepts)
          Representative government: requirement that laws only made by legislature elected by the people.
          Responsible government: requirement that the powers of the executive branch (crown – GG) can only be exercised in accordance with political (executive)
           leaders who themselves enjoy the confidence of the legislature. More unique to parliamentary democracy. (Our executive comes from legislative in
           contrast to US).
    Rebellions – Mackenzie in Upper Canada and Papineau in Lower Canada – bloodshed  quashed

Lord Durham’s Report, 1839
    Proposed legislative union of the two Canadas
    Proposed institution of responsible government
    Characterization of French Canadians as an inferior race
    Proposed assimilation of Canadiens through both informal means (British immigration) and formal means (legislative union where British citizens would
     eventually form a majority)

Union Act, 1840
   Established Canada East and Canada West – one union
   Equal parliamentary representation for both Canadas – no representation by population (unfair to French Canada)
   Merging of debts (unfair to French Canada)
   English the sole language of the parliament
   Maintenance of civil law tradition
   No responsible government (contrary to Durham report)
   This was unsuccessful
              Official bilingualism returned in 1848, and the Union parliament practiced “duality” with its cabinet posts, by alternating between French and English
               ministers or appointing two at a time. There was often a political stalemate.
              With the Compensation Bill, 1849, Governor Lord Elgin gave royal assent to a bill he disagreed with—the supremacy of the legislature was clear.




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                                                                                              Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009   p. 18

VI. CONFEDERATION

G. Stevenson, Unfulfilled Union, 3d Edition (CB pp.77-83)
Internal difficulties in province of Canada
     By 1857, impasse in governing province of Canada
     Each section harboured belief the other was dictating to them.
     Ethnic and religious antagonisms exacerbated by issues before the legislature and the divergence of economic interests (farmers and businessmen in the west
      vs. Montreal as hegemonic economic centre).
     Territorial expansion in each direction seen as means to escape impasse.

Strategic & Economic Motives
     Due to external threat of US invasion, UK became supportive for a united British North America (more defensible and could contribute to costs of defence)
     Trade took on an east west focus away from north south focus: Potential for economic growth for emerging centres (Toronto) and particularly in light of
      likelihood of losing reciprocal trade agreements with US
     Federation only acceptable approach
             o    Maritimes wouldn’t give up governing; Lower Canada wanted sovereignty over many issues, etc.
             o    French concerned with civil and religious rights and felt Parliament would only have control over “certain general questions clearly defined by the
                  constitution”

Terms of Union
   Reflect the many interests and motives behind Confederation
   Key drivers: desire for a Constitution similar to that of the UK, and not like that of the US.
   Constitution similar to UK for ideological and pragmatic reasons: access to British markets, capital essential, British defence assistance, etc.
          o     Challenge: compatibility of monarchy and federalism – would need to be top-down federalism, which suited MacKenzie et al.: Ottawa subordinate to
                UK, provinces subordinate to Ottawa.
   Division of powers allocated to central government enabled it to carry out major objectives of Confederation. Provinces given areas important to Quebec’s
    distinctiveness: education, the family, social institutions, law of property and civil rights.
   Powers seen as unimportant by MacDonald (natural resources / timber) were also given to provinces (irony today…)
   Division of legislative powers (terms of union) embodied centralist concept of federalism but ultimately, two reigning interpretations:
          o     Two levels of government as sovereign within their jurisdiction
          o     Political authority from top down, with provinces subordinate to Ottawa

          Colonial Laws Validity Act, 1865:
                o     UK Parliament statutes only apply to colonies if expressly specified (“imperial statutes”).
                o     Colonial legislatures could change laws for colonies (as long as they did not contradict imperial statutes).

          The explicit principles of CA1867:
               federalism
                         centralizing aspects                                      decentralizing aspects
                           a strong central government                             enumerated powers (some of which became
                           residual powers to centre                                   more important later, such as health,
                           important enumerated powers                                 education)
                           disallowance                                            “property and civil rights”=almost a residual
                                                                                        clause
                                                                                    matters important to local self-government
               a constitution “similar in principle to that of the United Kingdom.” (This opens the door to the idea of “unwritten principles.”)
               There was still tremendous deference to the British Crown and Parliament: CA1867 did not break the chain of sovereignty.

A.Silver, The French Canadian Idea of Confederation 1864-1900 (CB pp. 83-87)
     First concern was protection for the future of the French-Canadian nationality (geographic and cultural)
     Vision was Lower Canada as a distinct and autonomous province in a loose and decentralized Confederation – provinces were to be political manifestations of
      distinct nationalities.
     Confederation would give French Canadians virtual independence.

    Some important issues to take away from the history of the constitution are:
        English-French conflict
              The British used law (a court decision) to justify the Acadian expulsions; they then used legislation to deny the Acadians’ property claims.
              Following the conquest of Canada, the Royal Proclamation of 1763 imposed English law (although French law continued to be used in practice). The
               Royal Proclamation promised Canada a legislature, but the government withheld the privilege; the governor governed through a council with no
               French Catholics.
              The Quebec Act of 1774 restored French law, but denied the province an assembly (because of the fear of a French majority). However, some French
               Catholics were appointed to the council.




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                                                                                         Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 19


Part IV: Federalism
Historical Chapters in Canadian Federalism
   These three chapters demonstrate:
    o    a formalist approach to constitutional interpretation
    o    different visions of federalism


The Late Nineteenth Century
   From 1867 to 1982, most cases were about the federal-provincial division of powers.
         Canada dramatically expanded to the east, west and north
         Struggle for power between the Dominion (MacDonald and the Conservatives) and the provinces, led by Ontario (Mowat and the Liberals). “Provincial
          rights”
         First time for judges / scholars in interpreting the BNA Act, with two large concerns: general nature of Canadian federalism and the division of powers
         Many of these cases revolved around businesses and the question of economic regulation, especially in the early 20th century and the Great Depression.
         Liquor-related activities (taxes, licences) sources of revenue and political support.
         There were also a few cases about judicial independence.
         Cases concerning Aboriginal rights were not argued in constitutional terms; they were property law cases.
   Early Canadian cases could also be appealed to the JCPC.
         Some believed it was illegitimate that a British court should have so much influence on Canada. The JCPC “turned the document on its head” by giving such
          a broad reading to provincial powers.
         Others argue that the JCPC’s geographical distance also gave it the critical distance necessary to balance federal and provincial demands.




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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 20

Richard Risk, “Constitutional Thought in the Late Nineteenth Century” (1991) 20 Man. L.J. 196

MAIN POINTS: Formalism vs. Contextualization
             o Negative tone for Privy Council à Decisions illustrate an approach to legal reasoning that was decontextualized based on abstract interpretation of
                 reality. Contextual approach was supplanted by a “rule of law” thought.
             o Praise for SCC à In early Supreme Court decisions, judges approached decisions asking “What was the vision of the founders?” – centrist view

     (p.200) Suggestion that during the 2nd half of the 19th C, a substantial shift in lawyers’ way of thinking occurred throughout the Anglo-American legal world. The
           basic ideas that dominated included individual rights, a division between private/public realm, boundaries, function of judges was objective,
           autonomous and apolitical, law as a science of interpretation.
     Prof.: The SCC is still stuck in old doctrinal reasoning, abstract from reality... On the other hand, we don’t want judges doing politics. R. Risk applauds a very
           centrist vision (like John A. Macdonald)
                 o How could we do this differently? Law is very conservative, looks to the past to understand how to resolve present-day disputes. But do these
                        cases really provide us with more clarity?

     Discusses judges’ reasoning more than decision held
     Focus on Local Prohibition Reference à important holding in favour of the provinces
                o Judicial Committee of Privy Council held that provinces could prohibit sales of liquor
                o Interpreted s.91(2) of BNA Act narrowly, 92(13) and 92(16) expansively
                              1)91(2) à Federal regulation of trade & commerce à ‘regulation’ implies that there is something to regulate, therefore Fed. cannot
                                 prohibit it
                              2)92(13) à Provincial jurisdiction re Property & Civil Rights in the province
                              3)92(16) à Provincial jurisdiction Generally on all matters of a merely local or private nature in the province

     Russell case had upheld ‘local option’ legislation enacted by the Dominion parliament, but provinces could make reasonable argument that they could enact the
           same type of legislation
     Oliver Mowat – Premier of Ontario, sympathetic to prohibition, gives municipalities option to enact prohibition in terms that had existed at Confederation
     1895: Supreme Court held in Local Prohibition Reference that provinces had no power to exhibit
                 o Gwynne, J.: Discusses Confederation, original intent à strong trade and commerce power is needed, to give such power to local legislatures
                       would deny the intent of the framers and imperil Confederation
                 o Sedgewick, J.: BNA Act was a compact of colonies, need to interpret it from Canadian standpoint
     Were these the last defiant cries of a tradition that was about to vanish? à Considered context of Confederation as an illumination/dictionary for
           interpretation
     Privy Council’s overturning of the Supreme Court expresses modern approach, supplants contextual tradition
Nature of provincial legislature: Supreme or Subordinate?
     1870s: Mowat claims they are supreme, succeeded in Hodge, though initially problematic due to traditional British interpretations of sovereignty à how could
           there be 2 sovereigns?
     Mowat’s use of language: word ‘Legislature’ excluded some concepts, including subordination
     Debate about powers of Provincial and Dominion legislatures:
                 o Legislative power divided between supreme legislatures
                 o Legislation by Dominion/Provinces might affect subjects about which the other could also legislate
What is the significance of Russell, Hodge, Local Prohibition cases?
     Approaches to legal reasoning. Very formalist approach, presented as objective interpretation of the texts.
     Doctrinal rules of federalism cases à early articulations of basic interpretive approaches which continue to be with us today
     Visions of federalism: centrist vs. decentralized vision of Canadian polity. Beginning of an approach by the Privy Council which affirmed provincial autonomy,
           subject to widespread critique particularly during Depression in 1930s

Both Russell v. the Queen and Hodge v. the Queen are challenges relating to the relative authority of Dominion vs the provinces, and in both, the Dominion’s authority
constrained.

Russell v. The Queen (1882), 7 AC 829 (PC) (CB p.97)
Jurisdiction     New Brunswick
Facts            Russell was a tavern owner who was prosecuted for selling liquor, contrary to the terms of the Canada Temperance Act. Russell argued that this
                 Act was ultra vires the federal government.
Issues           Did the regulation of liquor fall under any of the enumerated sections of s.92?  was the Temperance Act invalid?
Holding          No.  Temperance Act is valid.
Reasoning             JCPC uses test elaborated in Citizens Insurance v. Parsons:
                             1. Does the act in question fall within s. 92? (Is it exclusively assigned to provincial jurisdiction)?
                                             S. 92(9) – generation of revenue?  rejected – federal statute not a fiscal law, no conflict
                                             S. 92(13) – property and civil rights?  rejected – law is for promotion of public safety – only incidental effects for
                                              property and civil rights (most POGG laws will affect property/civil rights incidentally; the pith and substance is public
                                              good)
                                             S. 92(16) – local/private nature?  rejected – this law to apply uniformly across dominion, therefore not targeting any
                                              specific province
                             2. Does the act also fall within s. 91? (If only in s. 91, it is under exclusive Dominion authority)
                                             No need to discuss this – POGG power is residual – because this law is not under any enumerated provincial power, it
                                              is under federal jurisdiction by default
Ratio            Emergence of pith and substance doctrine, ancillary doctrine
Comments              This is an early formulation of the “pith and substance” doctrine. This is also one of the rare early cases decided in favour of the federal
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                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 21

                        government and POGG. It was contradicted by many later cases, especially the Local Prohibition Reference.
                       First instance of allowing overlap in fed/prov laws: a law can be upheld as valid even if having incidental effects on the other jurisdiction –
                        ancillary doctrine
                       Why did Sir Montague Smith use the same two-step test for federal legislation?
                       It’s not a property and civil rights because it has to do with public order and safety.

Hodge v. The Queen (1883), 9 AC 117 (PC) (CB p.101)
Jurisdiction       Ontario
Facts              Amalgam of two cases of liquor violations by Tavern owners – Hodge and Frawley violated Liquor Licensing Act. Frawley sentenced to hard
                   labour due to multiple infractions. Also raised as an issue was role of Liquor Commissioners in each municipality to manage licensing. Dominion
                   argued for comprehensive control over liquor on basis of Russell
Issues             Is the Liquor Licensing Act ultra vires? Do the provinces have authority to delegate?
Holding            LLA valid. Provinces and Dominion both have supremacy, and can delegate.
Reasoning               Principle which Russell and Citizens Insurance illustrate is that subjects which in one aspect and for one purpose fall within s. 92, may in
                         another aspect and for another purpose fall within s. 91
                        LLA concerned with matters of a purely local or private nature and do not conflict with the regulation of trade and commerce (s. 91), nor
                         with the Canada Temperance Act, since not adopted locally
                        There is no conflict between the Ontario legislation and the dominion Temperance Act
Ratio              Provinces are supreme within their territory, not “delegates” of the Dominion Parliament. Emergence of the double aspect doctrine.
Comments           Doctrinal learning:
                        Reasoning is formalist – focused on the law and constitutional principles.
                        Introduces the Aspect Doctrine
                               o     pg 102 – Lord Fitzgerald: an issue which for one aspect and purpose falls within s. 92 can, for another aspect and purpose fall
                                     within s. 91. (example: child welfare & protection is provincial, child abuse is criminal and thus federal)
                               o     Aspects doctrine also allows for overlap – both levels can legislate on a similar issue for different purposes. Builds on the
                                     overlap first allowed through pith and substance doctrine of Russell.
                   Other key ratio:
                        Canadian (provincial) legislatures were created by British parliament and were therefore delegates of the British parliament and not
                         sovereign legislatures. Issue: CML delegatus non potest delegare – a delegate may not delegate. What was the status of Liquor
                         Commissions to whom the provinces delegated liquor regulation in municipalities?
                        JCPC decided provinces were not simply recipients of delegated power, but “supreme” and autonomous in their jurisdiction –
                         (antithetical to the centrist view). “Supreme” used with care to avoid “sovereign’.

    What happened to constitutional interpretation in these cases? There is a dichotomy between a formalist approach and a functionalist approach:
     o   Legal formalism argues in terms of abstract categories, bright lines and fixed meanings; it claims to be scientific and apolitical.
              In the modern era, legal formalism is often mixed with policy reasoning.
     o   Functionalism openly discusses social, political and economic realities; it treats law as a response to historical experience and is sometimes openly political.
     o   Functionalism can easily evolve into a kind of formalism: what are interpreted as unwritten principles can evolve into written principles!

AG Ontario v. AG Canada (The Local Prohibition Reference) [1896] AC 348 (PC) (CB p.107)
Jurisdiction      Ontario
Facts             In 1890, Ontario had passed a statute which gave municipalities the power to introduce prohibition (similar to the Canada Temperance Act). In
                  1894, while contemplating total prohibition, Ontario asked the courts about the legality of pieces of legislation.
Issues            Did a province have the power to legislate prohibition?
Holding           SCC: No. JCPC: Yes – in the absence of conflicting federal legislation a province possesses the jurisdiction to prohibit manufacture of liquor within
                  the province –but it must remain a local matter.
Reasoning               The SCC relied on “trade and commerce,” and also used historical/framers’ intent arguments.
                        JCPC found that Canada Temperance Act is not a trade and commerce issue because prohibition cannot equal regulation of a trade
                        Lord Watson found that the provincial legislation fell under “property and civil rights” and “local or private nature”
                        Watson said that the last paragraph of s. 91 excludes those general powers (POGG) from affecting the local and private matters enumerated
                         in s. 92, i.e. POGG applies only to matters “unquestionably of a Canadian interest and importance” and cannot encroach upon enumerated s.
                         92 powers. (Anything else would undermine provincial autonomy and negate framer’s intent to give provinces some autonomy).
                        Interestingly, Watson also articulated the “paramountcy” doctrine, that if there is “collision,” “provincial must yield to Dominion legislation.”
                         However, he did not find conflict since it was possible to comply with both laws by complying with the stricter of the two.
Ratio             Provinces cannot usurp federal powers via the exercise of jurisdiction over local matters, but they may make extra provisions to deal with
                  strictly local issues. POGG cannot justify incidental effects.
Comments                This case represents an important turn towards provincial rights, and away from overlap, towards “watertight compartments”. Watson’s use
                         of s. 92(16) (“local or private nature”) elevates it to almost the same status as POGG.
                        POGG narrowed and defined (national concern and emergency powers first articulations)
                        Paramountcy doctrine first articulation

Main themes:
    Watson J.’c concern was that giving too much power to fed government would undermine the autonomy of the provinces.
    In this sense the JCPC has a political vision and it is expressed here, even if not extensively discussed – provincial autonomy.
    Watson finds that both CTA and provincial laws are constitutional, competing legislation. If conflicting, federal law trumps (here no federal law, so provincial law
     valid).


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                                                                                              Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009        p. 22

    Doctrine of national dimensions – matter that is potentially local or provincial might escalate to dimensions of national concern under peace order and good
     govt principle either because the dimension of the issue has become national or an emergency renders it national
    Doctrine of federal paramountcy – “it may now be regarded as settled law, that according to …the BNA Act the enactments of Parliament, insofar as these are
     within its competency, must override provincial legislation”.

Note: The Nature of Federalism
“A federal state is a political contrivance intended to reconcile national unity and power with the maintenance of “state rights”.
    There is a view of Canadian federalism that stresses the autonomy of the two levels—whatever concerns the nation as a whole should be placed under the
     control of the national government. All matters which are not primarily of common interest should remain in the hands of the states.
National unity and state independence reconciled by the three characteristics of developed federalism: (1) supremacy of the constitution; (2) the distribution among
bodies with limited and co-ordinate authority of the different powers of government; and (3) the authority of the Courts to act as interpreters of the constitution.

Note: Compact Theory
    A theory whose foundation was a claim that the colonies had made a compact creating the Dominion, ratified by the UK parliament.
    Provinces thus didn’t renounce any power in Confederation and the compact didn’t create new powers, merely created a government to deal with inter-
     provincial issues.
    This runs against the history of the enactment and the prevailing interpretations which looked at the Constitution document as a fundamental starting point.
     This theory fell out of currency in the Common law.

Note: Power of Disallowance
    This power, expressed in s. 59 and 90 of the Constitutional Act of 1867 enabled the Governor General, acting on the adviceof the federal cabinet, to reserve for
     up to one year and then disallow (veto) any enactment of the provincial legislatures.
    This subordination did not fit well with the compact theory.
    It was used in the years following Confederation to disallow provincial Acts which appeared unjust or oppressive e.g. interference with private property without
     compensation, impairing of contractual obligations, or to be contrary to “sound principles of legislation’.
    Fell out of convention by mid 20th century.
    Nonetheless, an example of the strong centrist vision of the BNA Act.

Manitoba Schools Question p.117
Introduction
     Canadian government bought up Rupert’s land but failed to assure locals that their rights would be respected.
     Métis uprising resulted. Their demands were largely included in the Manitoba Act when Manitoba became a new province.
     When MN entered Confederation in 1870 there was a relatively equal balance of FR and EN and the Act called for protections for minority religious communities
      and the intention to guarantee denominational education rights
     By Census 1891 – French Roman Catholics were a definite minority
     In 1890 MN legislature passed the Department of Education Act to amalgamate school boards to a single, secular (effectively Protestant) free school system
      (paid by rate-payers) and the Official languages Act that made EN the official language.
     Barrett challenged the levy, arguing it prejudicially affected the denominational school rights of Roman Catholics by requiring them to contribute twice: to free
      schools and to their own system.

Barrett v. City of Winnipeg (1891), 1 S.C.R. 374
Facts              Barrett contended that levy issues by City of Winnipeg to support public school system prejudicially affected denominational school rights of
                   Roman Catholics
Issues             Is the Act ultra vires?
Holding            SCC: Yes; JCPC: No
Ratio              Reasoning SCC
                        It prejudicially, that is, injuriously, affects RCs because they are taxed to support a system that in good conscience they cannot sent their
                         children to
                        They have been deprived of their denominational school and are compelled to support schools the benefit of which only Protestants can
                         enjoy
                   Reasoning JCPC
                        Catholics are “free to establish schools, free to conduct their schools according to their own religious tenets... no child is compelled to attend
                         a public school.”
                        “What right or privilege is violated or prejudicially affected by the law? It is not the law that is in fault. It is owing to religious convictions
                         which everybody must respect... that Roman Catholics and members of the Church of England find themselves unable to partake of
                         advantages which the law offers to all alike.”
Comments                JCPC reinforces the classical notion of a negative freedom – non-interference is the equivalent of freedom
                        After JCPC, federal cabinet referred questions to SCC asking whether Roman Catholic minority could appeal to the federal cabinet because a
                         right or privilege in relation to education had been affected by the 1890 Act.
                               o      SCC ruled that GG (cabinet) had no remedial authority to exercise: MN has absolute powers over its own legislation, unless
                                      restrictions of its rights are expressly stated in Constitution Act.
                               o      JCPC reversed this decision in finding that RC minority rights existing before 1890 had been negatively affected – ruling was related
                                      to ability of legislature to repeal rights. Brophy [1895] AC 209
                        Before federal government could enact remedial legislation, federal election called.
                        Laurier won, pursued a strategy of conciliation and negotiated settlement rather than confrontation with the province.




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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 23


The Early Twentieth Century
    During this period, the government became more active in regulating the economy.
         WWI was a major turning point/catalyst in this regard.
         According to some historians, the Canadian state was already more interventionist than the US because of a concern for safeguarding key resource
          industries.

Regulation of the economy expanded and this is the subject of most of the cases.
Dominant Judge was Lord Haldane, building on tradition of Lord Watson.

Except from Lord R. B. Haldane, “Lord Watson” (1899)
    His function is … to fill in the gaps which Parliament has deliberately left in the skeleton constitutions and laws that it has provided for the British Colonies.
    The Constitution Act 1867 had given separate legislatures and executives to the Provinces but had not defined their relationships to Parliament of the Dominion.
    Two views: Parliament paramount v. co-ordinate federalism (separate but equal). Watson aimed to establish the second.

Lord Haldane continued this approach to judicial interpretation:
    AG Canada v. AG Alberta (the Insurance Reference) 1916, considered constitutionality of the Dominion Insurance Act, which sought to regulate large insurance
     companies carrying on business across the country.
    Haldane found the Act ultra vires because it deprived individuals of the liberty to carry on the business of insurance.
    While insurance is an important business, it could not be upheld under POGG as having become of so important to be of a national dimension.

Toronto Electric Commissioners v. Snider (1925) (CB p.137)
Jurisdiction     Ontario
Facts            A labour dispute arose between the Toronto Electric Commissioners and some of its employees. The Industrial Disputes Investigation Act enabled
                 the federal government to act as a neutral third party and mediate between capital and labour in disputes related to certain sectors with more
                 than 10 employees. Strikes or lockouts were prohibited during the mediation. A board was appointed under the Act to look into the dispute. The
                 TEC argued that the federal Industrial Disputes Investigation Act was ultra vires.
Issues           Could the legislation in question be justified by “trade and commerce” and “criminal law”?
Holding          JCPC: No. The legislation is ultra vires.
Reasoning             Parliament held it was valid under s. 91(2) (trade and commerce) and 91(27) (criminal law). Did not attempt POGG because it considered the
                       domain unsettled.
                      Haldane J. – dominion’s powers under this act trench on civil rights – appointed Boards can enter premises, interrogate persons, inspect
                       work, etc.
                      Act does not aim to make a general strike a crime
                      POGG only applies in cases of emergency – narrowed reading of Russell judgment – intemperance an emergency; pestilence might be
                       another.
                      Limit of “trade and commerce” power – can only be used “in aid of” other s. 91 powers.
Ratio            Labour law is a provincial matter; POGG applies only in emergencies.
Comments              This case seems to have bypassed the SCC.
                      This case had the effect of making labour law a provincial matter.
                      Lord Haldane’s limiting of the trade and commerce power was effectively reversed in obiter in Proprietary Articles.
                      In the wake of Snider, some critiques of JCPC decisions began to emerge (see below).

The King v. Eastern Terminal Elevator Co. [1925] (CB p.141)
Jurisdiction     Ontario
Facts            Eastern Terminal Elevator company, which operated a grain elevator at Thunder Bay, refused to pay a certain percentage of the proceeds from the
                 sale of its “dockage” (foreign matter in the grain). It argued that provisions of the Canada Grain Act which aimed to limit the profits of terminal
                 elevator companies were ultra vires.
Issues           Could the impugned provision be justified under POGG?
Holding          SCC: No. But it can be justified under s. 92(10)(c).
Reasoning        SCC: The majority found that the legislation really dealt with property and civil rights on a local scale, even if the grain trade was of national
                 importance. However, Duff J. suggested that the federal government could use s.92(10)(c) exception to provincial powers to declare that the
                 elevators were “for the general advantage of Canada,” and this is what it did.
                 Anglin CJC, dissenting, lamented Lord Haldane’s limiting of the “trade and commerce” power in Snider. He says that he would nevertheless uphold
                 the legislation under POGG as a matter of national importance. He also says that he would have allowed the provision to stand based on the
                 validity of the Act as a whole (using the “necessarily incidental” approach).
Ratio            Even if POGG cannot be used to justify federal regulation of the grain trade, s.92(10)(c) allows federal control over works which are to the
                 general advantage of Canada.
Comments         This case is a good example of dialogue between the courts and the executive.

    What modes of interpretation were used in these judgments?
             Doctrinal: The courts had to deal with the Russell case, applying, distinguishing or reinterpreting it. But does case law have an effect on the outcomes
              of the case? Jurisprudence appears to have been very malleable.
             Textual: But the text proved to be highly indeterminate.
             Historical (framers’ intent): Not used in certain cases...
                   Critics said it was necessary to use history to solve historical problems.
             Prudential or ethical reasoning—visions of provincial autonomy—is only rarely stated openly.
        These cases mainly talk about the text and case law: They only make passing references to other modes of interpretation.
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                                                                                               Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 24

Competing Visions of Federalism

H.E. Smith, “The Residue of Power in Canada,” (1926) (CBp.146)
     Smith derides the arbitrary rule that had developed in English jurisprudence which stated that the framers’ intent (or other extrinsic evidence) could not be used
      in interpreting a statute.
     He blames this rule for the historical reasoning which produced the Snider decision (relegation of POGG to a reserve power only to be used in times of
      emergency)
     He laments the fact that, by the Snider decision, provincial “property and civil rights” has emerged into an almost general grant of power to replace POGG
     The courts have imposed a constitution which is different in detail and in principle from that introduced by the founders
     The real balance is to be found between POGG and matters of a “local or private nature”

J.R. Mallory, “Social Credit and the Federal Power in Canada,” (1954) (CBp.147)
     Haldane’s decisions might be better explained in terms of laissez-faire versus interventionism (or “individualism” versus “collectivism”) rather than provinces
      versus the centre. Most of the federal legislation he struck down was economic regulation.
     These cases are also about assumptions re. Non-interventionist state vs. Regulatory state as well as a struggle between two visions of federalism
     CML judges reticent to embrace regulatory state – “freedom” = no state intervention

Alan Cairns, “The Judicial Committee and its Critics,” (1971) (CBp.149)
    Cairns argues that the JCPC’s provincial bias was in harmony with contemporary political trends in favour of regional pluralism. It’s important to remember that
     during this time Canada grew from four provinces to nine, and province-building was happening at the same time as nation-building. Although Ontario led the
     struggle in the courts, all of the provinces had movements toward autonomy.
    Lord Haldane and Watson consciously fostered the provinces in Canadian federalism... on the basis that provincial bias was in fundamental harmony with the
     regional pluralism of Canada... and the trends of the day

David Schneiderman “Harold Laski, Viscount Haldane, and the law of the Canadian Constitution in the Early Twentieth Century” (CB pp. 151-153)
   Laski was a leading figure of the political pluralist movement in the UK.
   Citizens derive meaning and identity from the plurality of groups to which they belong (church, union, town, country, university, etc).
   Central government cannot effectively understand the “genius of place”.
   Multiple centres of authority multiply the channels of discussion and promote the diffusion of independent opinions.
   The pluralists preferred local government where policy choices could be better felt and understood.
   The state nonetheless had a role to play: “the state exists as the most adequate means we have yet invented for the promotion of an end we deem good.
   True source of sovereignty is argued as the public opinion, equated with general will.

       It is worth noting that these courts were very activist courts—they were not afraid to strike down legislation in the name of the constitution.


The Depression and the “New Deal”
Two Cases Thwarting Federal Economic Regulation
   These two cases demonstrate a shift toward federal power. Nevertheless, commentators at this time continued to perceive the JCPC as biased toward provincial
    rights.
   The JCPC did however strike down federal economic regulation, as in these three cases:
         Labour Conventions
         Employment and Social Insurance

A.G. Canada v. A.G. Ontario (Labour Conventions) (1936-1937) (CB p.168)
Facts             Reference on the validity of Limitation of Hours of Work Act, Weekly Rest in Undertakings Act, and Minimum Wages Act. All of these acts were in
                  International Labour Organization treaties the executive signed to secure humane working conditions for labourers.
Issues            Could the federal government use s.132 of the constitution to enact legislation within a provincial sphere in order to implement an international
                  convention it had signed?
Holding           SCC: 3-3 split  JCPC: No.
Reasoning         SCC: Duff CJC with Davis and Kerwin JJ, said that Canada had independence to enter into treaties, under s. 132, even though it may also affect
                  provincial legislative power under s. 92. Judging against the validity of these acts of parliament, Rinfret, Crocket and Cannon JJ said that the Acts
                  were not valid because Canada adopted the international treaties on its own behalf, and that Parliament needed provincial consent before
                  entering into international treaties.

                     JCPC: Under s. 132, Canada has the right to enter into international treaties. Canada did so in this case as Canada and for Canada, thus it is within
                     Parliament’s power to enter into this treaty. However, the validity of the legislation depends on the clear separation of powers in the federal state.
                                      1. The formation of the treaties is an executive power
                                      2. The performance of treaties is carried out by the legislative branch
                     Usually, the executive will get the legislature’s approval before signing treaties. Furthermore, in a federal state, the executive will sign, but
                     performance must be carried out by several legislatures. Parliament cannot pass these Acts because it is encroaching on provincial legislative
                     power. Lord Atkin found that the conventions were acceded to by the Canadian executive of its own volition; the executive cannot “clothe itself”
                     with treaty-making power in order to override provincial powers.
Ratio                The executive cannot “clothe itself” with treaty-making power in order to override provincial powers. This is the “watertight compartments”
                     case!!
Comments             The JCPC articulates something of a vision of provincial autonomy on p.171.
                     This case contains Lord Atkin’s famous statement: “While the ship of state now sails on larger ventures and into foreign waters she still retains the

                                                                                     24
                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 25

                  watertight compartments which are an essential part of her original structure.”
                      International law in Canada:
                            The federal executive can bind Canada under treaties.
                            But treaties must be “implemented” by domestic (federal or provincial) legislation before they can be enforceable. If they are in a
                             sphere of provincial power, the province must implement the treaty.
                            The provinces were willing to give up jurisdiction if the federal government would pay.

A.G. Canada v. A.G. Ontario (The Employment and Social Insurance Act) (1936-1937) (CB p.173)
Facts            The federal government created this Act to provide compulsory insurance for workers.
Issue            Is the Employment and Social Insurance Act valid?
Holding          No (4-2)
Reasoning        SCC: Rinfret, Crocket, Cannon, Kerwing JJ (Majority)
                      The act deals with property and civil rights, thus it is ultra vires parliament’s power to enforce the Act. Since insurance is a provincially
                       regulated matter, and since the act regulates contracts and employment, Paliament cannot intrude on these matters of provincial concern.
                       The “pith and substance” of the act is provincial, not federal.
                 Duff CJC and Davis J (dissent)
                      Its pith and substance is taxation, justified under 91(3).
                 JCPC: Lord Atkin:
                      The Act doesn’t deal with a special emergency; rather, it is a permanent measure to regulate so it isn’t justified under POGG. What’s left to
                       consider is whether the Act is within the Federal legislative power. Even though it deals with Dominion property, it invades civil rights within
                       the Province, and it encroaches upon the classes of subjects which are reserved to Provincial competence. Thus it is ultra vires. SCC decision
                       upheld.
Comments              The 1937 Employment and Social Insurance case is not all that important for understanding constitutional doctrine. The only important
                       thing to note is that the JCPC (Lord Atkin) said that the federal government could not use its spending power to trench on areas of
                       provincial jurisdiction.
                      In 1940 the constitution was amended to give the federal government power over unemployment insurance: s.91(2A).

    The academics of the 1930s put forward an essentially functional critique. They favoured federal government action because they thought it would be more
     effective.
    Academic commentary during this period saw a continuation of what happened in the late 19th and early 20th century: a restrictive reading of federal powers
     and a continuing concern for provincial autonomy, the striking down of numerous federal initiatives (especially those set up to deal with the economy).
          Academic commentary was now more directly critical of the JCPC, but also of the SCC.

    Even in the midst of a clear emergency, POGG was ignored.
    The federal government might have relied on POGG to deal with the devastating effects of the Depression, but it didn’t. When King was re-elected in 1935, one
     of the first things he did was to refer Bennett’s “new deal” economic legislation to the SCC.
          Another factor in this was the way the legislation was drafted—it could have been framed to re-enforce its legitimacy under POGG, but it wasn’t.
    The government shifted between the Liberals and Conservatives; neither Bennett nor King were committed to Keynesian economic policies.
    Academics such as W.P.M. Kennedy (p.165) felt that the federal government’s hands were tied during a time of national tragedy. Kennedy lamented the loss of
     the federal “general power,” and thought that appeals to the JCPC should be abolished, that its past decisions should be overturned, and that the BNA Act
     should be repealed and the constitution rewritten (p.180).

Simeon and Robinson, State, Society, and the Development of Canadian Federalism (CB pp. 178-180)
   The so called “New Deal cases” “paralysed the Dominion on agency for negotiating economic activity.”
   King could have implemented the policies that he had inherited from Bennett’s government (the Acts which are outlined above), but King was very sensitive to
    national unity and the objections of the provinces of Federal encroachment.
   There was strong dissent coming from Kennedy and Scott: only a strong Dominion government could respond adequately to the Depression. They felt the BNA
    Act existed to make the Federal government dominant and to give it the power to legislate in powers of general importance across the country.

W.P.M. Kennedy, “The British North America Act: Past and Future” (1937) (CB pp. 180-181)
   JCPC has no intention of acting as a constituent of Canada.
   It was taking away too much federal power
   Only the Federal powers had the capacity (fiscal resources and technical expertise) to implement progressive social and economic policies (like the Minimum
    Wage Act, and the other Acts above).

F.R. Scott, “The Consequences of the Privy Council Decisions” (1937) (CBp.181)
     JCPC is out of touch with Canadian reality.
     Notes that the provinces and the federal levels have worked together before
     The JCPC reading of the distribution of powers was too rigid: “watertight compartments” was just a fear of encroachment on each other’s legislative power.
     Federal “general power” is gone with the winds.
     Scott had a social-democratic critique of the JCPC. It appeared that the JCPC was defending laissez-faire capitalism and striking down all attempts at government
      intervention in the economy.
     Scott also criticized the JCPC’s handling of the Natural Products Marketing Act. The legislation had involved a good deal of federal-provincial cooperation, and
      each of the provinces had enacted complementary legislation to set up Marketing Boards. Yet the JCPC ignored this and struck down the federal legislation. The
      JCPC lost credibility over this.



                                                                                  25
                                                                                         Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009   p. 26

W.F. O’Connor, The O’Connor Report (1939) (CBp.183)
    Was an analysis of JCPC decisions regarding division of powers
    General powers were Federal, and local powers were Provincial.
    O’Connor claimed the JCPC’s decisions stripped away Federal legislative power through “judicial legislation”.
    “Lord Watson and Lord Haldane were the villains of Canadian Federalism”
    They erred in setting aside the general grant of power to Parliament, and concentrating on the enumerated powers. His formalist analysis was much more
     thorough than that of H.E. Smith and others. He traced the “path of error” through Watson and Haldane’s judgments, and argued that not much needed to be
     fixed if these decisions could be overruled.

    The “legal realist” movement was a reaction against undue formalism. Some of its principles were:
         Law should be informed by and connected to changes in society.
         Law is not objective; judges make value judgements and political decisions.
         Conflicts of rights require a subjective balance.
         Stare decisis is a myth: precedent is manipulable and indeterminate.




                                                                               26
                                                                                              Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 27


Federalism and the Modern Canadian State
K. Norrie, R. Simeon, and M. Krasnick, Federalism and the Economic Union (1986) (CB p. 188-195)

Evolution of the division of powers
          Now, both levels of government have expanded areas of activity, broader than those envisioned in 1867 and the later JCPC judgments discussed above.
          The watertight compartments were now getting leaky.
          Shared overlapping jurisdiction, a result of four processes:
                  o     Projections of federal concerns into provincial matters through spending power (Federal formation of the welfare state)
                  o     Economic development: Such as the TCH, programs of regional development and also provincial presence abroad
                  o     Revenue raising: taxes used to be separate, now both federal and provincial rely on corporate and income tax.
                  o     New policy areas not covered in the BNA Act: competitive expansionism. New matters could plausibly fall within either area of jurisdiction.
          So there was a breakdown of the clear rationale or precise criteria for determining how responsibilities should be allocated.
          Local v. national; provincial v. federal: these distinctions became less precise.
                  o     For example: (national) military bases are managed federally, but are located within (locally) provincial boundaries.
          Spillover and externalities
                  o     Provincial actions can affect other provinces
                  o     Federal programs will affect provincial programs
                  o     So: either all matters local are of national concern or all matters of federal concern are also local?
          Economic (federal) v. Socio-cultural (provincial) matters
                  o     The clear distinction between the division of economic and socio-cultural matters has broken down, too.
                                   For example: Federal implementation of CBC, multiculturalism, the Canada Council and Provincial emphasis on the economy in
                                    terms of maintaining provincial autonomy.
          All this to say that there is a lot of confusion in what level of government has jurisdiction, but the Constitution does provide broad boundaries to the ability
           of each level of government to act in an entirely unrestrained way. For example:
          Federal government is primarily responsible for
                  o     Macroeconomic management
                  o     Redistributive programs
                  o     Inter-regional trade and commerce
                  o     Transportation
          Provincial governments are primarily responsible for:
                  o     Education
                  o     Social services
                  o     Detailed regulation of individual and commercial life: “property and civil rights”
Reasons for the changes in the interpretation of the division of powers
          Changing roles that governments play: federal institutions are required to adapt to new roles for the state and to new relations between state and society.
           However, the fact that the government had to adapt doesn’t tell you which way it should adapt.
          1930s: After the great Depression, there was a feeling that a decentralized government could not take on responsibilities of economic and social
           development that were necessary in the modern state. Thus the division of powers had to be reworked.
          1940s: Parliament took over from provincial legislatures the jurisdiction of programs like UI, pensions, personal and income tax.
          Green book proposals: more federal power with the extension of welfare state policies like health care, post secondary education support, social
           assistance, pensions, guaranteed income support. This was resisted by provinces, but Parliament managed to implement them little by little. The costs of
           these programs were shared between the federal and the provincial governments.
          The new roles and balance of power led to different expectations on what federalism should be. Most thought of an effective and efficient Parliament as
           one that was centralized, in order to deliver the programs necessary for the postwar period.
                  o     Keynesian argument: overhaul taxes, smooth demand over aggregate economy, and this would work better if there were 1 authority. Also, the
                        provinces were too small to be able to manage the economy this way.
                  o     Welfare state argument: provinces lacked the resources to put in new policies.
Centralization Questioned
          All this to say that there were a lot of people concerned about the utility, the function of Federal legislative power over matters that would affect
           provincial policy.
                  o     However, by the 1970s, decentralization was looking good because of the possibility of experimentation and the limitations on some regions.
          Increased expectations and demands of citizens: interest groups
                  o     Their strategies were organized as a result of the political structure and the division of powers. For example, oil and gas was owned/regulated
                        provincially, so to influence it, lobbies focused their energies on provincial legislature, but the lobbies also had to go to the Federal power,
                        making them spread their attention and resources thinly across both levels of government.
          Community concerns pulled in both directions:
                  o     Strengthening Federal power:
                                   Great War created a sense of Canadian identity.
                                   Welfare state: social rights and a national standard across the country
                                   There was no longer tolerance for large differences in public services offered in different provinces.
                                   All this lead to an increase in Federal sympathy and power.
                  o     Strengthening provincial (regional) power:
                                   Strong appeals made for provincial autonomy especially in Quebec
                                   Provinces wanted to carry out federal functions, or maintain both provincial and federal responsibility in a form of cooperative
                                    federalism.
          Competitive state building: promoted overlap based on which view of community dominated: Federal (national) or Provincial (local).
          Governments can now almost always find a constitutional peg on which to hang its desired programs.

                                                                                    27
                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009   p. 28

Richard Simeon, “Criteria for Choice in Federal Systems” (CBp.198)

Simeon says that federalism is not an end in itself, and that people usually assess federalism in terms of one of three distinct bodies of theory:
1. Community (or diversity): linguistic dualism, regional diversity
         Federalism can accommodate a balance between different notions of community. In the contemporary world, most people belong to multiple
          communities, ranging from the family to humanity in general; federalism acknowledges this. Conflicts arise (e.g., Quebec nationalism) when different parts
          of the country hold different ideas of the balance between local and national community identity.
         Some people see this as a “minority rights” argument.
               examples of federal governments safeguarding minority rights:
                    Aboriginal rights in Canada
                    Blacks in the southern US
         Counter-argument: Provincial divisions are artificial and do not really represent communities.
                o    Some communities might not end up being recognized, if they are minorities within provinces or states.
                o    What conception of community is said to be embodied in political arrangements? Who is “us”?
                                Balance between national and regional political communities
                                Canada as one community, provinces and territories as 10 and 3 more
                                Linguistic, ethnic minorities
                                Federalism is a balance in the relationship between provincial and federal governments
                                Federalism involved multiple-community belonging: family, community, province, country
                o    Community is not necessarily regional or geographic:
                                Religious
                                Class-based (this is not our focus in the current discussion, however)

2.   Functional effectiveness: (also cf. “subsidiarity”)
    Federal and provincial governments are different elements in a single system
    Power is divided according to “which level can most efficiently carry out legislation”.
                Question of efficiency asks whether a program frustrates or facilitates government responsiveness.
                Critiqued for idea of “efficiency” which might compete with or even undermine democracy and other values (community voices)
         It tends to be liberal and individualist (relying on economics).
                Functionalism is largely embraced by economists and public administrators
         Functionalists are concerned with the burden of duplicating institutions, and the possibility of governments “passing the buck.”
         As Prof. Sheppard put it, “arguments about efficiency and effectiveness often cut both ways.”
                       o    The goal is to maximize capacity for each government to satisfy needs
                       o    Is functionalist federalism effective?
                                       No, it’s too decentralized, and thus there are too many rules
                                       No, it’s too centralized, and there is no room for local action
                       o    Discourages overlapping regulations, since this is not efficient.
                       o    Tend to discuss Federalism in terms of watertight compartments because it’s efficient
         Criticism of functionalist federalism: Efficiency by whose standards?
         Not all functionalist interests are framed in terms of region/geography: can examine the effectiveness of policy in regulating worker/owner relations,
          producers/consumers

3.   Democracy: (also cf. “subsidiarity”)
        One aspect of this theory is separation of powers, checks and balances, and limiting the role of the state. (However, modern critics associate federalism
         with excessive government.)
               o     Main classic argument in favour of federalism:
                                Fragmenting power prevents tyranny.
                                Argument for decentralization
                                            Problems: places a great amount of faith in the capacity of institutions to prevent tyranny.
                                            Too much government
                                            Protecting minorities frustrates majorities
       Another aspect is the idea of citizen participation and government accountability.
               o     Asks what are the consequences of different visions of Federalism in terms of participation, responsiveness, liberty, equality?
               o     Smaller units of government leads to increased participation and makes citizens feel involved
                                Problems: unity needs to be really small
                                Small units may lack resources, so a multi-level system works best
              However, there is the counter-argument that confusion between different levels of government reduces transparency. This is especially true where
               “executive federalism” takes over.
        Critiques of federalism
               o     Relations are negotiated by premiers, not citizens
               o     It frustrates majority rule
               o     By fragmenting groups, it inhibits national groups
        Frustrated provincial majorities:
               o     National government forces policies on unwilling provincial governments
               o     PQ: says that provinces can’t control their affairs if Ottawa controls so much.

    Although Simeon doesn’t mention it, another federalist value is experimentation: Small jurisdictions can act as “laboratories” for new policy ideas.


                                                                                  28
                                                                                           Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 29

A Note About Executive Federalism:
    Most constitutional cases in the late 19th and early 20th centuries dealt with federalism. Since then, the number of cases dealing with federalism has declined,
     but there has been a corresponding rise in executive federalism. Rather than going to court, the federal government and the provinces are more likely to
     negotiate (e.g. health care spending).
         Of course, going to court is still an option.
    Federalism has also changed due to the changing role of government: The environment, regional development, culture, health, social welfare, housing, human
     resources development, consumer protection: none of these are enumerated powers.

Bruce Ryder, “The Demise and Rise of the Classical Paradigm” (1991) (CBp.237)
           Basically, Ryder critiques the classical paradigm for being too deregulatory, but he criticizes the modern paradigm for being too inclined to compromise
            provincial autonomy.
Classical paradigm (Beetz)                                                            Modern paradigm (Hogg)
     exclusivity; “watertight compartments”; powers “mutually modified”                   allows overlap; “pith and substance”
     judicial activism
     deregulatory                                                                         judicial restraint
     safeguarding provincial autonomy                                                     maximizing legislative powers
                                                                                           risks compromising provincial autonomy due to “paramountcy” rule
     associated with JCPC (pre-1949), but:                                                associated with SCC (post-1949), but:
     used for economic regulation                                                         used for social and moral issues



Interpreting the Division of Powers
    The various doctrines interweave, and can provide different analyses of the same issue:
         pith and substance
         necessarily incidental or ancillary
         double aspect
    These are not unwritten constitutional principles; they are rather judge-made law.

Validity: Pith and Substance

“Pith and substance” is defined as the “matter” of the law, its dominant feature, its true meaning, how it can be characterized, or what it is about.
            The test has two steps:
            1. One has to identify dominant features of law (the “matter), then
            2. Assess if it falls under federal or provincial power.
     Once one identifies a law’s dominant feature, if it comes within the dominant head of power, it can be sustained even if it intrudes incidentally into another
      level of government’s jurisdiction. This is seen as reflective of the modern approach to constitutional interpretation, willing to engage the various levels of
      government in an area of law.




                                                                                 29
                                                                                              Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009        p. 30

Katherine Swinton, The Supreme Court and Canadian Federalism: The Laskin-Dickson Years (1990) (CBp.205)
   Sections 91 and 92 deal with the division of powers
          o    91: federal powers
          o    92: provincial powers
   91: federal power includes Peace, Order, and Good Government in the opening words: what does this mean? Some say that the matters enumerated in section
    91 are merely examples of some powers of Federal legislative power, and that the list is not exhaustive. Others say that POGG covers residual matters only.
         Some, such as Laskin, saw it as a general grant of power to Parliament.
         Others, such as Lederman, thought the enumerated powers were the express grants of power.
   Sections 91 and 92 are not exhaustive of Federal and Provincial areas of jurisdiction. New areas have emerged. For example, it does not enumerate aeronautics.
    So how does one characterize a piece of legislation as either provincial or federal?

Choosing between competing classifications:
3 steps:
(1) identify the “matter” of the statute
(2) delineate the scope of the competing classes
(3) determine the class into which the legislation falls

     (1)   The Matter
                       Inquire into the purpose of the statute: what is its legislative history, look into government reports, Hansard, and the effect of the legislation
                        might also be considered.
                       Some give more weight to the effects of the legislation, some give more weight to the purpose.
                       Deference to the purpose expands governments’ area of responsibility.
     (2) Scope of the competing classes
                       There is extensive overlapping regulation
                       “Double aspect doctrine”: some laws have both federal and provincial purposes
                       Both federal and provincial levels often have good reason for dealing with the same activity.
                       Lederman claims that prejudice-free clear thinking will lead to good judgment. However, it is clear that there is not simply one vision of the
                        division of powers.
    In practice, the courts tend to collapse these steps.
    The first step is controversial, because it’s unclear whether the courts should focus on the purpose or the effects of the legislation.
          This depends partly on ideas of judicial deference or activism.
    Contrary to this three-step test, the double aspect doctrine allows courts to uphold overlapping legislation.
    Swinton acknowledges the role of many different modes of interpretation, including historical, textual, ethical and prudential. She emphasizes that precedent
     plays an important role.

W.R. Lederman, “Classification of Laws and the British North America Act” (1981) (CBp.208)
     Take a specific law relevant to a set of facts and classify the law as federal or provincial. The fact that a law is about a federal part of the constitution does not
      mean it is necessarily excluded from provincial legislative power
The application of sections 91 and 92 of the BNA Acts
Categories of 91 and 92 are not mutually exclusive, they are co-encroaching.
     The enumerated powers in ss.91 and 92 are concerned with classes of laws, not classes with facts: “the regulation of trade and commerce” rather than simply
      “trade and commerce.”
           This means that overlap between the sections is inevitable, in spite of the last lines of s.91.
           The opening lines of each section, which refer to “all matters coming within the classes of subjects next hereinafter enumerated,” really mean “laws
            coming within the classes of laws next hereinafter enumerated.”
So, how does one determine what the “subject-matter” of a piece of legislation is? What is its meaning?
A rule of law expresses what should be human action or conduct in a certain factual situation

A part of a law’s intent is the effects of the observance of the law. The total meaning of the legislation cannot be assessed without considering these effects.
      Colourability: a law that means something different from the words on the page.
All effects of a law are parts of its meaning, but not all effects are equally important. Some effects are negligible compared to intended effects.

Lederman’s thesis: A rule of law for the purposes of the distribution of legislative powers is to be classified by that feature of its meaning which is judged the most
important one in that respect.

Which level of government will best provide for this situation?
New laws are not determined by precedent and changing times means changing importance of certain parts of a law.

   Lederman thought it a “false antithesis” to distinguish between the purpose and the effects of a rule. He would prefer to throw all such considerations together
    and to try to decide what is the most important “feature of meaning” of the legislation.
        He advocates the use of prudential and ethical approaches. (“Who is to be the physician?”)
        He qualifies this by advising the use of the doctrinal approach (stare decisis).
However, he qualifies stare decisis by referring to changing circumstances and conditions.

    Legislators may include a “stated purpose” in the legislation, but courts may second-guess this, and look for the “actual purpose” of the law, as in the Nova
     Scotia Morgentaler case:



                                                                                    30
                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009        p. 31


R v. Morgentaler [1993] 3 SCR 463. (CB p.213)
Jurisdiction     Nova Scotia
Facts            1988: SCC said criminal code provisions on abortion were unconstitutional
                 In January 1989, Morgentaler announced his intention to open an abortion clinic in Nova Scotia. In March 1989, the Nova Scotia government
                 enacted the Medical Services Act, whose stated purpose was to prohibit the privatization of medical services in order to maintain a high-quality
                 public health care system. Certain medical services, including abortions, could only be performed in hospitals, not privately-run clinics. Morgentaler
                 opened a clinic anyway and performed abortions; he was then charged with 14 violations of the Act. He did not deny the charges, but instead
                 claimed that the Act was ultra vires the provincial legislative power, and thus invalid.
Issues           Was the Medical Services Act valid provincial hospital legislation?
Holding          No.
Reasoning             Section 92 (7), (13), (16) justify provincial Medical Services Act
                      Challenged on Section 91 (27): criminal law
                      In pith and substance, this is criminal law, and is thus ultra vires.
                 Classification
                      The matter: the matter is the leading feature or the true character. This test must be flexible
                      The purpose and effect: the legal effect is how the legislation affects the rights and liabilities of those subject to its terms.
                      Use of extrinsic materials: in order to determine the background, extent, and purpose of the legislation, the court examined related
                       legislation, and the legislative history, including the Hansard.
                      Scope of the applicable heads of power: is this act regulating health care delivery or is it punishing a socially undesirable conduct (abortion)?
                       The federal government has legislative power over criminal law. The provincial government has legislative power over 92(7) hospitals and
                       92(13) and (16) property and civil rights, and matters of a local nature.
                 Regulation of abortion: any provincial jurisdiction to regulate delivery of abortion services must be solidly anchored in one of the provincial heads
                 of power which gives the provinces jurisdiction to legislation in relation to such matters as health, hospitals, the practice of medicine, and health
                 care policy.

                  Application of these principles to the case at bar
                  1) Legal Effect
                       Offense of the Act leads to significant fines. The legislation expressly prohibits the performance of abortions in certain circumstances with
                        penal consequences
                  2) “Beyond the four corners of the legislation”
                       Employs language that is virtually indistinguishable from the language found in the Criminal Code. Note: An absence of federal legislation
                        does not give space for the expansion of provincial jurisdiction.
                  3) Background
                       M was rumored to be opening a clinic, hence the government action to block his work. Hansard: shows prohibiting M was the central concern
                        of the legislature. Provincial objectives: to prevent a 2-tier system, to ensure quality, and to avoid duplication of medical costs. However, no
                        evidence that health and safety is an issue in M’s clinics. Government did not mention its concern for a 2-tier system until the second reading
                        of the bill in the legislature. No evidence of cost-effectiveness in terms of private clinics vs. public hospitals.
Ratio             Legislation whose pith and substance is outside of the jurisdiction of the legislative body creating it is ultra vires, even if it is classified within
                  appropriate jurisdiction.
Comments               This is an example of “colourable” legislation. Although the effectiveness of legislation is irrelevant to division of powers analysis, the effects
                        of the legislation are important, especially if the effects don’t seem to match the stated purpose.
                       The SCC appears to be a little pissed off that the Nova Scotia legislature was not respecting the SCC’s 1988 decision.
                       The SCC could have found just the provision on abortion invalid, but instead struck down the whole statute.

Canadian Western Bank v. Alberta 2007 SCC 22 (excerpt) (Supplement Vol. 1, pp. 7-10)
Jurisdiction   Alberta
Facts          Court dealing with issue of whether or not consumer protection legislation regulating sale of insurance could be applied to chartered banks which
               operate under the Federal Bank Act. The pith and substance doctrine was used in a greater discussion that the court used to set the stage for
               dealing with the interjurisdictional immunity and paramountcy issues in this case.
Issues         How does the pith and substance doctrine clarify questions of federalism?
Holding        …
Reasoning      Fundamental objectives of federalism
                          Reconcile unity with diversity
                          Promote democratic participation by reserving meaningful powers to the local or regional level
                          Foster co-operation among governments and legislatures for the common good
               This necessitates predictability of the division of powers between federal and provincial parliaments, but the interpretation of this division of
               powers must be compatible with the “living tree” vision of the constitution – must keep up with the changing social and political needs of
               Canada.
               Constitutional doctrine must facilitate, not undermine, “co-operative federalism” where overlaps will happen. Determination of the “matter” or
               “pith and substance” of the legislation under judicial review will determine what the dominant purpose of the legislation is, and the dominant
               purpose of the legislation will be analysed in the context of the S. 91 and 92 constitutional provisions to determine whether it is intra or ultra vires.
                          Purpose of legislation: intrinsic evidence (preamble to the legislation, purpose clause) and extrinsic evidence (Hansard, legislative
                           debates) used to ascertain true purpose
                          Legal effects of legislation: provincial tax on banks in this case is invalid because of the great effect on banks. Based on this effect, the
                           true purpose was for the regulation of banking activity.
               ...are the elements that determine pith and substance. Once this has been established and declared intra vires, secondary effects, even if they have
               results beyond the jurisdiction of the legislating body, do not render the legislation unconstitutional.
                                                                                   31
                                                                                                  Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009         p. 32

                     (The double aspect doctrine also recognises that overlap of jurisdiction is possible, and that both federal and provincial rules must be respected.
                     The federal paramountcy doctrine declares that if these laws clash, the federal law will trump the provincial law.)
                     In certain circumstances, certain powers of one level of government must be protected from intrusion by the other level. This gives rise to two
                     more doctrines: interjurisdictional immunity (allocation of powers) and federal paramountcy (when there is an impasse, the federal level
                     prevails.)
Ratio                Some degree of overlap is inevitable in most legislation. The dominant purpose of the legislation is the deciding factor in determining its status
                     as intra or ultra vires.
Comments              “Reading down”

Reference re Employment Insurance Act (Can.), ss. 22 and 23, [2005] 2 S.C.R. 669, 2005 SCC 56
Jurisdiction     AG (Canada) v. AG (Quebec)
Facts            Brief history of employment insurance in Canada: a constitutional amendment (1940) had allowed the federal government jurisdiction over
                 unemployment benefits.
                 Quebec had a strong women’s rights lobby that wanted more generous maternity benefits. The federal government was offering extended
                 maternity benefits beyond provincial legislation through Employment Insurance Act, and refused to negotiate with Quebec government. The issue
                 ended up in court and the Quebec government challenged the validity of the entire federal scheme to award maternity benefits as ultra vires.
Issues           Is the federal scheme awarding maternity/parental and adoptive benefits constitutionally valid?
Holding          Yes.
Reasoning        Only S. 22 and 23 of the Employment Insurance Act are in question
                 1. Analysis of legislation
                            PURPOSE: to provide financial support to workers temporarily out of the work force, in order to reduce their hardship and facilitate
                             their re-entry into the workforce
                            EFFECT: dominant effect: in line with purpose
                                        Secondary effect: does overlap with provincial maternity and parental benefits, but it is not the primary effect, so it is
                                         allowed
                 2. Analysis of constitutional provisions (identification of head of power)
                            Starting point: generous interpretation of the words of the provision (“living tree” approach), taken in their strictly legal context. This
                             interpretation may take into account historical elements.
                            Unemployment benefits amendment was put into effect in order to curb the problem of unemployment and to create a framework for
                             the re-entry of workers into the workforce:
                                                 i. Program based on social risk
                                                ii. Purpose: preserve workers’ economic security and ensure re-entry into labour market
                                               iii. By replacing lost income temporarily
                                               iv. If employment is interrupted.
                            The amendment placed unemployment insurance in the hands of the federal government
                 3. Putting the two together
                            The legislation conforms to these constitutional provisions
                 AG of Quebec argues that the legislation is a measure to help families. Court decided that although this is a secondary effect of the legislation, it is
                 not its pith and substance – its pith and substance is to replace lost income during interruption of employment.
Ratio            Even though legislation may have secondary effects not within the jurisdiction of the legislating power, if its pith and substance are intra vires,
                 the legislation is valid.
Comments              Five of seven judges on the bench were women, including Chief Justice McLachlin!
                      Example of court finding the reasoning to come to the decision they knew they had to uphold?
                      Very broad interpretation, as well as an example of divergent thinking to conceptually frame the analysis to draw parallels with the desired
                       aspects of the constitution.
                      QUESTION DEALT WITH: are we dealing with the meaning of “unemployment” as it was interpreted in 1940, or has the meaning of that word
                       changed over time? “Living tree” approach
                      This comes up often in constitutional cases (e.g. Same sex marriage)
                      Concern with this approach: the broader the interpretation of the words of the constitutional provisions, the broader the power of the
                       federal government? Tension between political interests and getting the interpretation of the constitution right.
                      UNDERLYING CONCERNS ABOUT FEDERALISM: not too much discussion of how the outcome of this case relates to underlying policy
                       questions about federalism – maybe that is okay, but maybe we’re not questioning enough why this needs to be done at the federal level!
                       However, this may not be in the realm of the courts at all.

Validity: Necessarily Incidental or Ancillary Doctrine (CB pp. 224-230)

The Necessarily Incidental/Ancillary Test: (Dickson CJC, GM)
     1. Does the impugned provision intrude on the other level of government’s jurisdiction, and if so, to what extent?
     2. Is the impugned provision contained within a valid regulatory scheme?
     3. Does the impugned provision “fit” into the valid regulatory scheme?
               “Sliding scale analysis”

       Despite references to exclusivity, the tendency has been to allow some overlap between ss. 91 and 92; if the “pith and substance” of legislation is within a head
        of power attributed to the level of government, even if there is some overlap with the competing level’s heads of power, the overlap has been deemed
        secondary or incidental and thus acceptable.
       Necessarily incidental/ancillary doctrine allows a provision to infringe on the opposing jurisdiction insofar as it is integrated into a larger piece of legislation that
        is on the whole intra vires, and of which it is a necessary part
             If it is not necessary, the provision will be separated, or invalidated. In other words, the impugned provision has to be vital to the ‘greater scheme’
                                                                                        32
                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 33

          Substantial intrusion by a provision may be allowed if it is declared ‘necessarily incidental’.
    “…if the larger scheme of which the impugned provision is part is constitutionally valid, the impugned provision may also be found to be valid because of its
     relationship to the larger scheme.”
          Ex. federal criminal abortion legislation is intra vires even if it does touch on health, hospitals and the medical profession (provincial heads of power).
    This approach was invoked by Anglin CJC in his dissent in Eastern Terminal Elevator.

General Motors of Canada Ltd. v. City National Leasing [1989] 1 SCR 641. (CB p.225&371)
Jurisdiction    Ontario
Facts           City National Leasing (CNL) sued GM for its discriminatory pricing policy (anti-competitive behaviour), as authorized by a provision of the Combines
                Investigation Act (now the Anti-competition Act). GM argued that the provision was ultra vires the federal government because the creation of civil
                causes of action is part of “property and civil rights,” and thus under provincial jurisdiction.
Issues          Was the impugned provision sufficiently integrated into the federal statute (did it “fit” enough) to sustain its constitutionality?
Holding         Yes. It was a small, but necessary part of a piece of legislation dealing with “general regulation of trade.”
Reasoning                        The SCC found that, although the impugned provision appeared to encroach on provincial sphere, “fit” within the Combines
                                  Investigation Act, which was valid as a whole.
                Dickson CJC’s judgment became a three-part test for the necessarily incidental doctrine:
                1. Does the impugned provision intrude on the other level of government’s jurisdiction, and if so, to what extent?
                2. Is the impugned provision contained within a valid regulatory scheme?
                3. Does the impugned provision “fit” into the valid regulatory scheme?
                                 Even though this intruded on provincial jurisdiction, it is necessary to the broader Combines Investigation Act – it was important
                                  to have a civil remedy articulated in the act itself.
                                 Dickson CJC also set out five criteria for the general trade and commerce power (see p.33), adding two conditions to a list begun
                                  by Laskin CJC.
Ratio           A provision that intrudes on the other level of government’s jurisdiction is still intra vires if it is a necessary part of a larger piece of legislation
                that is in pith and substance intra vires.
Comments        Dickson CJC’s test may be adapted to a kind of “sliding scale” analysis: If the impugned provision interferes significantly with the other level of
                government’s jurisdiction, then the “fit” with the regulatory scheme will have to be close: i.e., one may have to establish that the government has
                to include this provision in order to achieve its regulatory objectives. In this case, the SCC found that the interference with provincial jurisdiction
                was minimal.
                QUESTION: DO WE REALLY NEED THIS DOCTRINE? Isn’t it covered by the pith and substance doctrine already? I think it is necessary when the
                provisions in question are not in pith and substance under the jurisdiction of the head of power governing the act as a whole...
                      Pith and substance in and of itself is not enough to protect the provisions from being struck down – necessarily incidental/ancillary doctrine
                       comes in to protect the provisions

    One way to apply the necessarily incidental doctrine is to develop a good pith-and-substance analysis, and then see if exceptions, such as this one, are an issue.
    According to some, this doctrine is just another version of “pith and substance.”
    Global Securities Corp. v. British Columbia, (2000): an example of a case in which a province successfully defended an intrusion into federal jurisdiction by relying
     on the necessarily incidental doctrine. (I don’t think it’s necessary to actually know the facts of the case.)

Validity: Double Aspect (CB pp. 231-239)

PROCESS: analyze each piece of legislation on its own, determine their validity, and if they are both valid, see whether they conflict or whether they are in harmony
(Multiple Access)

W.R. Lederman, “Classification of Laws and the British North America Act” (1981) (CBp.231)
    Lederman says that overlapping of ss.91 and 92 powers is inevitable. Some of this can be dealt with through “mutual modification” (judges’ reassessment of
     “property and civil rights” and “regulation of trade and commerce”, heads of power that logically overlap, to make them more mutually exclusive). However,
     some overlap inevitably remains. There are two ways the courts can deal with this:
          The necessarily incidental doctrine: This involves a judgment that the provincial legislation is less important than the federal legislation.
          The double aspect doctrine: If the courts find that both pieces of legislation are equally important, they can allow both of them to stand (following Hodge).
           Equal validity of both federal and provincial laws.
A problem thus arises if the two pieces of legislation are totally inconsistent – i.e. requiring citizens to respect laws that are conflicting (when it is impossible to
respect both at the same time). Then the paramountcy doctrine can be applied. (Lederman takes a “narrow” view of conflict of laws.)

    This doctrine overlaps with the other two doctrines. The pith and substance doctrine works well when there is one key dominant dimension that can determine
     the validity of the legislation. The double aspect doctrine, however, works well when provincial and federal purposes co-exist.
    The double aspect doctrine has its origin in Hodge v. the Queen (see p.21)

Multiple Access Ltd. v. McCutcheon [1982] 2 SCR 161. (CB p.232 and p.260)
Jurisdiction     Ontario
Facts            A shareholder sued Multiple Access Ltd. under the Ontario Securites Act alleging that insiders had traded on inside information. The alleged insider
                 traders argued that the Ontario statute could not apply because Multiple Access was a federally regulated company, registered under the Canada
                 Business Act, which also contained provisions dealing with insider trading. According to the paramountcy doctrine, they claimed, the federal
                 legislation on insider trading should have applied instead, and the provincial legislation should have been rendered inoperative.
Issues           Which of the two insider trading laws should apply, provincial or federal?
Holding          Both!
Ratio            Dickson J found that the Ontario legislation was valid under “property and civil rights,” and that the federal legislation was valid as a regulation of a
                 company. With regard to the double aspect doctrine, the insider trading provisions were equally important to both regulatory schemes, so it was
                                                                                   33
                                                                                           Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 34

                   not easy to make one trump the other (see Lederman CBp.231). And as for paramountcy, Dickson J used the narrow version of conflict, finding that
                   it was possible to comply with both laws, so there was no conflict. He quoted Lederman to say that duplication is “the ultimate in harmony.”
Comments           Double aspect: first look at the validity of the federal s. 91(2)/POGG.
                   Legislation in reference to incorporated companies.
                   As long as they don’t destroy or sterilise functions or activities.
                   We’re getting out of water tight compartments a bit here.
                   Double aspect is fine unless they can’t. In a conflict, federal laws prevail.
                   The contexts of the provincial law are trading and securities, but the context of the federal is company law.
                   -Narrow interpretation of conflict for dual compliance by Dickson after Ross.

The Supreme Court has recognized concurrent jurisdiction based on the double aspect doctrine in relation to a broad range of subject matters including
    Highway traffic
    Moral regulation of films and videos
    Nude dancing
    Gaming
    Temperance
    Support and custody in divorce proceedings
    Interest rates
    Insolvency

The double aspect doctrine has been frequently relied on with success in relation to
    Public order
    Safety
    Morality

Possible other areas of application:
    CHILD ABUSE: a topic with both federal (criminal) and provincial (family) aspects. And there are so many more...
          Hate speech; environmental regulations; etc...


Beetz J (predictably!) has argued that the double aspect doctrine should be invoked with caution as it may result in increased federal influence in the provincial
sphere.

B. Ryder, “The Demise and Rise of the Classical Paradigm in Canadian Federalism: Promoting Autonomy for the Provinces and First Nations” (CB p.
237)
    Highlight of tensions between overlap and exclusive spheres in terms of federalism, provincial/federal rights, and possible regulatory gaps
          Ryder illustrates how the classical paradigm favoured the principle of jurisdictional exclusivity which was compared to the naval “watertight compartment”
           (compartiment étanche). To promote exclusivity judges would declare acts ultra vires, or ‘read down’ the provisions to contain them within the desired
           jurisdiction. Mutual modification of heads of power was part of this process.
          The more modern approach, since WWII, has been to allow for more overlap and interplay, but this process has not been steady nor without exceptions.
           The modern approach simply prohibits each level of government from enacting laws whose predominant characteristics (pith and substance) is the
           regulation of a matter that is within the other level of government’s jurisdiction.
          The classical paradigm puts judges in the forefront as they often tell governments what they cannot do, even though government doesn’t normally fit into
           neat little boxes. It’s a paradigm of judicial activism that often doesn’t allow for sought after legislative exhaustiveness.
          The modern paradigm promotes exhaustiveness, through judicial restraint, but it is perhaps negative for provincial autonomy, because of federal
           paramountcy.
          Ryder argues that the paradigms are based less on era than they are on the subject matter to which they apply: the deregulatory bias of the classical
           paradigm has been applied to legislation that is viewed as interfering with the operation of free markets; the judicial tolerance of the modern paradigm
           has been applied to legislation perceived to deal with issues of morality or social order.
          Ryder say’s it’s not and hasn’t been, an ‘either/or’ choice.

(I think Ryder’s point is interesting but perhaps not so useful for us --but who knows?)


Applicability: Interjurisdictional Immunity (CB pp. 239-254)

    Interjurisdictional immunity is another basic interpretive doctrine, but is a departure from “pith and substance” arguments that promote concurrency. It
     promotes exclusivity. It prevents overlapping legislative reach.
    Interjurisdictional immunity protects only federal jurisdiction from the impact or interference of otherwise valid provincial enactments. It prevents even an
     incidental impact.
    This doctrine carves out spheres of exclusive federal jurisdiction into which a province cannot reach.
           In virtually all cases, this doctrine is used to favour federal jurisdiction, even though officially it is considered reciprocal
    It becomes relevant when general provincial legislation (e.g., labour standards) is applied to federally regulated entities (e.g., nuclear power plants).
    This doctrine never challenges the validity of the law itself, just its application to federal entities.
    The Bell #1 case in 1966 had stated that a valid provincial law (in this case, minimum wage legislation) could not apply to federal undertakings if it affected a
     vital part of their operation or management.



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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 35

Commission du Salaire Minimum v. Bell (Bell #1) [1966] SCR 767. (CB p.240)
Jurisdiction   Quebec
Facts          Bell rejected the provisions of the Commission, alleging that, as a federal undertaking under, a provincial levy could not be imposed on it, nor did
               provincial regulations concerning a minimum wage, or working hours and conditions. It was argued this was true even in the absence of any
               competing federal legislation pertaining to the same matter.
Issues         Can a Quebec minimum wage law apply to Bell (or other federally regulated undertakings?)
Holding        No.
Reasoning      The SC decision broadened the test used in the past to protect federal undertakings: whereas provincial laws could previously affect them insofar
               as they didn’t result in “sterilization” or “impairment”, the judges ruled that if the undertakings were affected in a vital part of their activity, the
               provincial legislation was invalid in that respect. So the immunity of federal undertakings was increased, and the provincial legislation in the Bell #1
               case was struck down -but only in relation to federal undertakings.
Ratio          A valid provincial law cannot apply to federal undertakings if it affects a vital part of their operation or management.

    The interjurisdictional immunity also covers aboriginal title, possession rights to reserve property, or matters at the heart of aboriginal identity, and political
     rights pertaining to federal elections. Provincial inquiries and police disciplinary measures have also been held to be invalid in relation to the RCMP.
    Interjurisdictional immunity has been controversial as it allows exclusivity to the federal jurisdiction and is at odds with the modern trend towards to
     concurrency/overlap.
    Hogg has pointed out some flaws in the interjurisdictional immunity doctrine:
          For every time it has been applied, the pith and substance has been applied in countless other examples;
          It would be simple enough to allow provincial legislation to operate in the absence of federal legislation and, upon enactment of federal legislation, allow
           paramountcy to apply where different measures are desired (no minimum wage or a lower or higher one, for example).
          Courts could also read down the provisions of the enactment that are thought not applicable to federal endeavours.

McKay v. The Queen, [1965] SCR 798. (CB p.242)
Jurisdiction    Ontario
Facts           The McKays put an sign on their lawn during a federal election, and were convicted under a municipal by-law which prohibited lawn signs in
                general, except for real estate, trespassing, and safety signs.
Issues          Could a municipal (i.e., delegate of provincial government) law be applied to the sphere of a federal election?
Holding         (5-4) No.
Reasoning       Cartwright, J. [majority]:
                     If a law can be read in two ways, one of which is intra vires and the other which is not, it will be interpreted the first way only. Legislation
                      cannot do indirectly what it cannot do directly; it follows that legislation cannot use general words to effect a result that would be beyond its
                      powers if it used specific words. Federal elections are an exclusive federal sphere, so interjurisdictional immunity applies.
                Martland J. [dissent]:
                     Nothing in the federal power over elections gives anyone a specific right to erect a sign for the purposes of political propaganda, and that the
                      legislation is in pith and substance property and civil rights.
Ratio           Example of reading down of provincial law according to interjurisdictional immunity.
Comments             The casebook notes that the interjurisdictional immunity doctrine has become obsolete as a way of protecting rights since the advent of the
                      Charter – in this case, freedom of speech is more likely to be used.
                     The sign was not found in property and civil rights in the majority.
                     [244] cannot do indirectly what you can’t do directly.

Commission de la Santé et de la Sécurité du Travail v. Bell (Bell #2) [1988] 1 SCR 749. (CB p.246)
Jurisdiction    Quebec
Facts           A pregnant employee of Bell Canada sought to be reassigned to a safer task, following Quebec labour laws, which would normally be under
                provincial jurisdiction (“matters of a local or private nature”, thus, “health”) – labour relations and working conditions also normally fall within
                provincial jurisdiction (“property and civil rights”)
Issues          Could a Quebec labour or health law apply to employees of Bell Canada?
Holding         No.
Reasoning       SCC ruled once again that such legislative enactments could not be applied to federally incorporated companies or other federal undertakings. The
                latter, because they are located under federal heads of power, would have to be regulated by federal legislation on working conditions and labour
                relations. “Since the working conditions and management of an undertaking are vital or essential parts of the undertaking, it follows that the
                Quebec act could not apply to them.” This is again an application of interjurisdictional immunity.
                Beetz J. considers the interjurisdictional immunity doctrine at length, including a discussion of Bell #1 and Hogg’s criticisms of it. He clarifies the
                doctrine by saying that interjurisdictional immunity applies only when the application of provincial laws would “bear upon *federal+ subjects in
                what makes them specifically of federal jurisdiction.”
Comments             This case was part of a trilogy dealing with the application of provincial health and safety laws to federal undertakings.
                     Beetz J. is known for being a provincial rights advocate, and yet here he empowers the federal government – but this is with the vision of
                      exclusive spheres approach to the constitution, which will also protect provincial autonomy.
                     Beetz J.’s presentation of health as a provincial matter is “simplistic” according to Prof. Sheppard.
                     The term “interjurisdictional immunity” was invented by critics of the doctrine.
                     Following Hogg’s criticism, couldn’t this case have also been decided on the basis of paramountcy? Only if one takes the “broad” approach to
                      conflict of laws.
                     Double aspect does not apply since both legislators were pursuing the same objective in the same way.
                     Conclusion: provincial law should be read down (meaning, read narrowly)

Example of a case in which interjurisdictional immunity was disregarded:

                                                                                  35
                                                                                                     Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009                p. 36

R. v. Canadian Pacific Ltd., 1995
The case involved a controlled burn of dry grasses on the railway’s property. The burn produced a large quantity of smoke that was a nuisance for people in the area
and a violation of an Ontario environmental law. The railway invoked interjurisdictional immunity in its defence. The court, in an oral reasoning, relied on earlier case
law to find that the provincial law should apply. No clear reason was given, but it could be assumed that it was because burning grass was not ‘vital’ to the operations
of the federally regulated corporation.

    It’s been suggested that the interjurisdictional immunity doctrine has been used by provincial rights advocates as a way of dodging the more powerfully centrist
     paramountcy doctrine.
    Hogg argues that there is no need for an interjurisdictional immunity doctrine. He says that interjurisdictional immunity is only relevant in the absence of federal
     legislation, because otherwise the paramountcy rule could apply. In such situations, the federal government should just legislate!
                     My counter-argument: either one (courts or legislature) is an appropriate avenue. New legislation does not apply retroactively, but a court can limit the application
                      of a law if someone’s rights have already been violated... therefore, it is not necessarily redundant
          Prof. Sheppard gave as an example the Paul case, in which there was no federal family law to protect an Aboriginal woman on a reserve getting a divorce
           (exclusive order of possession of the matrimonial home, not granted because of the issue of interjurisdictional immunity)
    Exceptions are sometimes made for environmental legislation, as in the case of Canadian Pacific Railway v. Corporation of the Parish of Notre Dame de
     Bonsecours, [1899] A.C. 367.
    In the Irwin Toy case, a Quebec law prohibited advertising aimed at children under 13. The toy company argued that this limited freedom of expression, and
     that it encroached on the federal sphere of television broadcasting. The SCC allowed the law because it applied to advertisers rather than to broadcasters
     themselves. (This case added a new layer of complexity to the doctrine.) Irwin Toy also challenged this law under the Charter. This dual approach (federalism
     and charter) is very commonly used.
          “Vital part” test properly determines the scope of the interjurisdictional immunity doctrine when a provincial law applies directly to a federal
           undertaking
          “Sterilization or impairment” test used when provincial law applies indirectly to the undertaking (CB pp. 253-254)

    The OPSEU case in 1987 concerned provincial legislation prohibiting provincial civil servants from running in provincial and federal elections without taking a
     leave of absence. In this decision, the majority upheld the legislation and distinguished McKay. Dickson and Lamer JJ would have overruled McKay altogether.

    There is no corresponding provincial doctrine to counter interjurisdictional immunity.
    Fact situations can push the limits of the doctrine: e.g., the construction of a runway at an airport.
    Interjurisdictional immunity in federal jurisdiction over Aboriginal peoples: s.88 of the Indian Act makes a provision for general provincial laws to apply to
     Indians: e.g., speed limits on a highway!
          The Kitkatla Band case concerned provincial legislation regulating interference with Aboriginal rock paintings and heritage objects—it gave the minister
           power to give permits to interfere.
          What about non-smoking regulation – does it apply on a reserve? The examples go on and on.

    Canadian Western Bank v. Alberta (2007) (see below) greatly limits the impact of interjurisdictional immunity.

Operability: Paramountcy (CB pp. 254-272)

    When there are two conflicting pieces of legislation, federal and provincial, the courts will assess the validity of each. If both are valid, paramountcy might be
     applied.
    Valid federal legislation is generally paramount over valid provincial legislation, except in certain specific cases (e.g., agriculture and immigration (joint); export
     of natural resources between provinces (paramountcy only in the case of conflict) old age pensions (provincial paramountcy!!) — s.94A)
    This doctrine was crafted entirely by the courts. Drafters of the 1867 Constitution were naive enough to think there would be no overlap.
    Paramountcy doesn’t strike down the provincial legislation, but just renders it “inoperable” as long as the federal legislation is in effect. Corollary: once the
     federal law is repealed, the provincial legislation becomes operable again.
    How to determine whether there is really “conflict” between the two pieces of legislation.
          The narrow version of the paramountcy doctrine states that there is only conflict when it is impossible to comply with both laws. (“express conflict” or
           “impossibility of dual compliance”)
          The broad version of the paramountcy doctrine states that if the federal government has legislated within a certain area, provincial law is redundant, and
           therefore inoperable. (“covering the field” or “negative implication”)
    In modern times, the application of paramountcy has been narrowed: courts have preferred to allow concurrent legislation when reasonable. A broad
     interpretation is articulated by the out-of-favour “covering the field test” by which the mere fact that Parliament has seen fit to legislate in an area was
     sufficient to prevent or oust provincial legislation. Today the test is based on the “impossibility of dual compliance”.

Ross v. Registrar of Motor Vehicles, [1975] 1 SCR 5. (CB p.255)
Jurisdiction     Ontario
Facts            Ross was convicted for impaired driving, and was sentenced under federal criminal law to have his license suspended for six months, except that he
                 could drive to and from work. The provincial law that regulates drivers’ licenses also totally suspended Ross’s license for three months.
Issues           If there was a conflict between the federal and provincial legislation, would the rule of paramountcy mean that the provincial legislation would not
                 apply?
Holding          No (5-2)
Reasoning        Pigeon J [majority]: Narrow interpretation of the doctrine of paramountcy
                       1. Provincial legislation valid – yes.
                       2. Federal legislation valid – yes.
                       3. Conflict? – No. They can both apply concurrently.
                 There is a difference between a penalty for an offence (criminal code) and a matter of regulation for vehicle licensing (provincial regulation of
                 transportation). However, in this case, the Criminal Code allowed the judge to impose further restrictions, but not to indulge. Therefore, his

                                                                                          36
                                                                                                Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 37

                     indulgence cannot be said to be part of the Criminal Code provision and the provincial law can also apply here.
                     Judson and Spence JJ [dissenting]:
                          3. Conflict? – YES. The federal law must trump.
Ratio                Pigeon J. held that the federal legislation had not been intended to “state exhaustively” the law in this area; therefore both pieces of legislation
                     could apply. (Pigeon used the narrow version of conflict.)Z
Comments                 Prof. Sheppard agrees with the dissent in this case—she thinks that the majority used too narrow a definition of “conflict.” (It was specified in
                          the sentence that his driver’s license was not to be suspended!)
                         Impossibility of dual compliance test  paramountcy.

       It appears that the courts’ underlying objective in many of these cases is to uphold both pieces of legislation. (see the Multiple Access case)

Bank of Montreal v. Hall, [1990] 1 SCR 121
Jurisdiction   Saskatchewan
Facts          Hall, a farmer, borrowed money from the Bank of Montreal to buy some machinery, with the machinery as security. He failed to pay the loan, so
               the bank seized the machinery according to the federal Bank Act, but in contravention of certain procedures required by the Saskatchewan
               Limitation of Civil Rights Act (giving of notice before seizure).
Issues         Could the provincial law apply?
Holding        No.
Ratio          There was a conflict between the federal and provincial laws. La Forest J. used a “broad” notion of conflict. He held that the “essence” of the
               federal legislation, which was to provide banks with a national regime of security for loans, would have been undermined by allowing the provincial
               legislation to apply. The federal scheme intends to provide mechanisms for easy credit, with the corollary of easy seizure. The more stringent
               provincial legislation will frustrate this process, so it cannot apply concurrently. *note pith and substance as the first step here.
Comments       This seems totally inconsistent with the Multiple Access and Ross judgements; it would have totally been possible for the bank to comply with both
               the federal and provincial legislation.
               -Broader definition of conflict: will the parliament’s purpose be frustrated? [267]
               -Language of compliance
               New idea coming in here: incompatibility of purposes

       Another case in which the courts took a broader view of conflict was Law Society of British Columbia v. Mangat, 2001 SCC 67, which concerned a federal law
        allowing legislation to be made allowing non-lawyers to act as counsel in immigration hearings. This appeared to conflict with a provincial law prohibiting non-
        lawyers from acting as counsel for money. Technically, it may have been possible for anyone to comply with both laws by becoming a lawyer, but to limit the
        law thus would have been contrary to Parliament’s intentions.

Canadian Western Bank v. Alberta, 2007 SCC 22 (Supplement Vol. 1, pp. 15-26)
Jurisdiction   Alberta
Facts          CWB in Alberta provided credit card balance protection insurance. The provincial Insurance Act required all insurance providers (including travel
               agents and car dealerships) to comply with certain regulations. CWB claimed that as a federally regulated body, it was not required to comply with
               the provincial regulations, which were put in place as “consumer protection legislation”. CWB claimed also that federal regulations already cover
               “agency”, and that as such, the provincial government cannot regulate CWB’s acting as an insurance agent.
               The appellants’ argument was that when banks promote credit-related insurance, they are carrying on the business of banking, not the business of
               insurance. So, the issue is “whether the authorized creditor insurance products are themselves so vital and essential to lending that they join
               lending at the core of banking” (transcript, at p. 34).
Issues         Is the Insurance Act applicable to CWB’s promotion of insurance products as a federally regulated institution?
Holding        Yes.
Reasoning      [Discussion of Pith and Substance – see above]
               Interjurisdictional Immunity:
                    The court traces the development of the doctrine, and then takes it one step further:
                    Interjurisdictional immunity does seem to speak to exclusive spheres – “watertight compartments”
                    Sterilization/paralysis requirement loosened
                    Vital affects approach – does the provincial legislation affect a vital or essential part of the federal regulation?
                    Narrowing of the test  not only does it have to affect (connotation: ambiguous – positive or negative), but it has to impair (adverse
                     consequences) – rejection of the loosening of the sterilization/paralysis approach in Bell #2.
                    The “vital affects” approach is also used to validate/invalidate provincial legislation to Aboriginal reserves.
                    Interjurisdictional immunity should be mostly limited to matters to which it already applies by precedent.
               Paramountcy:
                    When operational effects of provincial legislation are incompatible with federal legislation, the federal legislation must prevail and the
                     provincial legislation is rendered inoperative to the extent of the incompatibility. The main difficulty consists in determining the degree of
                     incompatibility needed to trigger the application of the doctrine of federal paramountcy.
                    Controversy: broad interpretation of incompatibility has the effect of expanding the powers of the central government; narrow
                     interpretation gives provincial governments more latitude.
                    Test for sufficient incompatibility to trigger application of paramountcy doctrine laid out by Dickson J. in Multiple Access Ltd. v. McCutcheon
                     (see above):
                    In principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in
                     operation (where one cannot comply with both laws at the same time) (CB p. 191).
                    HOWEVER: conflict can also arise when respecting provincial legislation frustrates the purpose of federal legislation (Bank of Montreal v. Hall)
                     – Parliament’s intent must be taken into account.
                    Parliament cannot “occupy the field” either – this interpretation would stray from the path of judicial restraint.
                    Onus is on the party relying on the doctrine of paramountcy to prove that the laws are incompatible.
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                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 38

                        In this case, the word “Agency” is actually defined differently in the two acts, so there is no conflict that would call for federal paramountcy.
Ratio              The provincial regulation does not trench on the vital or essential parts of the federal regulation, so it is enforced.
Comments           Compare with Bell #2, in which this federally regulated corporation did not wish to be bound by provincial worker’s protection regulations. Why
                   distinguished? Because of how important the regulation of working conditions are to the functioning of a business. The insurance issue is not “vital”
                   to banking, while the regulation of working conditions is “vital” to the running of a business and the prices they have to maintain.

Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188, 250 D.L.R. (4th) 411
Jurisdiction   Alberta
Facts          Tobacco advertising regulations at both the federal and the provincial level – provincial regulations were more stringent, and the RB&H went to
               court saying that the federal regulations had already “covered the field”
Issues         Does the federal regulation have paramountcy over the provincial regulation?
Holding        No. Appeal dismissed.
Reasoning          Is there conflict between these two laws?
                   Purpose of federal law: to protect consumers, especially young people, from tobacco products. Provincial law goes even further to
                    accomplish this objective – therefore, no conflict.
                   Can both laws be complied with concurrently? Yes – in one of two ways – either to limited access by young people to areas where tobacco
                    products are displayed, or not to display tobacco products at all.
Ratio          Concurrence of purposes renders both federal and provincial legislation intra vires. No need for paramountcy doctrine.

    S. 92(10a,b,c) - nuclear power to unionize – which law applies? Provincial collective bargaining laws, or federal jurisdiction over nuclear power regulation? –
     what is “core”? what is “essential”?


Peace, Order and Good Government
    What does “Peace, Order and Good Government” say about the role of the state?
    The original draft said “Peace, Welfare and Good Government.”
    Nowadays it’s rarely parsed out: it’s become “POGG.”
    The text literally extends the POGG power to all matters except the enumerated provincial powers.

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, 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; and
for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act)
the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to
say

91 (27). Federal Criminal Power - The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

92 (13). Provincial Powers over Property and Civil Rights - 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 property and civil rights in the province and 92 (16) Generally all Matters of a merely local or private
Nature in the Province

POGG, which appears in the opening words of s. 91 of the Constitution Act, 1867, has been interpreted in 2 primary ways:
1.       As a comprehensive grant of legislative authority, with the subjects enumerated in s. 91 being purely illustrative;
2.       As a purely residual power, from which anything enumerated in s. 92 must be subtracted.

There are 4 distinct branches of the POGG power (the 4th one articulated by Monahan, but Sheppard thinks that he is right), which can be relied upon to support the
validity of federal legislation:
        1. Emergency branch
        2. Residual gaps branch
        3. National concern branch – comes up in Anti Inflation Reference and is rejected by Justice Beetz and others. The idea behind this is that there are some
             matters that are so important that they should be understood to come under federal jurisdiction, pursuant to our understanding that the federal
             government should have jurisdiction over matters of national importance.
        4. Interprovincial matters – May not be hugely significant, but has a provincial dimension. 2 most significant are Emergency and National Concern branch.
     What are the underlying values related to federalism, which influence these approaches (justifying extension of federal power)?
      Judges in favour of philosophy would expand the national concern branch. This national concern branch is the most controversial.

    What are the underlying values related to federalism, which influence these approaches (justifying extension of federal power)?
    Judges in favour of philosophy would expand the national concern branch – this is the most controversial branch of the POGG power

    If one were trying to justify federal legislation, one would want to find an enumerated head of power first, and then turn to POGG.

The distinguishing feature of the modern interpretation of POGG has been the re-emergence of the national concern doctrine (first introduced by Lord Watson)
    Allows for federal legislation in situations of national concern apart from emergencies.

The national concern doctrine (NCR) was given its modern formulation by Viscount Simon in AG Ontario v. Canada Temperance Federation (1946)
    Also expanded on the scope of POGG power by recognizing the power to legislate for the prevention of an emergency



                                                                                   38
                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009        p. 39

Reference re Anti-Inflation Act, [1976] 2 SCR 373. (CBp.281)
Facts            The federal government enacted a powerful series of price, income and profit controls for professions and large businesses (500+ employees). The
                 provincial public sector (education, health, etc.) was not explicitly covered, but was addressed by federal-provincial agreements with eight of ten
                 provinces. (B.C. and Saskatchewan did not sign agreements, but they supported the Act nonetheless.) The preamble to the Act called inflation “a
                 matter of serious national concern” but did not use the word “emergency” or “crisis.” Trade unions were outraged and the Canadian Labour
                 Congress intervened in the case.
Issues           Was the anti-inflation legislation ultra vires? Were the social and economic circumstances such as to enable Parliament to act on the basis of its
                 POGG powers?
Holding          Yes.
Reasoning        Laskin CJC (CB p. 282): question not whether there was in fact an emergency, or whether Parliament had declared there to be an emergency, but
                 whether Parliament had a rational basis to believe that there was an emergency. Laskin CJC found that Parliament had such a basis. He based his
                 decision on extrinsic evidence: economic studies, etc. It was not the courts’ role to assess Parliament’s ability to respond the emergency (Laskin
                 deferential to legislative power). However, he rejected the idea that Parliament could act on the mere basis of “serious national concern.”
                 Laskin CJC also suggested that the Act could have been upheld under the general branch of the trade and commerce power, although this had not
                 been argued.
                           Strong Central Govt
                           Believed that S. 91’s term “peace, order and good governance” constituted a “general power” which the enumerated powers in S. 91
                            were illustrative only.
                           He disagreed with Privy Council, who focussed on enumerated poweres as he felt that courts should focus on whether there was a
                            federal or provincial “aspect” so that there could at times, even be regulation by both levels.
                           Rejects territorial approach to jurisdiction which gives exclusive jurisdiction to one level
                           Believed that law could evolve to require federal attention and that jurisdiction needed to be flexible to serve social needs – but his
                            functional approach seems to lend itself to expansion of fed powers

                  Beetz J (CB p. 289), dissenting, thought that Parliament should explicitly use the word “emergency” if it wanted to rely on the emergency powers.
                  Beetz J. warned against the “national concern” branch of POGG, based on policy arguments (floodgates/slippery slope). However, he allowed that
                  the national concern branch of POGG could be applied to a new matter if it had “a degree of unity that made it indivisible.” Inflation is an age-old
                  phenomenon... (His reasoning on this point was endorsed by a majority of the court in Crown v. Zellerbach (ocean dumping).)
                            Proponent of classical federalism
                            Searched for principles and rules that could confine jurisdiction, much more protective of provincial rights
                            Both Beetz and Laskin acknowledge that juges have a considerable amount of discretion in interpreting the distribution of powers in the
                             constitution
                            Generally, Québecois would prefer the emergency doctrine to NCD because it leads only to a temporary suspension of provincial power
                             rather than NCD’s permanent federal overiding of provincial powers.
Ratio
Comments          This case is perhaps best remembered for its discussion of the admissibility of extrinsic evidence (e.g. evidence about the price and wage controls
                  and their effects, resource allocation in the light of discrimination) in constitutional cases. This was related to the question of judicial notice: what
                  societal facts can a judge take for granted (without them having to be proven – e.g. proving that women have babies, or that we have four seasons,
                  etc... “common knowledge” – this “judicial notice” is critical in many S.1 Charter cases – what they do and do not need evidence for)?
                  This is used as a precedent for using all other types of sources in making decisions (extrinsic evidence).
                  It is also important to note that there is not time limit to POGG (inflation was not an emergency right away and just because it doesn’t legislate
                  ‘everything’ it can still be called an emergency.

                  There were numerous interveners in this case: the attorneys-general of Canada and all the provinces, the Canadian Labour Congress (outraged by
                  this legislation – included a study by an economics professor in an appendix to their factum – its use was accepted by the court) etc. The courtroom
                  looked more like a legislative committee structure.
                  It seems ironic here that the trade unions were trying to limit federal powers: compare this to the 1930s when social democrats wanted more
                  federal power.

                  Wouldn’t this have been a lose-lose situation for the trade unions? If they had won the case, the provinces could have enacted their own
                  legislation.
                  -This is used as a precedent for using all other types of sources in making decisions (extrinsic evidence).
                  -There is not time limit to POGG (inflation was not an emergency right away).
                  -Rational basis.
                  -Just because it doesn’t legislate ‘everything’ it can still be called an emergency.

                  This case raises the question: to what extent are judges bound by past decisions?
                  Note: Laskin CJC is fairly deferential to the legislative branch in this decision – they could be wrong about whether or not an emergency in fact
                  exists – the test is whether or not they have a rational basis for invoking this prong of this power

                  It is bizarre that the courts are called on to judge economic issues – what expertise do they have? They shouldn’t second-guess the wisdom of the
                  economic and social policy of the legislators – stick to the legal analysis?

Sheppard’s Criteria to determine whether it is a matter of national concern as:
     1. NEWNESS: The national concern doctrine applies to both new matters, and matters that did exist at the time of confederation but have since become
           matters of national concern. Monahan’s analysis: federal authority is more likely to be sustained in relation to novel matters where the provinces have
           not hitherto attempted to assert a regulatory presence.


                                                                                   39
                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 40

      2.    DISTINCTIVENESS: To qualify as a matter of national concern, a matter must have a singleness, distinctiveness and indivisibility that clearly distinguishes it
            from matters of provincial concern. Monahan’s analysis: federal legislation must be aimed at a matter that has defined boundaries, so that recognizing
            the matter as being subject to POGG will not unduly interfere with or negate existing provincial regulatory powers.
      3.    PROVINCIAL INABILITY TEST: The purpose of this test is to determine whether a matter has attained the degree of singleness, indivisibility, and
            distinctness that distinguishes it from matters of provincial concern. It is relevant to consider what would be the effect on extra-provincial interests of a
            failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter. Monahan’s analysis: the provincial inability test is
            merely an indicia of national concern, as opposed to a necessary element.

Katherine Swinton: Laskin and Beetz (CBp.276-281)
Laskin’s Centralist Vision
    Laskin believed in a strong central government. He was influenced by F.R. Scott and other 1930s critics.
    Laskin used a functional approach: this would consider the ability of governments to meet existing needs and allocate powers accordingly.
    He called for flexibility in interpreting the constitution.
          Laskin thought that the “aspects” doctrine should deal with the object or purpose of legislation rather than the subject matter.
          He thought the “necessarily incidental” doctrine was unnecessary given the “aspects” doctrine.
Beetz’s Classical Federalism
    Beetz was concerned with safeguarding provincial rights (especially with Quebec in mind)
    He sought to limit judicial discretion; he valued stare decisis and the immutability of the BNA Act.
    He used a “conceptual” approach, with a clear separation between law and politics; he felt the functional approach was too political.
    A conceptual approach preserves exclusive areas of jurisdiction for each level of government.

    The “emergency” branch of POGG:
         There is a broad consensus that the federal government has the power to deal with emergencies.
         The subsequent Emergencies Act (1988) seems to reflect Beetz J.’s dissent in the Anti-Inflation Reference. Although the Act does not restrict the federal
          government’s power to deal with emergencies, its terms can only be invoked if the government declares an emergency.
         Provincial incapacity test part of assessment if use of “emergency” prong of the POGG power is appropriate. Also involves national security, sovereignty,
          etc. This is invoked only temporarily.

    The “national concern” branch of POGG is alive and well.
         First brought up in Local Prohibition cases
         It originated in the Canada Temperance Federation case (1946).
         Beetz J’s remarks in the Anti-Inflation Reference (see above) seemed to define a limited scope for such a doctrine
                E.g. “Aeronautics”; “Nuclear power”; inflation, wage and price controls are too broad to be placed under exclusive federal jurisdiction

R. v. Crown Zellerbach Canada Ltd., [1988] 1 SCR 401. (CBp.303)
Jurisdiction      British Columbia
Facts             The federal Ocean Dumping Control Act prohibited dumping at sea without a permit. Crown Zellerbach was prosecuted for dumping wood waste
                  just off the shore of Vancouver Island, within provincial territorial waters. It was not clear that the wood waste would harm marine life or impede
                  navigation.
Issues            Could the federal government regulate pollution in provincial waters that had no demonstrable effect outside the provincial waters?
Holding           Trial – No; Appeal – No; SCC – Yes.
Ratio             The majority found that the pith and substance of the legislation was to control marine pollution, and it upheld the federal control of marine
                  pollution on the basis of the national concerns branch of POGG. Le Dain J. expanded on Beetz J.’s remarks in the Anti-Inflation Reference to
                  summarize the national concern doctrine in four points:
                         1. It is separate from the emergency power.
                         2. It applies to new matters and to old ones that have grown to national dimensions.
                         3. For a matter to qualify it must have “a singleness, distinctness and indivisibility that clearly distinguishes it from matters of provincial
                              concern.”
                                          How is this to be determined? “You can’t find a huge amorphous area to be under exclusive federal jurisdiction” (Sheppard) –
                                           because this is a residual clause, it must be directed at finite problems
                                          Recent example: New Reproductive Technologies
                                          The reasoning on this point was convoluted – the majority held that because the boundaries of waters are difficult to
                                           delineate, it is “indivisible”. The dissent held that for exactly the same reason, they are not “indivisible” because the line
                                           cannot be clearly drawn where pollution does not bleed over – the category is too amorphous.
                         4. It is relevant to consider what would happen to other provinces if one province failed to deal with the matter. (It’s not clear whether
                              this is an element of its own, or a corollary of #3.)
                                          Where a subject matter cannot be effectively dealt with on a provincial level, or where it is essential that everyone
                                           legislates... Slippery slope? How is this to be defined? Lack of political will? Lack of competence?
                  Dissenting, La Forest J. found that control of marine pollution failed to meet the indivisibility test (criterion #3). Key disagreement over the form of
                  the legislation – La Forest disagrees with having to get a permit if the matter being dumped is innocuous. To grant federal government sole control
                  over environmental issues would be to undermine provincial jurisdiction, thus undermining federalism.
Comments          Prof. Sheppard was not convinced that the case at hand satisfied Le Dain’s four-part test either.

    Brun and Tremblay (p.315) critique this judgment and basically show how all of Le Dain’s criteria are vague and fluid. They accuse the Supreme Court of
     politically favouring the federal government.
    May suggest a relaxation of the criteria imposed on federal jurisdiction with respect to fulfilling international treaty obligations in Labour Conventions.



                                                                                   40
                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 41

Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 SCR 3. (CBp.318)
Jurisdiction     Alberta
Facts            Federal legislation required that all federal departments and agencies with power to allow or disallow a particular project must screen proposals
                 and submit environmentally contentious proposals to a review panel. The Alberta government proposed to construct a damn on the Oldman River,
                 and approval was granted by the federal minister of transport, however a review was not conducted. The society thus brought an action to quash
                 the minister of transport’s approval and to compel the minister to submit the proposed damn to environmental review.
                 Alberta appeals the court of appeal’s decision in favour of the society, arguing that the federal legislation attempts to regulate environmental
                 effects of matters largely within the control of the province, which therefore cannot be of federal concern.
Issues           Does the federal government have the power to force provincial projects to submit to environmental review before proceeding?
Holding          No. Appeal dismissed.
Reasoning        Writing for the majority, Laforest J. echoed his (minority) views in Crown Zellerbach, to the effect that environmental regulation was too diffuse
                 and not distinctive enough to meet Beetz J.’s requirements for the national concern branch in the Anti-Inflation Reference. Environmental control
                 does not have the requisite distinctiveness to satisfy test for use of national concern branch set out by Beetz in Anti Inflation Act. The environment
                 is too amorpheous a matter to be aligned with the national concern branch.…same conclusion as he reached in Zellerbach.
                 *Sheppard doesn’t think this makes sense because you can never really have something that is completely distinct and indivisible. Ontario Hydro is
                 an example of where the matter was divisible yet all aspects were deemed within federal power. Federal power to regulate all aspects of nuclear
                 power (at issue was fed power to regulate labour issues in nuclear power plant) was confirmed, despite the fact that this power is divisible into
                 multiple component parts).]
                 Therefore, regulation of the environment is not exclusively federal; either level of government may legislate with respect to the environment – one
                 with regard to federal aspects, the other with regard to provincial aspects. The damning of the Oldman River has sufficient impact on federal
                 concerns that federal participation is justified.
Ratio            Power to regulate over the environment can be either federal or provincial: Parliament may legislate with regard to federal aspects, the
                 provinces with regard to provincial aspects.
                 The Constitution should be so interpreted as to afford both levels of government ample means to protect the environment while maintaining the
                 general structure of the Constitution.
Comments                    All that matters for us is what LaForest says about national concern branch
                            Rule is inconsistent with the national concern prong of POGG

    In the Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 SCR 327 case, the majority found that labour relations at a nuclear power plant fell under
     national concern.
          It was not a clear-cut case: the three Ontario justices dissented on the basis that labour relations were not part of the “single matter” of nuclear energy.
27/11/02
    It is therefore clear that Le Dain J.’s criteria for the national concerns branch are problematic: nuclear energy, aeronautics, the national capital: none of them
     are indivisible.
    Prof. Sheppard is however sympathetic to the “provincial inability” criterion.
    The national concern branch has been limited in scope.
    Monahan talks about “interprovincial concern”: How different is this from “national concern”?
           There is no indivisibility requirement; it doesn’t have to be exclusive.
           Could this be a new doctrine emerging to take the place of “national concern”?

Criminal Law
    s.91(27) assigns criminal law to the federal government:
          except the constitution of courts
          but including criminal procedure
    s.92(14) assigns provinces the administration of justice in the province,
          including provincial courts “of civil and criminal jurisdiction”
          and including civil procedure
    According to s.92(15), provincial laws can be enforced by fines, penalties and imprisonment.
          To enforce any valid provincial laws, whether or not criminal in nature
    Federal criminal law is enforced by provincial police forces and judges.
    Prisons for sentences for two years or more are under federal jurisdiction according to s.91(28).
          Establishment, maintenance, and management of penitentiaries
    S. 92(6) for lesser crimes, lesser punishments (provincial prisons)

What does Criminal Law mean for Constitutional Purposes?
   Test articulated in Margarine Reference

Federal Powers over Criminal Law (CB pp. 389-415)
2 main issues to be addressed
     1) Scope of the federal power (very broad, potentially limitless)
     2) Extent to which the existence of this federal power has constrained provincial attempts to control local conditions of public order and morality

Provinces:
          Don’t have jurisdiction over criminal law
                o    Look at Morgentaler case on pith & substance, where province tried to criminalize abortion
          Can deal with matters related to criminal law, but must focus on the civil aspects (Protecting the victim, whereas criminal law punishes the perpetrator)

                                                                                  41
                                                                                              Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 42

                 o    Ex. Child abuse: Criminal law punishes offenders with jail terms, whereas provincial legislation provides support for abused children

Constitution Act 1867 (relevant sections)
FEDERAL POWERS
          S.91(27): Assigns criminal law to the Federal government
                o     “Criminal law is a federal matter, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters.”
          S.91(28): Federal penitentiaries

PROVINCIAL POWERS
        S.92(6): Public & reformatory prisons (lesser crimes, lesser punishment  2 years less a day)
        S. 92(14): Assigns provinces with the administration of justice in the province
               o     Including: provincial courts “of civil and criminal jurisdiction” + civil procedure
        S. 92(15): “The imposition of punishment by fine, penalty or imprisonment for enforcing any law of the province made in relation to any matter coming
         within any of the classes of subjects enumerated in this section”
               o     I.e. Provinces can impose punishment for non-compliance with provincial laws, but not criminal law  lots of potential confusion

What does criminal law mean for constitutional purposes?
        Unlike ‘national concern’ doctrine, which operates by assigning full power to regulate an area to Parliament, criminal law power ≠ preclude provinces
         from exercising their regulatory powers
        Traditionally, criminal law had to address ‘evil’ matters: murder, incest, assault (Privy Council)
               o     Later, simply looked at prohibition & penalty
        Rand J. brought the traditional and later approaches together by emphasizing need for a criminal purpose
     His decision is the starting point for the framework of the federal criminal law power

Rand J.:
“As prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed.”
(p.390)
“...need to identify the evil or injurious effect at which a penal prohibition was directed...” (p.393)

    In Proprietary Articles (see p.Error! Bookmark not defined.Error! Bookmark not defined.), the JCPC had defined criminal law by the existence of a prohibition
     with a penalty attached. It had refused to look at the content, purpose or function of the criminal law.

Margarine Reference, [1949] SCR 1. (CBp.390)
Facts          The federal government referred section 5(a) of the Dairy Industry Act, which banned the manufacture, sale, or possession of margarine, to the
               Supreme Court.
Issues         Was this provision criminal law?
Holding        No.
Ratio          Rand J. found that, while the impugned provision met the test of being a prohibition with a penalty attached, its “purpose” was economic, i.e., to
               protect the dairy industry.
               Purpose of regulation (not exhaustively: public peace, order, security, health, or morality)
                    Intersection here with “pith and substance”
               Form of regulation (prohibition and penalty)
                    The mere existence of “prohibition and penalty” does not necessarily mean that it is criminal law
Comments       Federal government could instead have tried to regulate under s. 91(2) – Trade and commerce – but it didn’t. Rand J’s criteria for a criminal
               purpose here were extremely broad and amorphous.

RJR MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199. (CBp.392)
Jurisdiction   Quebec
Facts          The federal Tobacco Products Control Act prohibited the advertising of tobacco products and specified penalties for violating this ban. RJR
               MacDonald challenged this, saying that it was in pith and substance property and civil rights, and that it violated freedom of expression under the
               Charter.
Issues         Could the ban be upheld as criminal law?
Holding        Yes, but it was struck down on Charter grounds, for violating freedom of expression.
Ratio          Following Rand J.’s judgement in the Margarine Reference, La Forest J. (for the majority) found that the ban was criminal law, especially as it was
               directed against the public health hazard of smoking. It did not matter that the law was more regulatory than prohibitory.
                     Smoking is dangerous  detrimental health effects  advertising induces young people to tobacco consumption and is therefore fair game
                      for criminal law power
               The dissent (Major J.) argued that the regulatory nature of the law meant it couldn’t be criminal law: it just banned tobacco advertising without
               addressing smoking itself. The fact that imported magazines were exempted from the ban also seemed to indicate that this was not really criminal
               law. “Since Parliament has chosen not to criminalize tobacco use, it is difficult to understand how tobacco advertising can somehow take on the
               character of criminal activity.” (p. 399)
                     Using criminal law to target advertising is going way too far
Comments       While La Forest J. was one of the greatest opponents of an expansive “national concern” branch of POGG, he has promoted an expansive federal
               criminal law power.
                     La Forest’s judgment is affected by idea that smoking itself is dangerous, concern for public health – “put bluntly, tobacco kills”  “evil”
                      aspect & concern for public health justifies criminal law
                     Living tree approach is adopted
                     Law is upheld through broad interpretation of criminal law power
                                                                                    42
                                                                                           Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 43

                      “The presence of regulatory features in a federal law… may make the law incapable of being upheld as an exercise of the criminal power.
                       However, in cases where a clear criminal purpose has been found, courts have allowed some deviation from the strict form of prohibition
                       and penalty.” (p. 400)
                  Health has both federal and provincial aspects – neither power can claim exclusive jurisdiction.
                  Underlying question/concern: what effects does criminalizing something have? It is stigmatized... perhaps regulation is better, although using the
                  criminal law power is constitutionally convenient.
                  Health is an important domain where criminal law regulates, “circumscribed only by the requirements that the legislation must contain a
                  prohibition accompanied by a penal sanction and must be directed at a legitimate public health evil.” (p. 394)

R. v. Hydro-Québec, [1997] 3 SCR 213. (CBp.400)
Jurisdiction    Quebec
Facts           The Canadian Environmental Protection Act allowed the federal government to regulate the use of toxic substances. The law was evidently drafted
                to be justified under the national concern branch of POGG. Hydro-Québec was found to have violated a federal government order regulating PCB
                emissions. (The order was made by Lucien Bouchard’s environment department!)
Issues          Could the federal government use the criminal law power to justify environmental regulation?
Holding         Yes. (5-4)
Ratio           La Forest J., writing for a narrow 5-4 majority, added environmental protection to Rand J.’s list of public purposes.
                     Used criminal law power to justify federal law initiative – broad reading of purpose, lenient with regards to form requirement
                The prohibition on “toxic substances” was restrictive enough/sufficiently discrete to be enforced by a penal (criminal) sanction  not an invasion
                of provincial regulatory power.
                This is an even more expansive reading of the criminal law power. The protection of a clean environment may be added to the valid “purposes” for
                criminal legislation.

                 DISSENT
                 The dissent argued that the law was regulatory rather than prohibitory, especially as it did not define the general terms of offences but rather
                 enabled bureaucrats to make specific orders about what would be an offence. La Forest J.’s judgement did not really address this issue.
Comments         This decision was extremely controversial, drawing criticism from some such as David Beatty, who argued that it was an absurd abuse of the
                 criminal law power, since it eliminated the requirement of a prohibition and a penalty. Beatty felt it should have been upheld under the national
                 concern branch of POGG. On the other hand, Jean Leclair applauded the decision, saying that it upheld Canadian values and was constructive of
                 Canadian identity.
                      Composition of the Supreme Court has changed – with such a narrow decision, this trend (expansive reading of criminal law power) may be
                       pulled back
                      Why criminal law rather than the national concern prong of the POGG power?  It is a constitutionally defined area of jurisdiction – doesn’t
                       require the creation of a new category. Provinces thus have overlapping jurisdiction from a regulatory standpoint – allows room for provinces
                       to deal with issues concurrently.6
                      Potential downside: trying to fit things into the criminal law power that do not really fit (putting together a puzzle with a sledgehammer)
                      Can the “clean environment” purpose now be expanded to “protection of biodiversity”? Does this trench on the provincial jurisdiction over
                       natural resources? What arguments for (Sarah) or against (Rob)? THESE ARE NOT EXCLUSIVE TO THE FEDERAL GOVERNMENT if they are
                       under the criminal law power!
                 Fundamental values – “human life” added to the valid criminal law purposes?
Even more potentially expansive than MacDonald. In both the MacDonald and the Hydro Quebec cases, there was a challenge to the traditional criminal law form.

Why not justify it under national dimensions branch instead of criminal?
         Justification under Criminal power leaves the provinces with a whole sphere of regulatory powers that a ‘national concern’ branch would limit since it gives
          exclusive federal jurisdiction

What does this case teach us about the interpretation of purpose & form?
        Purpose: Purposes listed in Margarine Reference are not exhaustive – living tree approach. La Forest says protection of clean environment is a public
         purpose to support criminal prohibition. Purpose of criminal law is to protect Canada’s fundamental values, such as protection of the environment, and
         criminal law must be able to keep pace with emerging values.
        Form (prohibition + penalties): For the dissent, this was a regulatory decision (rather than prohibitive)

Reference re Firearms Act, [2000] 1 SCR 783. (CBp.413)
Jurisdiction     Alberta
Facts            The federal Firearms Act, enacted in 1995, required licensing and regulation for all guns and made it a criminal offence not to comply. The Alberta
                 government challenged the Act on the basis that it was regulatory, not prohibitory: it made a reference to the Alberta Court of Appeal, which
                 upheld the Act. The Alberta government appealed to the Supreme Court. While there was no problem with regard to the purpose of the legislation,
                 the form was a bit more complicated.
Issues           Could the Firearms Act be upheld as criminal law?
Holding          Yes.
Ratio            The SCC focused on the prohibitory aspects of the legislation. A certain amount of administrative discretion was allowed, but offences (possessing
                 a firearm without a proper licence and registration) were clearly defined by the Act. Therefore the Act contained a prohibition and a penalty, for a
                 criminal purpose. The complex, regulatory nature of the Act did not preclude it from being considered criminal law. The Act ≠ hinder ability of
                 provinces to regulate the property & civil rights aspects of guns. The court explicitly responded to the dissent’s concerns in the Hydro-Québec case.
                 The court found that the civil consequences of the Firearms Act were necessarily incidental.
Comments         Although the court upheld the legislation, its approach to the criminal law power was more moderate here than in the Hydro-Québec case. La
                 Forest J. had retired by this point.
                 This could have been addressed through the ancillary doctrine also – it is necessarily incidental to the firearms regulation jurisdiction?

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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 44


What do these MODERN CASES teach us about the purpose & form requirements?
   It seems, after all this, that the fundamental principles of the federal criminal law power haven’t changed:
          1. The law must have a criminal law purpose (broadly defined to include health, security, etc.)
          2. It must take the form of a prohibition and a penalty.
   Why was La Forest J. so open to an expansive interpretation of the criminal law power, when he was opposed to expanding the national concern branch of
    POGG?
         It may be that, as an enumerated power, the criminal law is perceived to have limits.
         Shared jurisdiction with provincial powers (creating a new area of jurisdiction would necessarily limit ability of provinces to deal with issues)

Provincial Powers to Regulate Morality and Public Order (CB pp. 415-426)
In theory, federal govt has full power to define crimes. In practice, it is more confusing.
       Provinces have significant scope of regulation. They can regulate, but cannot create crimes.
           Ex. Morgentaler, where Nova Scotia tried to replicate criminal code provisions against abortion
           Provinces have jurisdiction over Property & Civil Rights in the province (Ex. CCQ)
                 o     Civil rights: civil law which governs relations between people and with regards to property. This can almost be considered a ‘provincial residual
                       power’ (except for criminal) limited by what is enumerated in federal powers.

Recall Bruce Ryder’s criticism of classical “watertight compartments” vs. newer “overlap” approach...

Various mechanisms exist for giving recognition to local interests in criminal law matters:
Enforcement
          Much of the Federal Criminal Code is provincially enforced  creates a degree of responsiveness to local conditions and thus informs decisions
Opt-Out
          Provinces can sometimes legislate on matters where Federal acts clearly state “except as provided in any provincial Act or Law”
Judicial Recognition of Provincial Jurisdiction
          S. 92(15) allows provinces to enact penal sanctions, but the power is understood as an ‘ancillary’ one, authorizing the use of penal sanctions to enforce
           provincial regulatory schemes that are validly anchored elsewhere in the s. 92 list of provincial powers.

    The provinces have numerous powers related to criminal law:
     o     s.92(6) “public and reformatory prisons”
     o     s.92(13) “property and civil rights”
     o     s.92(14) “the administration of justice in the province”
     o     s.92(15) “the imposition of punishment” (However, this is ancillary to other heads of power.)
     o     s.92(16) “matters of a merely local or private nature”
    Provinces don’t have power over criminal law per se. But they have been allowed a certain amount of power to legislate with regard to morality and public
     order.
     o     This can be confusing in practice – determining jurisdiction can be difficult – the line is not clear
     o     Note that the casebook has a federal bias – no “Property and Civil Rights” chapter, vs. POGG and other federal powers
                 What is “Property and Civil Rights” with respect to Constitutional law?
                       Lines up a lot with Quebec private law: Civil Law that regulates relationships between private individuals, and between people and their
                        property
                       This is different from the “human/civil rights” movements, although these are part of “Property and Civil Rights”
                              Can be compared to POGG as a residual power; however, POGG has been interpreted fairly restrictively, whereas “Property and Civil
                               Rights” is given a broader interpretation, as it was at Confederation
    Laskin, J.: courts like law and order, and may wish to uphold regulation that is overlapping in order to ensure law and order

Re Nova Scotia Board of Censors v. McNeil, [1978] 2 SCR 662. (CBp.416)
Jurisdiction    Nova Scotia
Facts           Nova Scotia legislation created a board of censors, with the power to ban films. If any cinema showed the banned film, it could be fined or lose its
                licence. McNeil, a private citizen, sued to overturn the banning of Last Tango in Paris.
Issues          Did the Nova Scotia government have the power to ban films on the basis of morality?
Holding         Yes. (5-4 split)
Ratio           Ritchie J, writing for the majority, emphasized that the Board of Censors was regulating the film business, therefore “property and civil rights.” He
                also said that in “a country as vast and diverse as Canada,” laws dealing with morality had to be “of a local and private nature.” – s. 92(13+16)
                argument
                Pith & substance analysis  Primary focus of legislation is regulating film industry in the province.
                Form analysis  Primary focus of legislation is censorship – regulatory. Its form is not to punish crime; there is no penalty for an audience that
                goes to see this sort of film, but rather just a penalty for breaking the regulation.
                The intention of the act is simply not criminal punishment  the act is preventative rather than penal
                Furthermore, morality is not the exclusive domain of the criminal law. “Morality” has a double aspect.

                  DISSENT
                  Laskin CJC was strongly opposed, and saw the legislation as an intrusion into criminal law. This is colourable legislation, which, despite its form
                  (censorship board), is in pith and substance criminal law. It poses penalties. Sheppard finds this harder to follow.
                             Provinces may have legislative authority over issues where moral considerations are involved, but these issues must be anchored in the
                              provincial catalogue of powers and must, moreover, not conflict with valid federal legislation.
Comments          This case is also referred to in the law of standing: whether McNeil, as a private citizen and consumer, was entitled to sue. Pre-Charter: this would

                                                                                  44
                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 45

                  be a freedom of speech/freedom of expression claim now.
                  It’s not clear whether this law could have been held to be criminal law, since it involves a complex regulatory scheme (and not a prohibition with a
                  penalty).
                  Note that Laskin, although generally in favour of a broad scope of power for the federal parliament, was also a civil libertarian in terms of human
                  rights and civil liberties, and his position here is consistent with that.

    A series of provincial laws relating to morality were upheld: generous use of double aspect doctrine
     o     the Rio Hotel case (New Brunswick, 1987, concerning nude performances in bars)
                Dickson suggests there is no direct conflict with criminal law, the provincial legislation related to licensing and was therefore valid. Distinguished
                 from Westendorp, where there was colourability
                Liquor control – upheld because they saw that the legislation was directed more toward marketing of alcohol rather than criminalizing nude
                 performance
                Overt acknowledgement of overlap – Criminal Code provisions regarding nudity – but no direct conflict, and no penal sanctions in this legislation, so
                 it was intra vires. No colourability going on here. Provincial jurisdiction under 92(13) and 92(16).
     o     the Ontario Adult Entertainment case (1997)

Westendorp v. The Queen, [1983] 1 SCR 43. (CBp.421)
Jurisdiction    Alberta
Facts           Westendorp was charged under a Calgary by-law which dealt with street safety. The by-law had a specific provision which stated that no person
                shall be on the street for the purpose of prostitution, with penalties involving both fines and imprisonment.
Issues          Did a ban on being in the street for the purpose of prostitution invade the federal criminal law field?
Holding         Yes.
Ratio           The SCC unanimously found that the by-law dealt with criminal law, since it only regulated being on the street for prostitution, not the mere fact of
                being on the street. (The Alberta Court of Appeal had upheld the legislation, because it only dealt with prostitution on the street (purportedly as a
                public nuisance), not the mere fact of prostitution.)
                Divergent moral standards should be governed locally rather than federally.
                           Reasoning similar to Morgentaler – colourability
                           Fed. ≠ criminalise prostitution, but criminalises sollicitation
                Note that provincial trenching on the criminal law power might deprive people accused of violations of federally protected rights. This was the
                grounds for striking down this legislation.

    Squeegee Kids – “Safe Streets Act”
     o    Can the court take judicial notice of safety issues without empirical evidence?  is it self-evident that having people at intersections, interfering with
          stopped cars, are dangerous (e.g. cars needing to manoeuvre around them, etc)
    Such provincial laws are only likely to be problematic if they come into direct contact with federal law.
    Most cases revolve around municipal by-laws.

APPLICATIONS:
    New Reproductive Technology – surrogacy – do we want to criminalize this?
    Drug-addicted pregnant women – will criminalizing this prevent them from seeking treatment because they are afraid of prosecution?
    Hate speech – Charter cases – is it a good idea to criminalize speech, or should other regulatory models be used to deal with these problems? Suits in tort rather
     than in criminal law? “Préjudice réparable”?

Visions and Values in Adjudicating Federalism Disputes (CB pp. 198-204)

R. Simeon, “Criteria for Choice in Federal Systems”
3 perspectives for assessing federalism
      1) Community: What implications do different forms of federalism have for different images of the ideal or preferred community with which people identify
         and to which they feel loyalty?
                 o     Linguistic dualism and regional diversity have made this perspective the overwhelming focus of both practitioners and students of Canadian
                       Federalism
      1) Functional Effectiveness: Does federalism enhance or frustrate the capacity of government institutions to generate effective policy and respond to citizen
         needs?
      2) Democratic Theory: Does federalism promote democracy? Do different conceptions of democracy generate different images of the good federal system?

Community
Federalism is assessed largely in terms of its ability to defend and maintain a balance between regional and national political communities
     -    Domain of sociologists
     -    In Canada: controversy about whether communities are to be defined largely in political terms, or in terms of the relationship of linguistic and ethnic
          communities
     -    Conflict between 3 drives: country-building, province-building and two-nation of Québec nation-building
               The tension threatens federalism itself
     -    For some purposes the relevant community will be defined broadly, for others narrowly
     -    Communities need not be territorial or geographic  ex. religious groups

Functional Perspective
     -     Domain of economists and public administrators


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                                                                                               Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009    p. 46

     -     Powers are allocated, at least in principle, not according to what communities need to express and protect themselves, but rather according to a division
           of labour criterion: which level can most efficiently and effectively carry out any given responsibility of contemporary government?
     -     3 functionalist arguments:
               1) Some argue that the system is ineffective because it is too decentralized  ex. common market eroded by variety of provincial actions)
               2) Others argue is it too centralized  How can a remote central government account for interests of all sectors and regions?
               3) High costs of sharing and overlapping responsibilities among governments
     -     One of the most important lessons of the functional perspective is that not all interests are defined in territorial terms  Ex. interests of workers v
           owners, producers v consumers, etc. and this reality may be neglected in a political regime predicated on the centrality of territory or region

Democratic Perspective
1st approach:
Primarily concerned with protecting citizens from governments: stresses preservation of liberty and of minority rights against oppression by the majority
      -    Federalism supposed to ensure that diverse jurisdictions will offer different packages of services
      -    Problems with this approach: excessive faith in the capacity of institutions to prevent tyranny

2nd approach:
Stresses the advantages of smaller units in terms of governmental responsiveness and citizen participation
      -    Likely more homogeneous, so a clear majority interest is more likely to emerge
      -    Greater political weight of individual citizens
      -    Greater sensitivity of political leaders

Problems with this approach
     -    For the above advantages to be true, units must be much smaller than current provinces
     -    Smaller units generally have less resources to achieve goals

Thus, ‘democratic’ views of federalism support both a high degree of decentralization and of overlapping between governments. But, also produce important
critiques of federalism:
      -     Limits citizen participation: confusion about who is responsible for what?
                  o     Mixed responsibilities reduces accountability
                  o     Dominance of executives strengthens role of bureaucrats against politicians, cabinets against legislatures...
      -     Frustrates majority rule almost by definition, but then again, which majority should prevail?
                  o     Provincial majorities? Class majorities?
                  o     Lack of provincial resources and jurisdiction make it hard for provinces to achieve their own goals (this one of the PQ’s main arguments...)
                  o     Central Canada outweighs the West + East


“Indeed the “democratic” version... is the idea that political boundaries should be aligned with the distribution of preferences, so that each region is as homogenous as
possible: each unit could then enact its preferences without either imposing them on others or being vetoed by others. This is a fundamental justification of
federalism. It is, however, hard to make operational...” p.204


Economic Regulation
    Economic regulation is a prevalent area of constitutional litigation
    Area of shared jurisdiction (both s. 91 and 92) – geographical confines of provinces play a role in determining appropriate legislative jurisdiction
    East-West economic integration has been a huge part of Canadian nation-building: the idea of an “economic union.”
    The federal government has numerous economic powers, especially “the regulation of trade and commerce.”
    The provinces have numerous economic powers, especially “property and civil rights.”
    s.121 (CA1867) requires free interprovincial trade: there can be no tarriff barriers.
     o    Some have proposed a more sweeping entrenchment of interprovincial free trade: see CBp.383.
     o     This is also related to the question of mobility rights, which are enshrined in s.6 of the Charter.

    What do we mean by economic regulation?
     o    production
     o    trade
     o    finance
     o    banking
     o    labour
     o    taxation
     o    subsidies/spending
     o    consumer protection
     o    etc…
    Economic integration:
     o    negative: removing trade barriers
     o    positive: imposing national laws and standards




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                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 47

Provincial Powers Over Economic Regulation

General Principles (CBpp. 330-334)
Section explores provincial regulatory powers: extent to which provinces may impose barriers between provinces in ways that impair functioning of Cdn economic
union

Cases involving marketing of agricultural products: courts juggle with scope of provincial power under s.92 (13) – property and civil rights. Courts concerned with
preservation of Cdn economic union and elimination of unacceptable barriers

Economics is a broad issue. Comes up all over CA1867 and especially in ss. 91 and 92.
We are most interested in s. 92(13) and s. 91(2)

[Note on s. 92(13) provincial power over property and civil rights allows for regulation of trade and commerce as long as it is w/in the province and the P&S is about
regulating matters w/in the province.
    The pith and substance approach has been used to prevent provinces from using these powers to indirectly regulate interprovincial or international trade and
     commerce.

Carnation v. Qc Agricultural Board
    Marketing Board allows producers to get together through a kind of collective bargaining to determine prices.
    Carnation complained because a lot of the milk it purchased was destined for export and the fixed prices had an impact on their inter-provincial trade.
    P&S analysis: Despite overlap, court decides aim is the regulation of fair prices for producers in Qc rather than regulation of export prices
    Decision is a judgment call: Recognize there will be incidental effects but concerned about potential regulatory gap if struck down

Carnation Co. Ltd. v. Quebec Agricultural Marketing Board [1968] SCR 238. (CBp.330)
Jurisdiction     Quebec
Facts            Quebec Agricultural Marketing Act empowered Quebec Agricultural Marketing Board to act as collective bargaining agent for the Quebec dairy
                 industry. Carnation operated an evaporated milk factory in Sherbrooke. It bought its raw milk from Quebec dairy farmers, but shipped most of the
                 evaporated milk to other provinces. A price dispute arose between Carnation and its suppliers. The Marketing Board was empowered by legislation
                 to arbitrate such a price dispute, which it did. Carnation contested the price settlement on federalism grounds.
Issues           Did the Board’s decision encroach on the federal field of interprovincial trade and commerce (s. 91(2))?
Holding          No.  Marketing Board
Reasoning        Martland J. found that the purpose of the legislation was intraprovincial, and that its effects on interprovincial trade were incidental. In Martland
                 J’s words, “It is not the possibility that these orders might ‘affect’ the appellant’s interprovincial trade which should determine their viability, but,
                 rather, whether they were made ‘in relation to’ the regulation of trade and commerce....” It used the analogy of labour law: it certainly affects the
                 cost of doing business in the province, and it may therefore affect the province’s external trade, but its main goal is internal.
Ratio            Incidental effects outside the province do not necessarily prevent an area of the economy from being subject to provincial control.
Comments              In the absence of federal legislation to regulate the dairy industry, such provincial legislation was necessary.
                      Court assessed the pith and substance of this legislation, and found that it did not regulate anything extra- or inter-provincial.

    In the Manitoba Egg Reference (1971) (CBp.334), the Supreme Court (Martland J.) overturned a Manitoba statute which gave a provinical marketing board
     (elected by Manitoba egg farmers) control over all eggs sold in Manitoba, because the statute did indeed aim to interfere with the free flow of interprovincial
     trade.
     o     This case was therefore the inverse of the Carnation case.
     o     The development of this case was bizarre: Manitoba wanted to overturn Quebec’s protectionist egg laws, so it enacted an identical law and referred it to
           the Manitoba Court of Appeal. When the Court of Appeal found it ultra vires, the Manitoba government “appealed” this decision to the SCC. When the SCC
           upheld the decision, it became binding on Quebec.
     o     Laskin J. and others expressed concern over whether it was appropriate for the SCC to decide such a case. One problem is that there was no factual basis
           for case in Manitoba—the SCC was examining legislation in the abstract.
    The Supreme Court came to the same conclusion in the case of Burns Foods Ltd. v. A.G. Manitoba (1975), which involved the validity of Manitoba’s hog
     marketing scheme. Although the scheme did not attempt to limit the entry of pigs from other provinces, it did say that all pigs slaughtered in the province had
     to be bought from a Hog Producers’ Marketing Board. It was not overtly discriminatory, but it had discriminatory effects.

Natural Resources (CBpp. 343-345)
   Many of the most contentious federal-provincial economic cases have revolved around natural resources.
    o     In the 1970s, these cases followed the same pattern as other cases: the SCC struck down provincial regulations when they were in pith and substance
          trying to regulate interprovincial or international trade.
    o     In the oil cases, oil-producing and oil-consuming provinces were battling over the difference between the world market price of oil and the cost of
          producing oil in Canada. The federal government was caught in the middle, trying to establish a single national price and reduce its commitments to
          subsidies and equalization payments.
               Context of rising energy costs.
   Questions similar to agricultural products cases: limits on provincial economic regulatory powers b/c of impact on inter-provincial trade.
   Cases also involve scope of provincial power to tax under s.92(2) and scope of intergovernmental immunity from taxation under s. 125.
    o     SCC decisions were often unpopular in West – amendment to constitution in 1982 added s. 92A to clarify responsibilities and curb impact of SCC decisions
    o     Decisions led to Western alienation and s.92A
   Simeon reading explains that there was a debate about oil prices and Ottawa decided to keep prices low.




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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 48

R. Simeon and I. Robinson, State, Society and the Development of Canadian Federalism (CBp.343)
         Oil crisis led to internal federal-provincial conflicts.
         Energy divided Canada regionally as did no other issue – intergovernmental conflicts of interest
         Ontario wanted to bring the price of Western oil down. Alberta argued high prices were likely to stay and couldn’t afford to cut prices for short-term
          competitive gains
         Difficult role for federal government: want to keep consumer prices down, but forced to consider equalization systems for disparities in
          international/domestic prices, reducing energy consumption while promoting Canadian industry
         As oil producing provinces made money, they defended their position by arguing that they were subsidizing other regions in the form of regional
          redistribution.

Central Canadian Potash Co. Ltd. v. Govt. of Saskatchewan [1979] 1 SCR 42. (CBp.350)
Jurisdiction      Saskatchewan
Facts             Almost all of Saskatchewan’s potash was sold outside the province, and 64% was sold to the US. Fearing US trade sanctions, Saskatchewan
                  instituted a “prorationing” scheme (fixing minimum price). In setting up the scheme, the Saskatchewan government met with officials from
                  New Mexico; Saskatchewan officials issued “directives” regulating the used of potash exported to Europe, and so on.
Issues            Was the prorationing scheme ultra vires?
Holding           Yes.  Canadian Potash.
Reasoning         Laskin, CJC:
                       Prorationing scheme only significant to the export market - not the jurisdiction of the provincial government. Provincial government
                        contended that natural resources were the exclusive jurisdiction of the provinces, including pricing and quotas.
                       However, if price-fixing is the pith and substance of the provincial legislation, it is beyond the provincial legislative authority. This is not
                        actually a question of conflict between federal and provincial jurisdiction, but rather a limitation on the provincial legislative power.
                       This does not mean giving full power of production of minerals to Parliament – invalid provincial law is not ipso facto a federal law.
Ratio             Form, function, and intended effects of legislation are relevant to deciding whether or not legislative power is appropriate.
Comments          Culliton, JA (lower instance) “The right to control production of potash within the Province and to establish a minimum price at the mine, rests
                  with the Parliament of Canada, for the right to do so must rest somewhere... the Parliament of Canada does not have the power to control the
                  production of potash within the Province, or to set a minimum price at the mine... to hold that the prorationing and price stabilization
                  programmes are ultra vires the Province, is to determine their validity by the ultimate effects of such programmes and not by their true nature
                  and character.” Laskin disagreed.
                       Similarly to the Carnation Milk case, the province was acting in a regulatory gap. What is different in the reasoning in these cases?

Understanding the logic of court reasoning: 3 criteria
    1. Consideration of the form of the legislation (how power is delegated)
    2. Consideration of the function of the legislation
              Potash was functionally about the export market.
    3. Consideration of the effects/purpose of the legislation

     o     In 1982, s.92A was added to CA1867, which gave provinces power over natural resources.
               This section was meant to “reassure” the provinces that the federal government would not use s.92(10) to declare natural resources to be works
                under federal jurisdiction.
                      Also emerged out of concern about production and export of electrical energy. Did not want it to become a federal undertaking b/c of exports
                       or inter-provincial grids
               s.92A(2) gives provinces the power to regulate exports of natural resources, so long as this does not result in prices that discriminate against other
                provinces.
                      This subsection is qualified by s.92A(3), which makes federal paramountcy explicit in this area.
     o     Ontario Hydro v. Ontario (Labour Relations Board) decided that on the issue of jurisdiction of collective bargaining for employees, legislative power rested
           with Parliament, not with the province.

     o     Labour relations with Nuclear Power Plants: National Labour Standards are a federal power. S. 92A restated division of power in modern terms.

NOTE ON OFFSHORE MINERALS
        Offshore mineral jurisdiction are determined by geographical areas of jurisdiction at the time of entry into Confederation; if the territory in question was
         part of the province’s jurisdiction at the time of Confederation, legislative power rests with the province. If it was not part of the province’s jurisdiction,
         legislative power goes to the federal government under POGG.

Federal Powers over Economic Regulation

Two major doctrinal developments after 1960s:
    1. Courts more willing to apply “necessarily incidental” doctrine in relation to trade and commerce (Klassen)
    2. SCC applies general regulation of trade doctrine to uphold federal competition legislation (GM)

S.91(2) has two prongs: Interprovincial/International and General (National Concern). The trade and commerce power contains two branches (from Citizens
Insurance v. Parsons):
           1. Interprovincial/international
                      This can be used with the pith and substance doctrine to incidentally encroach on provincial law.
                      Often used to strike down protectionist economic legislation.
           2. General
                      This is similar to the “national concern” branch of POGG.
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                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 49

                            o     However, there is no “indivisibility” requirement.
                      The “general” trade and commerce power had been dormant for several decades until Laskin CJC suggested such an idea in the Anti-Inflation
                       Reference (argument not made by counsel, so Laskin did not consider it).
                      Depression-era criticisms called for this type of economic regulation.

Regulation of Inter-Provincial and International Trade (pp. 356-361)

Queen v. Klassen
   Klassen did not declare delivery of bushels of wheat. They were used for local business.
   Charged with failure to respect s. 16 of Canada Wheat Board Act (a federal initiative to control the entry of wheat into the trade market).
   Scheme found to be necessary in provinces in order to achieve function controlling inter-provincial and intl markets
   Form is provincial regulation but function is interprovincial/international trade and commerce
   Court articulates Ancillary Doctrine theme: necessarily incidental
   Federal can regulate intra-province directly provided the P&S lies in a federal head of power

The Queen v. Klassen (1960), 20 D.L.R. (2d) 406 (Man.C.A.). (CBp.357)
Jurisdiction    Manitoba Court of Appeal (leave to appeal to the SCC denied)
Facts           Klassen operated a feed mill in Grunthal, Manitoba. He bought 296 bushels of wheat from a nearby farm and converted it into feed, which he sold
                to farmers in the immediate area (not crossing any provincial borders). Klassen failed to record the purchase of the grain in his “delivery permit
                book,” as required by the Canadian Wheat Board Act. (This Act declared that all grain elevators were “works to the general advantage of Canada”
                and it enforced a quota system, assigning grain to elevators.)
Issues          Was the Canadian Wheat Board Act ultra vires in respect of Klassen’s feed mill?
Holding         No.
Reasoning       Adamson CJM:
                           If Klassen can purchase wheat without regard for the Act, then the quota system and orderly marketing of grain is rendered ineffective.
                            Therefore s. 16 of Act which prohibits delivery of grain contrary to Act is necessary and incidental
                Tritschler JA:
                           Have to see if questioned interference is necessarily incidental or ancillary to the effective legislation for the marketing scheme set out
                            in the Act. Decides that it is not an attempt to interfere with provinces, but is rather incidental to the achievement of the purposes of
                            the Act
                           The P&S of Act is the export market of grain which is undoubtedly of national importance

                    How can Klassen’s small storage and intraprovincial transactions clog channels of the marketing system? Look at it from another perspective –
                    Equality of delivering opportunity is a basic feature of the scheme. If this is disturbed, whether or not channels are clogged, injustice may result.
                    Quotas fix amount that can be delivered anywhere, not just for export or inter-provincial markets.
                              Klassen may have sold locally, but has no control on how his products may be used and sold internationally.

                    Although the court conceded that the Act impinged on property and civil rights, they found that this impingement was necessarily incidental,
                    because the legislation as a whole was aimed at interprovincial/international trade. Even though the transactions in question were purely
                    intraprovincial, they could nevertheless “clog the channels of the marketing system” that the Act was meant to regulate.
Ratio               Form and function test applied again – both form and function have to be within the appropriate head of power. In its P&S, Act is not about
                    property and civil rights, but about trade and commerce. It only affects property and civil rights incidentally.
Comments                      This was a revolutionary decision, allowing the trade and commerce power to apply to wholly intraprovincial transactions. Note that the
                               decision rested on the pith and substance of the legislation, and used the necessarily incidental doctrine to uphold the Act.
                              In an article in the Canadian Bar Review, Bora Laskin praised this decision for abandoning a formalist distinction between intraprovincial
                               and interprovincial trade. Laskin was influenced by U.S. legal realism, and he wanted to take a functionalist approach which
                               acknowledged the effects of the wheat on the market.
                              This reasoning was used in USA with regards to Civil Rights Act and interstate commerce (hamburger restaurants x miles from an
                               interstate highway that refuse to serve black customers had their beef allocation reduced...).

Laskin’s “Note on The Queen v. Klassen” (p. 359)
         Piece in praise of decision (obviously because in favour in federal!)
         Old PC decisions made the mistake of refusing to look at issues of trade and commerce as a whole
         On the other end, Klassen uses arguments of functional connections and integration to explain need for a broader conception of federal role
         Following US Supreme Court decisions, Klassen allows federal jurisdiction not only over inter-provincial and international markets, but also intra-province
          markets which affect the former.
               o      Home-grown wheat competes with wheat in commerce
         There cannot be a formula to decide these cases. Must be case by case.

In-class questions on form-based analysis v. functional/effects based analysis

1. How would you regulate child labour under the trade and commerce function?
        Maybe “Cannot engage in inter/intl trade with products produced by children”
        How far does form go if underlying purpose is something different?
        Criminalize!
        Federal labour legislation – but this applies only to federally regulated industries
        Overall federal scheme (like in Klassen) – necessarily incidental effects on provincial industries? “It is forbidden to transport or export goods produced
         using child labour (or abusive employment practices)”
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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 50

                o     Can this be challenged?
                o     Can this work with other areas – e.g. union labour, environmental legislation? More differences of opinion on these questions...

2. Does French Language Law have a case against imported kosher food without French labels? (p. 343)
Form of the law is intra-provincial regulation. Function is to protect French, not regulate imports. Impact on kosher food is incidental (compare with Potash, here the
effects are probably unintended). From a federalism perspective the law is not easily challenged. Effects on a religious minority would be significant though so maybe
if challenged under Charter there would be a case. Under Human Rights, the intent/purpose is not important. The focus is on unintended effects.
     Quebec requirement for all pre-packaged foods to be labelled in both French and English. Kosher-for-Passover foods imported from NY only labelled in
      English/English & Hebrew – expensive to add French labels. Can provincial legislation be challenged on federalism grounds?
     FORM: intra-provincial (regulation of culture)
     FUNCTIONAL analysis of EFFECTS on a religious minority: very minor effects on the French language  not really a threat, chill the fuck out, let the kosher food
      in. This takes the context into account. Balance of rights (minority rights/religious freedom vs. federalism issues).
     From a federalism perspective, this law is very difficult to challenge.
     Although there may not have been any intended discrimination of religious minorities, the effect of discrimination must be taken into account. An exemption
      was provided for kosher-for-Passover foods.
                       The case law on standards, trademarks and labeling is quite checkered.
                             In 1938, the JCPC had upheld the federal Industrial Trademarks Act.
     Both the federal government and the provinces have power over language use.
     Prima facie, it seems to be a matter of property and civil rights (or matters of a merely local or private nature).
      o     However, one could also argue that it interferes with international trade and commerce.
                 In order to succeed, one would have to show that the law’s effects on international trade are more than incidental (or not “necessarily” incidental).
     One must begin by looking at the pith and substance. What is the law’s dominant purpose? What are its effects?
      o     It might have been different had the province been trying to protect its own kosher food industry.
      o     Sometimes the effects can be so drastic as to invalidate legislation with a prima facie valied purpose.
     The law could be challenged more effectively on Charter grounds:
      o     freedom of religion
      o     equality rights

General Regulation of Trade

General power is the federal power to regulate economic matters of national importance. Leads to big questions: What is impact of free trade on provincial ability to
protect of markets? How does economic integration impact provincial sovereignty? Now with recession and in the context of an event of national economic
importance, what is scope of federal power?

[Note: Laskin was prepared to consider this in Anti-Inflation Reference but the argument was not put forward)

GM v. CNL
Context of interference with competition.
    Dickson builds on Laskin’s test for indicators of issues of national economic importance.
    Test helpful, but not binding, preliminary not exhaustive.
           1. Part of regulatory scheme
           2. Under oversight of regulatory agency
           3. Touches economy as a whole
           4. Provincial incapability
           5. Without all provinces, scheme would be jeopardized
    Addition of part 4 and 5 of test ensure that the balance of powers is not upset. Considers both sides. “Provincial inability” leaves room for interpretation and
     potential ambiguity.
    For Dickson, competition can only be regulated at national level (p. 377)

General Motors of Canada Ltd. v. City National Leasing [1989] 1 SCR 641; 58 DLR (4th) 255 (CBp.371)
Jurisdiction       Federal?
Facts              Combines Investigation Act challenged because it created a civil cause of action for anti-trust infractions of the Act. Because it created a civil
                   cause of action, it was challenged as trenching on provincial jurisdiction over property and civil rights (?)
Issues                   1. Is the Act valid under federal trade and commerce power (s. 91(2))?
                         2. Is s. 31.1 integrated with the Act in a way that it is also intra vires s. 91(2)?
Holding                  1. The Act is valid under s. 91(2).
                         2. S. 31.1 is constitutionally valid because it is functionally related to the Act.
Reasoning          Dickson, CJC:
                   Balancing act between trade and commerce power (s. 91(2)) and property and civil rights (s. 92(13)) and matters of a local nature (s. 92(16)).
                   Five Part Test set out (to determine the valid exercise of the federal trade and commerce power): outlined first in MacDonald v. Vapor Canada.
                   Dickson CJC adds parts 4 and 5.
                         1. 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.
                         5. The failure to include one or more provinces or localities in the legislative scheme would jeopardize the successful operation of the
                               scheme in other parts of the country.
                   Analysis of the legislation by this test confirms that the Act is valid, and S. 31.1 is an integral part of the Act.

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                                                                                              Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 51


                      Methodological steps in this case:
                            1. Does impugned provision intrude on provincial powers and if so, to what extent? Yes (limited).
                            2. Is Act (or severable part of it) valid? Dickson test:
                                       o     Part 1: Act as a whole is a complex scheme of economic regulation to discourage forms of commercial behaviour
                                             detrimental to Canada and the economy
                                       o     Part 2: Operates under regulatory agency
                                       o     Part 3, 4, 5: National scope  competition cannot be effectively regulated unless regulated nationally.
                                       o     Act must cover intra-provincial trade if it is to be effective. Does not matter if there are provincial powers to regulate
                                             competition and if legislation exists. Federal has the power to improve economic welfare of nation as a whole.
                            3. If act is valid, is impugned provision sufficiently integrated to be upheld by virtue of relationship? Yes [reasoning omitted.]
Ratio                 Dickson says that these last two criteria ensure that provincial powers are not upset by the liberal application of s. 91(2). He emphasizes that it
                      is not exhaustive, nor that the presence of any of the five parts is necessarily sufficient for establishing the scope of federal power in all cases.
                      Ambiguity here because of unforeseeability.
Comments              p. 377: “Various factors underlie the need for national regulation of competition in the economy.”
                      Why should the federal government get involved if the provinces can handle it through an interlocking interprovincial agreement? How much
                      power do we think that the federal government should have?

Notes (p. 380):
Implications over securities regulation and intl trade obligations
Need a more balanced approach:
          If power over trade and commerce extents to economy in general, then federal govt can regulate industries of a very local nature in the name of the Cdn
           economy.
          Need to leave room for provinces to stipulate conditions for provincial marketplace.
          Economic survival is implicit in the division of powers.
          Compare general trade and commerce power with that of national dimension of POGG.
          Spell out conditions of the power:
                 o     federal regulation must be general in concept
                 o     recognition of a form of provincial paramountcy in case of disruption of provincial economic organization
                 o     provincial paramountcy must be set aside when federal govt has compelling reasons for its power to prevail

Kirkbi AG v. Ritvik Holdings Inc. [2005] 3 S.C.R. 302, 2005 SCC 65 (SuppVol.1p.27)
Jurisdiction      Don’t know
Facts             Kirkbi held the patents for LEGO construction sets. When the patents expired in Canada, Ritvik (now Mega Bloks Inc.), a Canadian toy
                  manufacturer, began manufacturing and selling bricks interchangeable with LEGO. Kirkbi tried to assert a trade-mark in the “LEGO indicia”: the
                  upper surface of the block with eight studs distributed in a regular geometric pattern. When the Registrar of Trade-marks refused registration,
                  Kirkbi claimed the LEGO indicia as an unregistered mark and sought a declaration that it had been infringed by R pursuant to s. 7(b) of the Trade-
                  marks Act, which creates a civil cause of action essentially codifying the common law tort of passing off. The trial judge found that purely functional
                  features, such as the LEGO indicia, could not become the basis of a trade-mark. In the Supreme Court of Canada, Ritvik/Mega Blok submitted that
                  s. 7(b) of the Trade-marks Act was ultra vires the legislative competence of the Parliament of Canada because it was not linked or connected in any
                  way to the trade-mark registration scheme in the Act.
Issues            Is s. 7(b) of the Trade-marks Act ultra vires to the federal legislative competence?
Holding           No  s. 7(b) upheld.
Reasoning         S. 91 of the Constitution Act, 1867 does not specify that trade-marks are a component of federal jurisdiction, but patents and copyrights are
                  explicitly allocated to federal legislative power (s. 91(22) and (23)). Pursuant to s. 91(2), the federal government has
                  (1) the power over international and interprovincial trade and commerce, and
                  (2) the power over general trade and commerce affecting Canada as a whole.
                              This limitation is designed to strike a balance with “property & civil rights in the province”.
                              The “general trade and commerce” category requires an assessment of the relative importance of an activity to the national economy
                               as well as an inquiry into whether an activity should be regulated by Parliament as opposed to the provinces.
                              The mere fact that a provision codifies a civil cause of action does not necessarily make it ultra vires the federal government (as per City
                               National Leasing). At the same time, a particular provision will not be valid merely because the main provisions of an Act are valid. It is
                               necessary to consider both the impugned provision and the Act as a whole when undertaking constitutional analysis. If the legislation is
                               valid and the provision is sufficiently integrated within the scheme, it can be upheld by virtue of that relationship.

                   In the second stage of the analysis, the Court must determine whether the Trade-marks Act is a valid exercise of Parliament’s general trade and
                   commerce power (five point test).
                              The parties do not dispute Parliament’s constitutional power to regulate registered trade-marks. Rather, it is Parliament’s right to
                               create a civil remedy in relation to an unregistered trade-mark that is in issue.
                   APPLICATION OF FIVE-POINT TEST (GM):
                   The protection of un-registered trade-marks is integral to the legitimacy, legal standards and efficacy of registered trade-marks. The Trade-marks
                   Act is clearly concerned with trade as a whole, as opposed to within a particular industry. There is no question that trade-marks apply across and
                   between industries in different provinces. Divided provincial and federal jurisdiction could mean that the provincial law could be changed by each
                   provincial legislature. This could result in unregistered trade-marks that were more strongly protected than registered trade-marks, undermining
                   the efficacy and integrity of the federal Parliament’s Trade-marks Act. The lack of a civil remedy integrated into the scheme of the Act, applicable
                   to all marks, registered or unregistered, might also lead to duplicative or conflicting and hence inefficient enforcement procedures.

                   The final step in the analysis is to determine whether the provision is sufficiently integrated into the otherwise valid statute. The inquiry has two

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                                                                                               Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 52

                     parts:
                               First, it is necessary to determine the appropriate test of “fit”, namely “how well the provision is integrated into the scheme of the
                                legislation and how important it is for the efficacy of the legislation” (City National Leasing, at p. 668).
                               Once the correct standard is determined, the test is applied on a case-by-case basis. If the provision passes this integration test, it is
                                intra vires Parliament as an exercise of the general trade and commerce power.
Ratio                The Act only minimally intrudes into provincial jurisdiction over property and civil rights. It is a remedial provision limited to trade-marks as
                     defined in the Act (ss. 2 and 6). … *Section+. 7(b) “rounds out” the federal trade-marks scheme. In this regard s. 7(b) is, in its pith and substance,
                     directly connected to the enforcement of trade-marks and trade-names in Canada because it is directed to avoiding confusion through use of
                     trade-marks.
Comments

Economic Integration and Provincial Autonomy

Ex. Securities regulation
Timely discussion relevant to General power of economic regulation
     On January 12, 2009, a final report on securities regulations (buying and selling of stocks) was released.
     Issue: Does federal govt have the authority to set out national securities regulation? Currently, it is primarily regulated at the provincial level.
     According to the report, global financial systems matter in order to put forth the best image of Cda and for this reason we need national regulation.
     QC and AB disagree
     What would a constitutional advisor say? Have to look to scope of s. 91(2), probably under the general power prong.
     Applying the Dickson 5-part test, we see that 1) it is a general regulatory scheme, 2) it is monitored by a regulatory agency, and 3) it is concerned with trade as a
      whole as it deals with a whole range of stocks, not just one industry.
     Part 4 and 5 of the test are more debatable. These parts recognize provincial contribution and make the test more complicated. Can QC and AB argue against
      provincial incapability? Can QC and AB argue that it is possible to leave provinces out?
     On the other hand, why challenge national securities at a time when our financial institutions actually need regulating.
     Is it enough for provinces to also be regulating, or will courts say that this is outweighed by greater need for a unified national scheme?
     How much power should the federal govt really have? Question must be considered from perspective of whether economic integration undermines political
      autonomy.
Interesting question: why is the federal government making this potentially divisive move right now, in a moment where it would seem that the country has to come
together and solve the economic problems that are looming. Is this how they propose to solve the problem? They are making certain provinces dig in their heels.
VERY IMPORTANT QUESTION: To what extent does economic integration from a federal point of view undermine regional or provincial autonomy/sovereignty?

Mobility Rights and the Economy

Beyond s. 91(2) and 92(13), there are many other sections that are relevant for economic discussions. Reflects founders’ economic intentions and the CmL focus on
economics.
In recent years, in light of pressures on Cdn economy from competitive global marketplace, much concern about respective roles of federal and provincial govts.

       s.91 has unemployment insurance, federal taxation, borrowing, postal service, salaries, fisheries, currency, banking
       s.92 has direct taxation w/in province, borrowing, certain local works and undertakings
       s.94 on old age pensions
       s.95 on concurrent powers for agriculture
       s.121 on mobility b/w provinces

Public debate over the need to create stronger economic union in Cda through removal of barriers to mobility of goods, services, capital and labour has led to 2 sides
of economic integration:

1. Negative Integration: Concern about unfair discrimination against factors of production from other provinces results in removal of barriers. No role for govt. No
preference given to any industry. Simply free movement

2. Positive integration: Desire for greater harmonization of standards across the country. Role for govt to ensure fairness

Q: How do you harmonize standards given organic development of regulations that impose internal trade barriers?
A: Constitutional reform, flexible federalism, intl agreements

Note on Internal Trade Barriers (CP 326):
    Concerns about barriers have continued post-1982, with ongoing debate about actual significance
    Barriers are an impediment to mobility
    Significant cost to barriers which creates national economic burden
    Additional indirect costs associated with a new activity that is deterred by barriers

Black v. Law Society of AB
          La Forest discusses relationship b/w Consitution and economic union.
          Beyond individual rights, this is a reference to economic integration as a goal of federalism at Confed.
          s. 121 mobility rights
                 o     To guaranty free market across provinces
                 o     1982 amendments and s.6 of Charter whereby citizen and permanent resident has freedom of mobility AND pursuit of livelihood and
                       reasonable residency requirements for services
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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 53

                o     Question of mobility and differential tuition fees: challenged as unconstitutional → but counter-argument that differential price a result of
                      paying into the system
                o     About equal opportunities for all Cdns: leads to discussion also about equalization payments (comparable services for comparable levels of
                      taxation)

Black and Co. v. Law Society of Alberta, [1989] 1 SCR 591; 58 DLR (4th) 317 (CBp.324)
Jurisdiction      Alberta
Facts             Toronto law firm wanted to open a branch office in Calgary. A rule of the Law Society of Alberta prohibited partnerships between resident and non-
                  resident lawyers.
Issues            Is this rule constitutionally valid?
Holding           No  Black and Co.
Reasoning         La Forest J.:
                  S. 121 [CA1867] created a single economic union between the provinces, a key objective of Confederation. Provinces thus have no right to seal
                  their borders to entry of goods or services from others. However, before the Charter, there was no specific provision guaranteeing personal
                  mobility between provinces. Positive mobility rights of Canadian citizens to live and work in any province have been established before the Charter,
                  but only by implication.
                  In the case of Winner v. SMT (Eastern) Ltd., [1951] SCR 887, Rand J. had already found that it was beyond the power of a province to prevent any
                  Canadian from entering the province or gaining a livelihood there (regarding Chinese workers in mines). This was one of several pre-Charter cases
                  where the SCC used federalism grounds to enforce what were essentially human rights matters.
                  S. 6 (2) of the Charter has entrenched mobility rights in the Constitution. S. 6 (2)b) specifies that Canadian citizens and permanent residents may
                  earn a living in any province. No citizen can be prevented from doing so; the Law Society of Alberta’s rule against partnerships between resident
                  and non-resident lawyers is therefore unconstitutional.
Ratio             Interprovincial mobility is a constitutionally protected right.
Comments          Idea of economic union: remember the railroad and E-W economic development – considered critically important to the political unification of the
                  country. The two are inter-related. Question: to what extent?
                        What does this imply for national sovereignty and NAFTA and other trade and economic treaties? How does economic integration
                         compromise political autonomy?
                        Tanya: Differing requirements regarding professional credentials undermine mobility rights. Sheppard: But standards setting is a provincial
                         matter.

NOTE: THE EXTENT OF INTERNAL TRADE BARRIERS
   More than 500 regulatory barriers to mobility of goods, services, people, and capital exist in Canada
   There are therefore impediments to the operation of a fully integrated national market
          o    These come in the form of regulations favourable to local producers, commercial standards that vary by province, hiring policies and standards for
               professionals and trades-people, and limitations on certain kinds of financial investments

Canada Egg Marketing Agency v. Richardson, [1998] 3 SCR 157. (CBp.327)
Jurisdiction  Northwest Territories
Facts         Following the chicken and egg wars, the federal and provincial governments came up with a unified marketing scheme which allocated quotas of
              the egg market to each province. At the time, there were no eggs produced in the NWT, so the NWT received no quota. Richardson started an egg
              farm in the NWT.
Issues        Did the Canada Egg Marketing Agency deny Richardson his right to take up residence in another province and gain a livelihood, as guaranteed by
              s.6 of the Charter?
Holding       No.
Ratio         Iaccobucci J found that the egg marketing scheme was enacted for economic reasons, while s.6 of the Charter was enacted for “a human rights
              purpose.” While it would have been a problem if a federal-provincial agreement had stopped someone from pursuing a livelihood at all, regulation
              of a particular trade or industry did not violate mobility rights.
              McLachlin J., dissenting, would have overturned the scheme based on mobility rights.
Comments      The court analyzed it as if it were a federalism case, even though it was a Charter case.
              It seems strange that the court only looked at the purpose, and didn’t really look at the effects.
              This decision doesn’t seem to address the fact that the Richardson was in a territory, not a province. Could the federal government prevent people
              from moving there?

Canada as an economic union was a significant part of the drafters’ intent. National unity to promote political unity. See a fusion of politics with autonomy. (Maybe a
reason why QC is so reluctant to be economically integrated is its concern that this will undermine its political autonomy).

Economic unity for:
     1. political unity
     2. robust economy
     3. common identity under one politico-economic citizenship
               See Laforest’s comment in Black v. Law Society of Alberta on Rand J’s discussion of Union Colliery v. Bryden (p. 325) where he explains that
                prohibitions on Chinese labour must be struck down because once you immigrate you should be able to work anywhere. Right to work and mobility
                cannot be denied by the provinces.
               Different visions of economic citizenship exist: contradictions of the positive interventionist and the neoconservative economist (p. 383-4)
     4. Efficiency and efficacy
               1 policy for everyone to eliminate “jurisdiction shopping” and a “race to the bottom”



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                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 54

Countervailing concerns re economic unity:
                     1. Undermines local diversity
                     2. Undermines local creativity and experimentation
                     3. Loss of provincial political autonomy through loss of regulatory roles
                     4. Is effiency the ultimate goal? What about other values? If we really only cared about efficiency, why not join the US?!

Now, in a context of global economic integration, is economic union undermined?

Removal of trade barriers: Debate over efficiency of free market and protection of inefficient industries that provide jobs.

Note on federal power to implement international agreements (CP 364)
               Potential area of future litigation: intl agreements on trade liberalization
               Ex. NAFTA
               As we know from Labour Conventions case, federal govt can only pass laws implementing treaties where the subject matter of the treaty is within the
                federal jurisdiction.
               Q: Can federal bind provincial to intl treaties by relying on trade and commerce power?

    Could mobility rights guarantees be used to challenge differential tuition fees?
         To pay Quebec tuition fees, students must fulfill one of these criteria:
               1. Born in Quebec
               2. Parent or spouse is a Quebec resident
               3. Resident for 12 months while not in full-time studies
               4. Certificate of selection/immigration to Quebec
         The Quebec Court of Appeal held that the rules were valid, because:
              Studying is not the same as earning a livelihood.
              There is no absolute prohibition involved.
              The differential fees are not excessive or prohibitive (especially since they are so low compared to those in other provinces).
              Think about the fairness: taxpayers in Quebec paying into the system to reduce tuition rates for students – why should all Canadians benefit from this
               provincial scheme?

NOTE ON THE FEDERAL POWER TO IMPLEMENT INTERNATIONAL AGREEMENTS (CBp.364)
   NAFTA addresses listing, pricing, and distribution practices for wines and distilled spirits
   Certain provinces practice pricing discrimination against out-of-province wines and spirits
   This is made possible by provincial government monopolies over liquor; they buy the out-of-province wine and then mark it up for retailing – they do this as an
    owner, not as a regulator
   Federal government can only pass laws implementing treaties where the subject matter of the treaty is within federal jurisdiction – potential use of the trade
    and commerce power?

Strengthening the Canadian Economic Union (CBp.382-384)

Changes to Constitution possible through amendment or judicial interpretation, but also through intergovtal arrangements or policy responses to intl competition.

Sheppard:
1. Constitutional reform: maybe s.121 could be improved/strengthened (expanded version of s.121 on p. 383)
2. Flexible federalism: inter-governmental agreements such as through the AIT
3. International agreements: restrict both the federal and the provincial
             - 2 countervailing trends: one is to see increased importance of global markets as a justification for broad interpretation of the federal govt’s role OR to
             see a decline in regulatory powers as international forces limit Cdn sovereignty (this is a major source of concern!).

Constitutional Reform to Reduce Barriers (CBpp.382-384)
   1982, federal govt proposed amendment to s.121 “common market clause” that would have guaranteed mvt of persons, goods and services and capital across
    provinces. Proposal not accepted. What made its way instead into the constitution was the guarantee of mobility rights of s.6 of the Charter.
   In 1992, federal govt pushed again for strengthening of s. 121 in Charlottetown, but this proposal was rejected.
    o      Contained provisions for regional development, reduction of economic disparities within provinces and territories, use of the POGG power, government
           monopolies, and existing marketing and supply management systems which are in the national, provincial, or territorial interest
   Prof. Robert Howe has criticized this as neo-conservatism, and has advocated for economic policies that encourage economic mobility and enhanced
    opportunities for disadvantaged groups and regions (increased federal regulations in order to make sure that the Canadian economy is not over-regulated (with
    duplicated regulations across each province)).
    o      Potential disadvantages: separate provincial regulations over economic matters – want to avoid potential for “jurisdiction-shopping” – promoting fairness,
           reducing regional disparities
    o      Countervailing concerns: if you start to impose one national economic regulatory model, you are going to undermine local diversity and experimentalism
           (initiatives that work on one regional jurisdictional level) – it is a long wait for the federal government to do these things
    o      Efficiency is not the be-all end-all – otherwise, why not just join the USA? Some argue that efficiency should not trump other issues, such as local
           autonomy
    o      Inasmuch as the removal of local trade barriers is more efficient, and the free market might work its magic, protectionism may be equally important to
           small groups...
    o      “Under a theory of equal economic citizenship, it is such discriminatory and unjustifiably protectionist policies and practices that require strict
           constitutional scrutiny”. Other laws and policies that serve legitimate public goals could be replaced by policy instruments that are less restrictive of

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                                                                                           Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 55

           economic mobility or that do not discriminate so sharply against citizens residing in other provinces. “This approach differs from neocon proposals for
           strengthening economic union.”

Constitutional Change Through Intergovernmental Cooperation: The Agreement on Internal Trade (CBpp.384-386)
   Flexible/executive federalism approach – see next section for more on this
   AIT (Agreement on Internal Trade) – federal, provincial, and territorial agreement signed in 1994 to remove trade barriers and increase harmonization in areas
    such as environment and occupational qualifications
           o    General rules with exceptions for “legitimate objectives” like envr protection or health and safety.
           o    Such objectives must not restrict more than necessary or unduly impair access
           o    Agreement contains dispute settlement procedures: arbitration
           o    Contents of agreement do not alter legislative authority of govt
   Set up independent arbitration/dispute resolution panel to resolve disputes outside of the judicial system
           o    Used as a way to stop the federal government from banning MMT (a substance used as a fuel additive) – controversial because it was seen as a
                threat to the environment
           o    NOTE: there is a huge range of jurisdictional authority for the federal government to legislate on this – but they were constrained by this
                interprovincial agreement!
           o    Ethyl Corporation of Virginia (sole producer of MMT) – sued the federal government under NAFTA for this same regulation (government paid $13
                million in compensation) – see section D, below
   QUESTION: Is Agreement legally binding? What about the principle of parliamentary sovereignty?

Constitutional Change Through the Courts
   Hunt v. T & N Plc – La Forest commented that the flow of wealth, skills, and people across state lines is imperative. This suggests that the SCC would support
    more activity on the part of the federal government to control the economy
   There are contrasting views as well
   While efforts to strengthen federal authority through constitutional amendment have not had much support, commentators have suggested that the SCC would
    be supportive of a more active federal role in the economy if the federal govt had will to act unilaterally.

Constitutional Change Through International Agreements
     WTO increasingly enforcing international trade agreements. They do not allow import controls, but only tariffs.
     NAFTA requires non-discrimination for investors – this interferes with measures that are seen as “expropriation”, including cigarette packaging legislation
      (CBp.387), cancellation of contracts for privatization of public property, the MMT ban, UPS vs. Canada Post, and other government actions which negatively
      affect non-Canadian investors
Argument for and against strong federal government: strong federal government can lead Canada into the world economy; however, international forces can limit
Canadian sovereignty with respect to certain economic domains! See how NAFTA has stopped both Canada and the provinces from adopting regulatory schemes –
lots of pressure to deregulate

Negative attitudes towards trade barriers: argument for free movement across provincial boundaries (“negative integration” – i.e. the government doesn’t interfere
in the free flow of goods). Other aspect: greater harmonization of standards (consumer safety and environment – “positive integration”)

Bryan Schwartz: There is a constitutional-like nature to intl agreements. They restrict the ways in which govts can act and they are very hard to change. Practically
impossible to withdraw.

Need for innovation: e.g. privacy standards and trade with the EU


Policy Instruments and Flexible Federalism
Spending Power

Before coming to any conclusions about the balance of power in Cda, have to look beyond “regulatory” jurisdiction of the federal and provincial govt to the policy
instruments that have been used to alter the formal distributions:
          -     Taxation, spending power, public ownership, interdelegation, and intergovtal agreements

At times, federal has used these instruments to centralize.
Now, in response to pressures from Qc, the federal role has been reduced in many policy areas.

Policy instruments do not reallocate regulatory juristiction. They are always subject to legislative appeal. The only way to securely shift boundaries is through
constitutional amendment.

    There isn’t much case law on this; it’s rarely litigated. The federal government does not want to risk a court case that could find it unconstitutional to have
     demanding conditions attached to federal spending. And the provinces don’t want to risk a court case that could legitimize intrusive federal conditions (p.434)
    In the postwar period, there has been a trend toward overlap and concurrency.
     o     There has also been a trend toward “executive federalism,” which is outside the domain of judicial review.




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                                                                                                 Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 56

Keith Banting, “The Past Speaks to the Future: Lessons from the Social Union” (1998) (CBp.428)
    The postwar generation had to decide whether to establish a single pan-Canadian welfare state or a series of provincial welfare states. It ended up with a
     compromise between the two.
    With unemployment insurance (1940), family allowances (1944), and old age pensions, (1951), the federal government became dominant in the area of income
     security.
    Now that economic and political strength of federal govt has declined, the original social union has come under strain

3 instruments of federal pan-Canadian social programs:
      1. Provision of benefits directly to citizens (direct federal programs): Substantial federal role in area of income security. Amendments to the constitutional
          division of power have authority to federal over Unemployment Insurance and more authority over pensions. Under doctrine of spending power, federal
          has authority to make direct payments for any purpose (ok as long as do not regulate the sector), and taxation role allows redistributive policies. These
          initiatives established a direct presence of federal govt in lives of Cdns.
                       unemployment insurance (s.91(2A))
                       old-age pensions (s.94A—but note the explicit provincial paramountcy here)
                       Both of these were perceived to require constitutional amendments.
      2. Federal shared-cost programs in areas of provincial jurisdiction: Federal govt relies on spending power to make shared-cost grants to provincial govts.
          Fiscal support for provinces mounting programs that meet requirements set out by federal legislation. A lot of debate about the terms and conditions of
          federal contribution. Provincial resistance has made conditions less detailed.
                       Health care
                       Post-secondary education
                       Social assistance
                Since 1995, the federal government’s approach has changed. Through the Canada Health and Social Transfer, provinces now receive a lump sum of
                 cash transfers and tax points, rather than specific targeted amounts.
                If the federal government attaches conditions to its transfers, is it encroaching on provincial jurisdiction?
                       In theory, a province can always refuse the money.
                       In the Meech Lake accord, the federal government offered to compensate provinces that opted out of shared-cost programs, as long as they
                        carried on similar programs which were compatible with national objectives.
                       Although this was never entrenched, the federal government made the same promise in the 1996 Speech from the Throne.
                Sujit Choudhry points out that the federal standards attached to shared-cost programs are generally not enforced, due to:
                       Lack of resources for information gathering
                       Lack of political will to interfere in something seen as provincial
                       Lack of legitimacy following federal cutbacks
      3. Equalization grants to poorer provinces: Enable poorer provinces to provide average levels of public services w/out having to resort to above-average
          levels of taxation.
                       These are entrenched in s.36(2) of CA1982.
                       These maintain the ability of the provinces to provide social services without excessive taxation.

Normative Critiques and Defences of Spending Power (CB 435)

AGAINST:
Andrew Petter, “Federalism and the Myth of the Federal Spending Power” (1989) (CBp.435)
   Petter finds the spending power problematic on two grounds:
         It allows the federal government to meddle in areas that are clearly of provincial jurisdiction. It is thus inimical to basic federalist principles. (Petter seems
          to be defending a kind of subsidiarity.)
   It mixes up responsibility for certain fields between two levels of government, which detracts from accountability and “responsible government.” This also
    confuses citizens who would like to campaign for any kind of policy changes—which level of government should they address?

FOR:
Sujit Choudhry, “Recasting Social Canada: A Reconsideration of Federal Jurisdiction over Social Policy”) (2002) (CBp.437)
     Choudhry argues in favour of federal jurisdiction over social policy based on the idea of a kind of “race to the bottom”: Provinces that tax the rich to provide for
      more generous services will see an exodus of rich people and an influx of poor people.
          This scenario assumes that moving is cheap.
     Someone commented in class that moving is cheap for poor people, and this scenario seems to reflect what happened in B.C. under the NDP government: There
      was an influx of homeless people.

Note on Constitutional Amendments (CB 439)
Proposed amendments were not passed. But in a throne speech, govt made promise not to use spending power to create new shared-cost programs in areas of
exclusive provincial jurisdiction w/out the consent of a majority of provinces.

Note on the Enforcement of National Standards (CB 440)
National standards set out in Cda Health Act: flash point for federal-provincial controversy.
But, according to Choudhry, national standards are largely unenforced:
           -     “federal abdication of responsabilities is a national embarrassment”
           -     Why the lackluster performance?
                      o     Lack of institutional capacity to gauge provincial compliance
                      o     Lack of political will (concerns about national unity)
           -     End result of failure to enforce is a loss of legitimacy and political capital for the federal govt


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                                                                                                Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 57

Social Union Framework Agreement (SUFA) (CB 441)
Federal govt and all provinces and territories (except Qc) signed SUFA to provide normative framework for federal-provincial relations in the social policy arena.
Noteworthy is Article 6 which provides dispute settlement machinery for disagreements regarding interpretation of national standards.

Note on Equalization (CB 442)
Unlike other transfers, it is anchored in text of Constitution (s. 36(2))
Design of Equalization differs from CHST (shared-cost) in 2 ways:
     1. Unconditional
     2. Not made to every province. And level of per-capita payments varies from province to province

Note of Federal Taxation Powers (CB 442)
Federal power to tax (s.91(3)) is virtually unrestricted (despite Unemployment Insurance Reference)
Provinces’ powers more circumscribed since limited to direct taxation w/in the province.

Class discussion of Spending Power
Q: What do spending power (and taxation), intergovtal agreements and delegation b/w govts have in common?
A: They challenge us to think about acts that defy constraints of constitutional jurisdiction

Federalism is more than formal rule of law. It is the practice of govt.
The role of govt and what it provides have changed over the years. Not static.
           Post-WWII: Rise of welfare state
                  o    Strong role for govt through safety nets, education, health, infrastructure
                  o    Funding for socioeconomic programs → 80% from federal govt!
           Mid-1970s: Neoconservative ideology
                  o    Questioning role of state intervention
                  o    Context of govt deficits
                  o    Emergence of neoliberal ideology which influences govt policy
                  o    Block grants of $ given to provinces are reduced
           Post-neo-liberalism: Clinton and Blair
                  o    Compromises b/w neo-con and New Deal ideologies
           Post 9/11: Recast role of state
                  o    Increased military spending
                  o    Today, with economic crisis maybe there will be a shift towards infrastructure development

Q: How does these periods affect constitutional law?
Is there a right (in constitutional terms) to housing, social assistance, health, education…?

Sources:
          s. 91(1)(a), 91(3), 106 and royal prerogative to spend its money
          Lord Atkin in Unemployment Insurance Reference
          Unemployment Insurance Amendment
          Pensions: right of federal govt (only Qc has a separate plan)

2 approaches:
1. Direct federal programs (often raised through taxation):
           Pension, unemployment insurance, income security, family allowance
2. Shared-cost programs (more controversial, shift to block grant formula was decided without consultation)
           Initially a 50/50 formula
           Shifted to global block grant formula → more provincial freedom but less money allocated

Strings and conditions:
To what extent should these be allowed? Ex. Cda Health Act as accessible and universal. Conditions are imposed
Distinction between conditions and regulations. What is the difference? (p. 433)

Justification for conditions:
       1. National standards
       2. To prevent a race to the bottom
       3. Fundamental values/rights/Charter
       4. Federal govt has to ensure responsible spending

Are provinces demonstrably worse at providing these services?
What about the promotion of a provincial social welfare state?
Petter v. Choudhry: Fracturing of political authority and fear of not knowing who is in charge v. race to the bottom
Provinces can always say no.

Louise Gosselin class action against decision to cut welfare payments by 2/3 if not participating in efforts to find work. Argued under s. 7 of the Charter but lost.
Court distinguished between positive and negative rights.
           Dissent by Louise Arbour: Time to recognize positive rights under s.7 of the Charter. She took a controversial position. Most judges don’t want to tell govt
            what to do. Do we want judges playing a legislative role?
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                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009    p. 58


The federal govt has more revenue than the provinces, has the responsibility of spending, can impose restrictions on provinces and benefit from scarcity of litigation
around the issue. Provinces have proven docile, but warn not to go too far.

[note: this whole area may have less litigation b/c it is an area with more consensus – who doesn’t think healthcare should be accessible?+

p. 439 of CP: Proposed amendment made to spending power (1987 and then 1992). Neither was passed.
Amendment was to allow provinces to develop their own programs and receive money to finance them. Although neither passed, they were later acknowledged in a
crown speech.

Case study: Does Cda need a national childcare initiative? And should it fund one on the condition certain requirements (health and safety, accessibility) are met?

p. 441 of CP: SUFA
Reflection of Cdn values. Interesting because not just imposing system, but it is a product of consensus and discussion. Example of executive federalism where
decisions come out of meetings with representatives and form an intergovtal dialogue.

Note that executive federalism is not enough. Have to consult the people as well. Should be engaging. Not just between powerful men (Cda has a poor record with
this).

Cda Assistance Plan (below): Cda acted unilaterally. Challenged but failed. Out of sync with the movement that there should be more consultation (like there was
with SUFA).

Intergovernmental Agreements

    Intergovernmental agreements: These can be detailed contracts (like the Agreement on Internal Trade) or general statements of goals and policies.

Reference Re. Canada Assistance Plan (BC) [1991] (CB p. 443)
Jurisdiction    BC
Facts           This case deals with the enforceability of intergovernmental agreements in a context where the federal government has unilaterally altered its
                obligations to certain provinces under the Canada Assistance Plan. BC initiated this reference to determine if the federal government could reduce
                its contributions based on BC being a “have” province. Court of Appeal relied on doctrine of legitimate expectations to find that the federal
                government was required to obtain BC’s consent.
Issues          Can the federal government reduce its contributions?
Holding
Reasoning       Sopinka CJC:
                     Parliamentary sovereignty applies even without the enactment: “principle reflects principle of parliamentary sovereignty.” Government could
                      not bind parliament from exercising its powers to legislate amendments to the Plan. Both parties would have known this going into the
                      agreement and if they felt this should not be the case, they should have specified in clear language that the payment process was frozen.
                     The part that says “authorized to pay” must be read as authorization from time to time and the government was not precluded from
                      exercising its power to introduce legislation to Parliament to amend the Plan.
                     Since this case, the binding nature of governmental agreements has been debated (Yes – 94 Agreement on Internal Trade, No – Canada
                      Assistance Plan Reference). Constitutional amendments were proposed to making intergovernmental agreements binding following the latter
                      decision (126A(1)) during the Charlottetown Accord.
Comments        Sujit Choudhry notes three readings of this decision, each broader than the one before:
                      1. The agreement did not specify amount of funding, leaving this to the discretion of federal legislation. Agreement never breached.
                      2. The agreement was binding, but it could be discharged by conflicting legislation. Until then, each party was bound to its terms and could
                            be held accountable by a court.
                      3. The agreement only created political obligations, not legal ones.
                Sheppard:
                     If the federal government negotiated an agreement, can it unilaterally change the agreement by consultation? Was found that because of the
                      wording of the statute, the government was not restricted from going back and changing what was said under the assistance plan.
                     There is increasing accountability however for the governments to go back and re-negotiate.

Notes (CB 445): In response to Cda Assistance Plan Reference
    Binding nature of Intergovernmental Agreements: 1994 Agreement on Internal Trade. Canada Assistance Plan Reference suggests that provinces could refuse to
     comply (despite detailed obligations of federal, provincial and territorial governments)
    Charlottetown Accord of 1992: In response, proposed a constitutional amendment to make intergovernmental agreements binding.

Intergovernmental Delegation

(CB 446) Another way to get around constraints of distribution of powers is through delegation of functions.
Cannot delegate legislative powers directly. So need to use indirect means.

Strict position:
In the 1951 Nova Scotia Interdelegation, the SCC rejected argument that federal and provincial could legislate power to one another. Levels of govt are sovereign w/in
their spheres, but neither has unlimited power. Can only exercise legislative powers given to them by ss. 91 and 92. ** “Constitution does not belong either to
Parliament or to the Legislatures. It belongs to the country and is there to protect the rights of its citizens” **

Relaxed position: Since then, court has relaxed and permitted extensive delegation though:
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                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 59

     1.    Administrative Delegation: functions delegated to another level of govt
     2.    Incorporation by Reference of the laws of the other level of govt as they exist (or as they may be amended from time to time)
     3.    Conditional Legislation: whereby provision does not come into effect at other level w/out fulfillment of certain provisions or approval by that level of govt

For example of these devices to circumvent holding of Nova Scotia Interdelegation:

Coughlin v. Ontario Highway Transport Board (1968) (CB 447)
Jurisdiction        Ontario
Facts               Parliament enacted Motor Vehicle Transport Act. Delegated power to provincial highway transport boards to regulate interprovincial trucking
                    (federal jurisdiction: S. 92(10)(a)). Coughlin engaged in extra-provincial trucking and challenged constitutionality of delegation to issue extra-
                    provincial licenses.
Issues              Is delegation of power to make laws in relation to the subject of interprovincial motor vehicle carriage an unlawful delegation?
Holding             No  Ontario
Reasoning           Cartwright CJC:
                               Constitutionally valid. Since power granted by Parliament to Board, and not through provincial legislature, it is not a case of
                                delegation of law-making power, but rather “the adoption of Parliament of the legislation of another body as it may from time to
                                time exist.”

                      Ritchie J (dissent):
                                  Act confers direct authority to local board of each province to use discretion in issuing licenses.
                                  Effect of legislation is to give control to provinces over regulation of licensing.
                                  No control was retained by federal government over the unlimited legislative powers which it transferred.
Comments                   Delegation intersects with the aboriginal governance question because just as negotiations are limited by the constitution, the delegation
                            doctrine provides that delegation is allowed so long as the relevant legislative branch oversees and can regain control. It cannot be re-
                            writing of the text that changes the division of powers.



Aboriginal Governance and Federalism [CBp.627-630]
Campbell v. AG BC (2000)
General right to self-government:
   Dealt with submission that recently adopted Nisga’a Treaty was inconsistent with division of powers granted to Parliament and the legislative assemblies of the
    provinces granted by ss. 91 and 92.
   Opponents argued Agreement was of no force b/c purported to provide Nisga’a govt with powers currently delegated to federal or provincial.
   Williamson J (BC Supreme Court) disagreed: said that self government is “a constitutionally protected right”
    o      Although with Confederation, the right of Aboriginal people to govern themselves was diminished, it was not extinguished
    o      CA1867 does not end what remains of the royal prerogative or aboriginal and treaty rights
    o      Ss. 91& 92 CA1867 did not distribute all legislative power to Parliament and legislatures – only those areas enumerated
    o      S.35 CA1982 guarantees any self-government (limited only by interference that “can be justified and is consistent with the honour of the Crown”) that
           existed after assertion of British sovereignty and not extinguished by pre-1982 federal legislation
                S. 35 CA1982 – focus of important aboriginal rights-based litigation (treaty rights)
                Nisga’a govt subject to limitations in treaty and limited guarantee of s. 35: does not have absolute or sovereign power
    o      Decision: treaty and legislation constitutionally valid
   Case lists Nisga’a govtal powers as follows:
    o      1st category: In matters of identity, education, cultural preservation, Nisga’a law will prevail if conflicts with federal or provincial law (although in many
           cases only if consistent with comparable standards established by Parliament – like for children, it would have to be in best interest of the child).
    o      2nd category: In matters of police, courts, criminal law, labour relations, fisheries, alcohol, gambling, and laws concerning assets, federal or provincial law
           will prevail if Nisga’a law conflicts.

What’s in a name? “Aboriginal” for First Nations (Indian), Inuit, Metis…
Terminology difficult. Elaboration of rights has been the result of our general lack of knowledge about diversity

S. 35: Focus on the importance of rights-based litigation.
But before we talk about rights, we need to think about the significance of s. 35 within the doctrine of federalism

When we think about federalism, we think about doctrine of paramountcy, double aspect, etc. What about initiatives to restructure Aboriginal governance into
federalism?

Problem with status:
    Status Indians are those who are recognized under Indian Act (1876)
    But some communities never registered, some renounced status for other rights, patrilineal descent of status
    Non status: Indians who weren’t registered, Inuit and Metis

In the 1970s, patrilineal descen was challenged as discriminatory under Equal Protection section of Cdn Bill of Rights → Lost! SCC said equality provisions were only
about the administration of law, not content. So, if all women discriminated against equally that was ok. Substance was safe from challenge.
     Motives for reasoning: There was concern that if allowed, non-status men would be able to join reserves through marriage. Also wary about using rights
      discourse to challenge the Indian Act which confers special rights
     Case followed by Lovelace case. Succeeded at intl level. Granted right to participate in life of community to which she belonged.
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                                                                                         Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009    p. 60


Royal Commission’s Report on Aboriginal Peoples (1996) – extensive research and hearings throughout Canada
        Used as a source in judicial proceedings
        Highlights in very clear terms four stages of the relationship between Aboriginal peoples and colonists:
               1. Pre-colonization: independent and evolving autonomous peoples; self-governing with economic
               2. 1500s-1800s: Nation-to-Nation relations – references in Abele and Leclair articles (reflected in Royal Proclamations) – recognition by colonists
                     as autonomous, self-governing peoples
               3. 1800s onward (esp. Late 19th-century): decline in fur trade, increasing conflict between colonists and Aboriginal, growing ideologies of white
                     supremacy, emergence of paternalistic policies (e.g. compulsory education, Reserves), peaceful times in which Native populations were not
                     needed as allies
                               Domination: coercive and assimilatory policies (Residential schools, passes to leave reserves)
                               Decline of life expectancy, poverty, destruction of culture (break in transmission)
                               White Paper – suggested that assimilation was the way to go
               4. 1970s onward: beginning with SCC decision (Calder case) – recognition of Aboriginal rights. “Restructuring the relationship”
                               Recognition of Aboriginal peoples as an important part of the Canadian identity




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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 61

Frances Abele and Michael J. Prince, “Aboriginal Governance and Canadian Federalism: A To-Do List for Canada”
   Significance of treaties and treaty making which is a form of intergovernmental agreement.
   Shows an approach using negotiations to decide what will happen to aboriginal communities.
   Aboriginals treated as subset of federal jurisdiction traditionally but this is changing with the negotiations that are emerging. It is a new approach that affects
    them as well as the provincial and territorial governments.
   In theory, these agreements are supposed to be consistent with the written word of the constitution but in practice, there are ways to push the parameters of
    constitutional law (key assumption at the outset of this article)
   10 kinds of federalism table: classical federalism (what we deal with in this class), which by and large leaves out territorial and aboriginal governments, judicial
    federalism (focus on how courts interpret federalism), province building federalism (which builds on this).
   Two significant reforms: (1) B.C. treaty making process, (2) Nunavut public government (move in direction of self-governance but very different from treaty).
    Both have the normative perspective at heart that it is important to recognize aboriginals as a nation and to move forward in securing self-governance; a shift
    from confederation’s prominent mentality:
         History: Nation-to-nation treaty making process, followed by ideology of assimilation- predominant SCC approach to regulating first nations communities
          (eg. Indian Act; status, non-status, reserves, voting) up until 1971.
   Urban sprawl of Aboriginals is not addressed in the article: raises complex questions because the development of self-governance in a distinct territorial region
    (or even Nunavut, where the majority is Inuit) is different when you are not geographically together.


EXAMPLE 1: Treaty Process




    Treaty process in the East – requirement of the governments at the time of negotiations
    In the West and the North, there is no history of treaty-making
               Inuit people in Labrador – did not want to participate in negotiations with federal government, instead wanted to go to the international community
    BC Treaty Commission set up negotiations with Aboriginal communities – provincial initiative
               Important negotiations with Cree in Quebec
               Who speaks for the Aboriginal community?
               Third-party involvement in treaty negotiations (non-governmental actors)
                           Fundamental underlying justice issue
                           S.35 jurisprudence has clear, read-in consideration of third-party rights
               Processes set up to figure out who should participate in the process and how the negotiations should proceed
               Only a small number of communities in BC are participating in this process
                           Some reject the process
                           Others want to “wait and see” how it goes with other negotiations before entering talks
               Where do individual lives come in? This is a collective bargaining system – individuals have a limited say
    Are treaties Constitutional Law, binding on governments?


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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009   p. 62

EXAMPLE 2: Nunavut
             Created in 1999 as a new Territory of Canada
             How does this differ from a treaty process?
                        It was the result of a treaty process
                        Youri: This is an example of flexible federalism – the adaptation of institutions of federalism to address issues of the community
                        Tiffany: Aboriginal representation in government – autonomy
                                    Inuit and non-Inuit residents are experimenting with systems of government
                                    Favouring public (all residents) vs. ethnocentric government – Inuit and non-Inuit participating in government where non-Inuit
                                     are the minority
                        Territories do not have the same status as provinces – they are created by statute and are subordinate to the federal government, but in
                         practice, they are quite autonomous

Leclair: Focuses on contrasting his model with judicial methods/treaties which essentialize Aboriginals
     Have to look beyond formal legal texts to understand federalism.
     Macdonald: reconstitutive constitutionalism

    Look at formal, but also look at the lived history
    Aboriginals are actors within the system, not just passive victims, have a role to play in Cdn governance

    No Treaty Process
    No Cultural Essentialism
    No Separatedness Model

Jean Leclair, “Federal Constitutionalism and Aboriginal Difference”
    New approach (“federal constitutionalism”) suggested as an alternative to “frozen rights” or treaty approaches to aboriginal law issues
    Proposes Aboriginal sovereignty over internal affairs, and direct participation in federal and provincial government
    S. 35 CA1982 “aboriginal rights” – has been given a limited interpretation (“culturally significant practices that existed during the pre-contact period”
          “Therefore, … it is antiquity and not native political autonomy that forms the basis of aboriginal rights in Canada.”
    Idea of “authentic aboriginal culture” is problematic; so is the idea of “inauthentic aboriginal culture” – warning against axiomatic/dogmatic approaches to
     aboriginal vs. non-aboriginal identity
    Aboriginal identity closely tied to tradition
          Importance of recognizing dissent within communities about understanding of those traditions
Treaty federalism
    Differences between treaties and constitutions:
          Treaties tend to be treated as “frozen rights”
          Constitution can be looked at as a “living tree”
    Treaty federalism requires representatives from community to deal with government
    Treaty federalism (“two-row wampum”) approach creates too much separation between aboriginal communities and the larger provincial and national
     communities
          Broader delegation of power by federal government might be all they need or want
    Lack of political leverage keeps weaker communities from getting negotiated treaties
Federal Constitutionalism
    Approach that allows separate communities spheres of political autonomy
    Requirements of this sort of system (Gaudreault-DesBiens)
          Trust
          Equality
          Autonomy
          Efficiency (of the alliance)
                 Subsidiarity and federal arbitration
          Federal solidarity
    Living constitutional approach is key – grounded in ancient practices, modeled by local influences and traditions – slow and continuing growth
    Recognition of aboriginal peoples as actors – enables to move past the “victim” identity and destroys the terra nullius image of Canada
    Aboriginal peoples are claiming political authority over persons that the Canadian state also wants to subject to its own authority
          Federal principle would manage this conflict better than a treaty system
    Land rights are appropriately settled by treaty; internal affairs questions are better settled by a federalist approach
    Constitutional federalism approach allows for “living tree” view of native culture – not a 16th century idea
    Would also give exclusive authority to internal aboriginal matters, even if the non-aboriginal community has interests in them
    Federalism approach recognizes interlocking allegiances (differing conceptions of community)
    Encourages aboriginal participation in provincial and federal governments

    Specificity of Canadian constitutionalism
    International Human Rights developments – declarations on the rights of indigenous peoples – Canada did not sign on (note difference between convention and
     declaration)
    Indigenous people all over the world, and constitutions of nation-states must think about the relationships between non-aboriginal and aboriginal communities
    Terminology is very complicated
          We tend to speak of aboriginal peoples as a homogeneous group – but this is not the case
                12 language families, 50 linguistic groups
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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 63

    Judicial interpretation of S. 35 – requirements linked to specificity of communities, which is also sometimes problematic
    General lack on knowledge about the diversity of aboriginal peoples reflects how these issues have not been properly addressed


Quebec and Asymmetrical Federalism (CBpp.456-466)
Qc continues to press for a veto in the amending formula. Unsuccessful except for list of matters in s. 41 which give veto power to ALL provinces. (Meech Lake would
have expanded this list – but it failed)

Post Referendum of 1995:
    Parliament enacted Constitutional Amendments Act
     o     Provides regional veto (including veto for Qc) in the form of a promise not to propose any constitutional amendment without the agreement of the 5
           regions of Cda except where a province affected can exercise a veto or opt out of the amendment (list from s. 41 or 43)
     o     Does this make amending formula unnecessarily rigid?

Reference re Secession of Quebec, [1998] 2 SCR 217; 151 DLR (4th) 385(CBp.458)
Jurisdiction     SCC
Facts            Reference regarding constitutional amendment effecting the Secession of Quebec.
Issues                  1. Can Quebec unilaterally secede under Canadian law?
                        2. Can Quebec unilaterally secede under International law?
                        3. If there is a conflict, which law trumps?
Holding                 1. No.
                        2. No.
                        3. N/A.
Reasoning              Holding was a surprise (CB 458): Obligation to Negotiate
                        o      Secession is a legal act as much as a political one. Have to look at its legality.
                        o     Constitution is expression of sovereignty of the people of Cda
                        o     Legality of unilateral secession: supposed juridical basis for such an act is clear expression of democratic will in a referendum in Qc
                        o     Results of referendum have no direct legal effect on constitutional scheme, but as the expression of the democratic will of the people, it
                              would confer legitimacy on efforts to initiate the constitutional amendment process in order to secede by constitutional means.
                        o     Federalism and democracy mean than the clear expression of the desire to secede would give rise to reciprocal obligation to negotiate
                              changes.
                        o     Negotiation: Neither side can deny constitutional rights of the other. Negotiation must be in line with constitutional principles of
                              federalism and democracy. No absolute entitlement to secession, just to negotiations in good faith.
                        o     Ultimately, will have to be answered in political forum. Court cannot answer question.
                 The Court refused to assess what is a clear majority – this is a political question. The Court also implied that the consequences for a party not
                 negotiating in good faith would undermine the party’s credibility in the eyes of the international community – implies that final jurisdiction might
                 be international law or politics?
Ratio            If Quebec wants to secede, there is nothing in the Constitution that would forbid it, but there would have to be a formal constitutional
                 amendment – Quebec could not unilaterally secede because of the requirements to amend the constitution with the participation of the
                 provinces, according to the formula.
                 If a clear majority of the Quebec population votes to secede in a referendum with a clear question, then the rest of Canada has a legal duty to
                 negotiate in good faith (but did not specify whether “rest of Canada” meant just federal government, or the provinces as well).
Comments               Federal Clarity Act (CBp.464) tried to answer some of the questions raised by the SCC reference (regarding clear majority, clear question).
                        Quebec also passed legislation regarding The Exercise the Fundamental Rights and Prerogatives of the Quebec people and the Quebec state –
                        said 50%+1 of the votes cast equal a majority for the purposes of a referendum question.
                       International law – provides for the self-determination of peoples. But what does that mean?
                       Duty to negotiate in good faith – what does that mean?
                       Lots of process questions coming up. How to go about doing this?
                       Sheppard thinks that if Canada is going to work in the long term, differences must be recognized and accepted. It’s still a simmering, ongoing
                        issue.

Benoît Pelletier, Asymmetrical Federalism – A Win-Win Formula!
Representative of the Quebec government
    “Real” equality can only be achieved by asymmetrical federalism – taking each province’s unique needs into consideration (“substantive” equality vs. “formal”
     equality)
    Celebrating diversity as a strength within a federation
    Reduction of “unwarranted tensions and counter-productive confrontations” and the reduction of the need to secede
    Concern: what does “substantive equality” mean? Who is being “treated equally”? How is that to be delineated?
    S. 36 “Equalization clause” – equalization payments made across provinces to ensure a uniform standard of public services – distribution of wealth/resources
     (“outcome-oriented” equality)
    De jure and de facto asymmetry
          S. 133 – allowed to use Eng. or Fr. in the debates in the houses of parliament, both national and Quebec – more onerous requirement for bilingualism -
           asymmetry
    Opting-out possibilities for programs that can be run either federally or provincially

Questions: What is asymmetrical federalism and does it help mediate the discussion?
   It is connected to concept of equality.

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                                                                                                   Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009   p. 64

     Symmetrical is about formal equality (equal tx)
     Asymmetrical is about substantive equality (s. 15 of Charter)

Is substantive equality really just… differential tx? B/c really, the case of Qc is that its specificity is taken into account and it is treated differently.

Other angle: centralized vs. de-centralized government
    Concern that national unity will be undermined
    Counter-argument: what unites us as Canadians is our recognition and protection of minorities
          o     “Melting pot” vision is not what Canada wants
    QUESTION: Does it make sense?

Could asymmetrical federalism work with minorities not joined by territorial boundaries?

When we talk about equality, we’re really talking about provinces.
   Ex. Equalization payments are really a substantive equality issue. Vision of an outcome-oriented equality.
   Can we simply call this equitable equality?

Note the two forms that asymmetrical federalism can take:
    De jure: specific rules/legislation for Qc
    De facto: ways in which Qc has acted differently through practice and Intergovt Agreements

Cohesion and nationality: what is the Qc nation? Do you need to share the ethnolinguistic heritage?
   If you deviate from this, what do you share? Maybe common hardships…
   What forges an identity? Territory? Economic hardship? Winter!?
   How do you forge an identity that celebrates diversity?

CBC clip of Rene-Levesque: Ties into the Secession Reference.
    Problem with forging a Quebecois identity that includes sovereignty – Rene Levesque
    De jure: Written text of the constitution (s. 93 and 94) formally allow asymmetry for Qc and other entholinguistic groups. Formal recognition of differential
     status.
    De facto: Reality is that Intergovtal agreements provide opt-out possibilities and Qc always makes use of them.

Qc was left out of negotiations to amend the Charter. Post-facto efforts to bring Qc back into the fold.
   Ex. Meech Lake and Charlottetown were failed efforts to constitutionalize the recognition of Qc as a distinct society (language and CL as 2 key factors)
   [Meanwhile, Aboriginal communities contested Meech Lake b/c they had been left out, and although Charlottetown has something for everyone, it also didn’t
    have enough for anyone]

Fall 2006: “Quebecois” was recognized as a nation by a formal resolution of Parliament. Form a nation within the federation of Canada. *note use of “quebecois’ and
not “Quebec” to focus on the ethnolinguistic/cultural aspect]
[see Michel Seymour for an argument that Qc is really more of a sociopolitical and territorial design]
Qc is distinct because of its majority. But how do you recognize this without excluding the rest of the population?
Does the homogeneous “Quebecois” really reflect reality?

What are the implications of this? We give special status to French culture over other immigrant cultures because of its founding status?




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                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 65


Part V: Human Rights and the Canadian Constitution
Antecedents of the Charter
    We normally associate rights-based action with post-1882. But rights did not emerge out of nowhere. Previous successes/failures shaped the development of
     the Charter.
    Pre-Charter rights cases show:
     o     The extent to which federalism is a mechanism for protecting minority rights (as argued in the Quebec Secession Reference).
     o     The fact that CA1867 did not have the power to deal with issues of equality and discrimination.
    In these cases, keep in mind: the social and economic context, the role of law and the role of legislatures, and the role of courts.

Rights, Racism and Federalism (CB 644)
   Asian immigration began in B.C. and spread east.
    o     Men came first; families followed.
    o     Asians worked in mining, on the railways, and as domestic servants.
    o     Discriminatory legislation began in the 1870s, limiting Asian employment, property rights, licensing of businesses, voting rights, freedom to hold public
          office, and so on.
    o     This occurred in the context of an ideology of white supremacy.
    o     White workers were hostile to Asians and saw them as competition.
    o     These cases were brought on federalism grounds, but were largely unsuccessful – federalism was not a strong basis for challenging discriminatory
          legislation (does not address the actual issue, but tries to get around it!)

Union Colliery Co. v. Bryden [1899] A.C. 580 (P.C.). (CBp.646)
Jurisdiction     British Columbia
Facts            The B.C. Coal Mines Regulation Act prohibited employment of “Chinamen” for underground work in coal mines. Mine owners didn’t like it because
                 it denied them cheap labour, and many of them disobeyed it. Bryden, a shareholder in Union Colliery, sued Union Colliery for employing Chinese
                 workers, in hopes of having the law declared ultra vires.
Issues           Did B.C.’s discriminatory law encroach on federal jurisdiction?
Holding          Yes. S. 4 of Act is ultra vires the provincial legislature.
Ratio            Lord Watson:
                      Although the Act had to do with property and civil rights, it also encroached on the federal s.91(25), “naturalization and aliens.” Watson held
                       that s.91(25) included not just the process of naturalization, but also the rights and privileges of people who have been naturalized.
                      Watson interpreted the rule to apply only to aliens and naturalized subjects (i.e., not to Canadian-born Chinese), and therefore found that the
                       pith and substance of the regulation was naturalization and aliens – not about the rights of racial minorities.
                      Case is about the division of powers in federalism. Not about the quality of the rule. (Formalistic reasoning)
                 “Naturalization seems prima facie the power of enacting what shall be the consequences of naturalization” (i.e. what are the rights and privileges
                 that naturalized Canadians would be accorded)
Comments              It’s unclear whether there were no Chinese-Canadian men, born in Canada and old enough to work on the mines by this time, or whether
                       Watson used a bureaucratic (rather than a racial) definition of “Chinaman.” The latter possibility seems like it would have been ahead of its
                       time.
                      Interesting to note that this case was brought by a shareholder of the company – business interest in keeping cheap labour?
                      Note also that in all three of these cases, the court says that “it is not up to the court to assess the wisdom/substance of this legislation, but
                       only its legality” – smokescreen? Way to couch a judgment that may be unpopular.
                      Precursor to the mobility rights clause? That once you have been brought into Canada, you should be free to enjoy all of the rights and
                       privileges that Canadians enjoy?

Cunningham v. Tomey Homma, [1903] A.C. 151 (P.C.). (CBp.648)
Jurisdiction   British Columbia
Facts          B.C.’s laws prohibited Japanese (whether naturalized or not) from being entered on the electoral rolls. Tomey Homma applied to have his name
               listed, and Cunningham (the official) refused. Appeal based on argument that ss. 91 and 92 deny the province the power of making any decision as
               to disqualify a naturalized Japanese from electoral privileges.
Issues         Was B.C. ultra vires in banning Japanese from voting?
Holding        No.
Ratio          Lord Halsbury acknowledged that the Naturalization Act of Canada stated that “a naturalized alien shall within Canada be entitled to all political
               and other rights, powers and privileges to which a natural-born British subject is entitled in Canada.” However, he found that the B.C. law fell under
               s. 92(1), regarding the constitution of the province (repealed in 1982).
                     It was within the province’s power to grant suffrage or take it away; suffrage was a “privilege”
                     Halsbury distinguished Union Colliery, since this dealt with the “ordinary rights” of inhabitants of B.C. Again, the JCPC said that it was not
                      assessing the wisdom or fairness of the law.
Comments       It’s generally acknowledged that this decision was inconsistent with Union Collery (see Bruce Ryder, below).
               I’m puzzled as to why the issue of paramountcy didn’t come up—it seems to me that there was a direct conflict between the Naturalization Act of
               Canada and the B.C. law.
               On their face, both of these laws were racist laws – race-based distinctions. However, the court argued in Union Colliery that it was only to deal
               with the immigrant population (citizenship status); in Tomey Homma, it was dealing with descent – citizenship status had nothing to do with it
               (Canadian-born Japanese would still be refused the right to vote).




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                                                                                           Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 66

Bruce Ryder, “Racism and the Constitution: British Columbia Anti-Asian Legislation, 1872-1923” (CBp.650)
   Homma was a revisionist understanding of Bryden and removed any constitutional challenge to the racial status quo. PC abandoned Lord Watson’s view that
    gave the federal govt jurisdiction over all the consequences of either alien or naturalized status. Decided that federal only had authority over “ordinary rights”
    to reside and earn employment in a province.
   Ryder says that Cunningham v. Tomey Homma’s limiting of the Union Colliery case can only be understood in terms of the racist assumptions and beliefs
    prevalent in society at that time. “Provincial laws imposing racial disabilities were held to be valid when they were believed to rest on accurate assumptions
    about racial difference.” Thus no one could be prevented from earning a living (especially as a labourer), but voting rights and rights as employers were another
    matter.
   Post-Homma, s. 91(25) became about employment only. Refashioned in light of racist assumptions.
   In this way, jurisprudential accommodation used racial similarity and difference to ratify a social order premised on racial hierarchy.

Quong Wing v. The King, [1914], 49 SCR 440. (CBp.651)
Jurisdiction   Saskatchewan
Facts          Saskatchewan enacted the Female Employment Act, which prohibited any “Japanese, Chinaman or other Oriental person” from employing a “white
               woman or girl.” Quong Wing employed two white women as waitresses in his restaurant, and was charged under the Act.
Issues         Was the legislation ultra vires?
Holding        No.
Ratio          Davies J:
                   In an ultra-formalist judgment (“What objects or motives may have controlled or induced the passage of the legislation in question I do not
                    know.”), Davies J found that the right to employ white women was a civil right under s.92(13), and that it was one that the legislature could
                    grant or take away.
                   He saw no constitutional reason why such a right could not be denied to a racial group.
                   He distinguished Union Colliery, because he did not find that the pith and substance of this law dealt with naturalization and aliens.

                  Duff J:
                       Prohibition relates to ethnicity, not nationality. Prima facie the Act does not deal with aliens or naturalized subjects as such. Legislature
                        seems to be simple regulating a local situation.

                  Idlington J (dissent):
                       In a searing rebuke, Idington J argued for equality rights, and condemned the Female Emloyment Act as being “the product of the mode of
                        thought that begot and maintained slavery.”
                       He also appears to have made a paramountcy argument, based on the Naturalization Act of Canada. Idington J would have read down the
                        legislation to have it only apply to non-naturalized “Chinamen.”
Comments          Sheppard:
                       Here the case is not about the Chinese, but about the protection of white women!
                       [but really, is the legislation not actually targeting Chinese entrepreneurs via these women?]
                       Effort to use P&S to say it was about property and civil rights and the protection of women.
                       Majority: P&S is about protection of women
                       Iddington’s dissent: Equality is not to be taken away by the whims of the legislature
                       Duff: P&S is racial but that’s ok b/c it was justified in Homa

    In the case of Johnson v. Sparrow (1899), a black man sued a Montreal orchestra because they would not let him sit in the orchestra seats that corresponded to
     the tickets he had bought—they made him sit at the back. The orchestra had a regulation prohibiting coloured persons from occupying orchestra seats.
     o     Archibald J also talked about the abolition of slavery and equality before the law, and held that any regulation excluding people based on race was
           unreasonable.
     o     However, this was a “private” law case; it was not intended as a constitutional challenge.
     o     The Christie Tavern case in the 1940s contradicted Johnson v. Sparrow.
    The 1901 Royal Commission on Chinese and Japanese Canadians concluded that assimilation was impossible, and that it was therefore necessary to stop
     immigration.
     o     The Canadian government implemented the Chinese Head Tax and later banned Chinese immigration altogether.
     o     The Canadian government negotiated with the Japanese government to try to reduce migration.
    CB 655: Similar problems for Japanese during WWII: War Measures Act followed by National Emergency Transitional Powers Act. Provisions for deportation of
     Japanese persons who were British subjects. Challenged unsuccessfully.

    Not a whole lot of encouragement in using federalism for rights. Doesn’t provide us with enough to fight inequality.
    Raises question: Is P&S a useful tool? Is law objective or political?
    Legal formalism critiqued by legal realists. Doctrinal rules don’t tell us outcome.
    Led to development of Critical Legal Studies which argues that law is political. And it law is political… why do we give judges so much power?

    Sense that we need more protection…

The Implied Bill of Rights
    Rights such as religious freedom and freedom of expression were easier to defend (rather than racial discrimination) because of the basis of the Canadian
     constitution on the laws of the United Kingdom, which include protections for religious freedom and freedom of speech, as well as the underlying constitutional
     principle of democracy
     o     Implied Bill is name is given to a series of cases where a number of provincial laws that interfered with fundamental freedoms were held to be ultra vires.
     o     There are fundamental civil freedoms in a parliamentary democracy and begin to read in restrictions. Think along the lines of Iddington’s dissent in Quong
           Wing: there are limits. These are implied rather than explicit protection in Charter. (Given renewed life in the Secession Reference)
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                                                                                               Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009        p. 67

     o      Note: Do cases suggest that only federal govt is authorized to enact laws that interfere with fundamental freedoms or are both levels prevented from
            this? The latter would be an “implied bill of rights” b/c it would suggest that the Constitution itself implies certain protections of freedom
    These cases would not be relied on today – Charter gives very strong protection of the rights that were being defended here – this was how they dealt with it
     before the Charter came into existence
    Bill of Rights simply a federal statute, passed by simple majority in the House of Commons – scope of applicability limited to federal law – not a constitutional
     document
     o      However, this type of statute (including provincial human rights legislation, e.g. Charter of human rights and freedoms in Quebec) has been labelled by the
            court as quasi-constitutional (question in class – what elevates it to that status? Was it legislator’s intent? Substance of the statute (this idea is supported
            by the content, e.g. notwithstanding clause within the Bill, as well as by the normative statements made in the statute)?
                      Why? Because of the significance and the normative importance of the concepts and principles which they enshrine
                      Issue: How does one statute interact with another statute?
                                  Which one of two conflicting statutes takes precedence? Sometimes courts would interpret statutes in a way that would be
                                   consistent with the Bill of Rights. Other times courts would give paramountcy to the Bill of Rights, giving it quasi-constitutional status
                                  There are some rights enshrined in the Bill of Rights that are not enshrined in the Charter, for example of the right “to enjoyment of
                                   property” – these rights can potentially conflict with the redistributive qualities of the Canadian welfare state
                                  Fair hearing – not limited to the criminal context in the Bill of Rights – how would this have affected the decision in Imperial
                                   Tobacco?
                                  There are some parallels with the Quebec Charter, which is also constitutional in substance, but only has the status of a provincial
                                   statute
                                        Compare with USA – state constitutions
    During the era of the 60s and 70s, SCC was fairly formalistic and narrow and conservative in its approach to interpreting the open-ended protections set out in
     the Bill of Rights, such that it contributed to the feeling that there was the need for a Charter that articulated rights in clearer language and that had
     constitutional weight – Bill of Rights did not establish a new rights-based era
                 Exception: protection against discrimination in a statute in Dry Bones case – see below.

Reference Re Alberta Statutes, [1938] SCR 100. (CBp.657)
Jurisdiction       Alberta
Facts              The newly-elected Social Credit government, under fire from the Alberta press, introduced the Publication of Accurate News and Information
                   Bill, which required newspapers to publish statements of government propaganda. When the Lieutenant Governor refused to assent to the Bill
                   (as well as two economic policy bills), the issue was referred to the SCC.
Issues             Was the Bill ultra vires the province?
Holding            Yes.
Reasoning          Cannon J held that the bill was in pith and substance criminal law, because it dealt with public wrongs, not private ones, and concerned matters
                   that were traditionally dealt with under criminal law (“seditious libel”). Cannon J then linked the preamble of CA1867 to democracy, which he
                   linked to freedom of speech. However, he went on to say that Parliament could curtail freedom of the press “if deemed expedient and in the
                   public interest.” Idea of freedom of the press as essential to public debate and the spread of information regarding government policy and
                   matters of public concern.
                   Duff CJC made a stronger stand in favour of free speech (derived from the preamble), although he too admitted that it could be limited in
                   certain ways. (He said that Parliament had the authority to legislate for the “protection” of free speech.) The provinces certainly could not
                   interfere. Similar constitution to UK. Free speech the “breath of life” of democratic societies.
Ratio              Freedom of discussion is essential to enlighten public opinion in a democratic State. It’s a similar principle to that of the UK. No province has
                   the power to reduce the political rights of its citizens which are enjoyed by the citizens of other provinces of Canada.
Comments                 Implied rights can still maybe be relied on where there are gaps in the Charter?
                         Look for normative statements – freedom of expression as basic or vital to the functioning of a parliamentary democracy.
                         Whereas some jurists may have had some discomfort with arguments on other than federalism grounds (which was what everyone was
                          used to), implied rights arguments were interesting because they could impose limits on both levels of government, rather than just one
                          at a time.

    Saumur and Switzman: struggle between Jehovah’s witnesses and Qc govt (background also for Roncarelli)
    Comment from Rand J in Boucher v. The King: “freedom of thought and speech are of the essence of our life”

Saumur v. City of Quebec, [1953] 2 SCR 299. (CBp.662)
Jurisdiction        Quebec
Facts               Saumur, a Jehovah’s Witness, was convicted for distributing pamphlets in the streets under Quebec City’s anti-pamphleting by-law.
Issues              Was the by-law ultra vires?
Holding             Yes. (5-4 split, a tangle of seven different judgements)
Ratio               Rand J:
                         Denied that the by-law was in pith and substance concerned with the regulation of streets (as the city claimed). He held that freedom of
                          religion originated as a pre-legal right. He also drew support from the protection of denominational schools in CA 1867, and from the
                          preamble. He held that, if provincial legislation would need to encroach on rights incidentally, it should have to be specific.
                         “From 1760 to the present moment religious freedom has, in our legal system, been recognized as a principle of fundamental character.”
                          While civil rights normally arise from positive law, some original freedoms which are preconditions for legal order.
                         Legislation in relation to religion and its profession are not local, there are nationwide interests.
                         It is argued that by-law relates to administration of streets not religion or free speech. But language here is too vague, no limits.
                         “Conceding, as in the Alberta Reference, that aspects of religion and free speech may be affected by provincial regulation, it must
                          nevertheless be sufficiently definite and precise to indicate its subject matter.” Can enact if matter is in relation to which the legislature
                          has been empowered to make laws.

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                                                                                              Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 68

                       Rinfret CJC (dissenting):
                            Took a formalist approach: He took the by-law at face value, accepting that it had nothing to do with religion. He nevertheless objected to
                             the content of the pamphlet, and quotes some of the more spectacular passages in his judgment in order to discredit the Jehovah’s
                             Witnesses.
                            Also under provincial jurisdiction to make laws relative to (1) municipal institutions under s. 92(8), (2) property and civil rights under s.
                             92(13) and (3) all matters of a local and private nature under s. 92(16).
                            Would be absurd to allow Federal to adopt laws pertaining to these areas (see Hodge v. Queen)
                            Have to look at P&S and in the end it is about regulating streets. Cannot read in purpose of limiting actions of Witnesses. So, fully within
                             purview of s. 92.
                            Actual power of control over streets is specifically attributed to Province and must take precedent over supposed power of Federal
                             Parliament to legislate on matters of worship.
                            In response to content of pamphlets: “What Court would condemn a municipal council for preventing the circulation of such statements?”
Ratio                  Provinces can regulate religious practice under s. 92(13) – property and civil rights.
Comments                    Rand J was influenced by U.S. legal realism, and was much more comfortable interpreting laws in terms of their policy meaning. See the
                             political beliefs of the judge. See NS licensing of theatres.
                            Note: by-law challenge more neutral than freedom of religion challenge – by-law challenge did not even need to address the freedom of
                             religion issue, but rather could be done entirely on more abstract terms. Here, the issue of untrammelled discretion and the impossibility
                             to hold legislation of unimpeded scope intra vires are very convincing arguments that do not go into religious freedom.

Switzman v. Elbling, [1957] SCR 285. (CBp.668)
Jurisdiction     Quebec
Facts            Quebec’s infamous “padlock law” made it illegal to use any house to propagate communism. Switzman used his house to propagate communism,
                 and his landlord tried to evict him.
Issues           Was the “padlock law” ultra vires?
Holding          (8-1) Yes  Switzman.
Reasoning        Rand J:
                      Relied on the preamble, which he said implied freedom of speech. He denied that the law could be narrowly defined to fall under s.92(13) or
                       s.92(16). He did however apparently leave open the possibility that Parliament could limit free speech using the criminal law power (in crimes
                       like sedition).
                      In response to argument that province has absolute power over property in the province “I am unable to agree that in our federal
                       organization power absolute in such a way resides in either legislature.” Always have to look at P&S and whether the legislation is colourable.
                      The issue is whether the object of preventing the propagation of communism is a matter in relation to which, under s. 92, the Province may
                       exclusively make laws.
                      s. 92(13) Civil Rights: An ordinary civil restriction of libel and slander? No, the ban is directed against the civil liberty of the actor. There is
                       nothing of civil rights, it is simply to curtail the freedoms to think a certain way.
                      s. 92(16) Local and Private Nature: A special need in Qc in contract to general regulation by Parliament? CA1867 preamble state that
                       constitution similar to that of UK and therefore is a parliamentary democracy with all the social protections this entails. In order to have this
                       kind of democracy, you need the unobstructed access to and diffusion of ideas.

                   Abbott J:
                      Appears to have gone even further, arguing on the basis of the preamble that neither the provinces nor Parliament could “abrogate” the right
                       of discussion and debate. (Although he did acknowledge the criminal law power and POGG.) This is the first suggestion that the federal
                       government could also be bound by the implied bill of rights. (It’s interesting to compare this to Idington’s dissent in Quong Wing.)

                   Taschereau J (dissenting):
                       Arguing that this law could not be considered a criminal law, because it did not take a criminal law form (prohibition and penalty). He felt that
                        it had more to do with suppressing the conditions that led to crime. While acknowledging the importance of freedom of speech, he argued
                        that communism was a threat to that freedom, and so on.
                       Judicial notice: Canadians violated allegiance to state and revealed official secrets in name of Communism. The suppression of spreading
                        these doctrines is important.
                       “I remain convinced that the domain of criminal law, exclusively of federal competency, has not been encroached upon by the impugned
                        legislation and that the latter merely establishes civil sanctions for the prevention of crime and the security of the country.”
Ratio
Comments                It’s interesting to compare Taschereau’s condemnation of communism to later controversies around hate speech. How is the language of
                         rights prominent in pre-charter cases? CRIMINAL LAW?

    In the 3 key cases, note how passages refer to normative values
Reference Re Alberta Statutes (CB 659): Cannon J says that freedom of discussion is essential
    Duff CJC uses similar reasoning (freedom of expression transcends political sphere)

Saumur (CB 662): By-law regulating distribution of pamphlets on streets of Mtl really about controlling the Jehovah’s Witnesses. Provision was about prior restraint.
Censorship to undermine the rights of the minority.
    Rand J: This is problematic
    Dissent: P&S is about regulating the streets. See no problem with by-law.

Switzman (CB 668): Similar themes emerge where if anyone is going to restrict it should be the federal or no one… or valid provincial jurisdiction (according to
Taschereau’s dissent)

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                                                                                              Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 69

    Abbott J considers right to discuss an essential element of a parliamentary democracy such that there is a special implied bill of rights for provincial and federal
     govt
    Rand J says no govt has absolute power

    Implied Bill of Rights begin to question the wisdom of policy (moving from process to substance)

AG Canada v. Dupond, [1978] 2 SCR 770. (CBp.672)
Jurisdiction    Quebec
Facts           Dupond challenged a Montreal municipal by-law which imposed a 30-day ban on any demonstrations or public gatherings. By-law challenged as an
                invasion of s. 91(27) the federal criminal law power and as an infringement of freedom of speech, assembly and association, freedom of religion.
Issues          Was the by-law contrary to the implied bill of rights (or the the Canadian Bill of Rights)?
Holding         No.
Ratio           Beetz J: (responding to second challenge)
                     Accepted the implied bill of rights, but held that marching was not included. He held that “*d+emonstrations are not a form of speech but of
                      collective action. They are of the nature of a display of force rather than an appeal to reason…”
                     He distinguished freedom of speech, freedom of association, freedom of assembly etc. from the right to hold a demonstration on public
                      ground, which was not part of British law (and therefore not covered by the preamble). (The Canadian Bill of Rights only applied to federal
                      laws.)
                     Difficult to come to conclusion on submission couched in general terms. What distinguishes a right from a freedom? A fundamental freedom
                      from a non-fundamental freedom?
                     “Modern parlance has fostered loose language upon lawyers”
                      o     None of the freedoms referred to are so enshrined in Constitution as to be absolutely protected
                      o     None of the freedoms comes within exclusive jurisdiction of federal or provincial govt
                      o     Freedom of speech has nothing to do with freedom of demonstration (speech v. collective action)
                      o     Right to hold public meetings in a park is unknown to English law
                      o     Cdn Bill of Rights does not apply to provincial or municipal legislation
Comments             Hogg adds that the UK did not have a long tradition of protecting civil liberties and human rights. What it had was a tradition of parliamentary
                      sovereignty and parliamentary rights.
                     Beetz known for his formalist approach. His exacting questions about what are rights protected in the implied bill or rights may have
                      precipitated the Charter.
                Sheppard
                     Beetz J concerned about reading in. Legal formalist with a clear mind. Concerned about fuzziness of implied rights. [curiously, now that we
                      have the Charter, we have an easier time reading in more implied rights although this means that we shouldn’t have to+

    In the OPSEU case (1987), Beetz J again referred to the implied bill of rights, and said that it remains in effect even though we now have the Charter. (Of course,
     he said it didn’t apply in that case either.)
    The Quebec Secession Reference of course implied various rights and principles too. Judges may be implying new rights (even after 1982) in order to give
     themselves more discretion.
    It’s interesting to compare these cases with contemporary Australia, where there is still no explicit bill of rights, but the High Court has developed an implied bill
     of rights (see p. 675).

The Canadian Bill of Rights (1960) (CB 675)
   The Canadian Bill of Rights is still in effect, but it has largely been eclipsed by the Charter.
   2 external influences: international declarations about rights (including Universal Declaration of Human Rights) and the influence of the American constitutional
    experience (American Bill of Rights, Brown v. Board of Education, Cold War)
   2 internal influences: fears about regulation by legislatures which had expanded during the war (dislike regulatory state), history of denials of civil liberties to
    Japanese Canadians and the conduct of an inquiry into espionage in 1946.
    o     It included some rights that are absent from the Charter (e.g., “the enjoyment of property”).
    o     It was enacted in 1960, a federal statute, and only applies to federal laws and government action.
                Paramountcy could not be used to apply it to provincial laws.
    o     The SCC was conservative and formalistic throughout the 1960s and 1970s, and the Canadian Bill of Rights was interpreted narrowly.
   Human rights statutes were enacted in most (all?) provinces during this period too.
                In 1976 Quebec enacted its Charter.
                The SCC has said that these should have “quasi-constitutional” status.
    o     This happened at the same time as the US rights revolution under the Warren court.

R. v. Drybones (CB 677)
     The 1970 Drybones case was the only one where the SCC used the Canadian Bill of Rights’s equality provisions to make part of another federal statute
      inoperable.
      o    The Indian Act make it an offence for any Indian to be intoxicated off a reserve.
      o    While there were also criminal laws making it an offence for anyone (Indian or not) to be intoxicated in a public place, the penalties for Indians being
           intoxicated off a reserve (in a public place or not) were much harsher.
      o    Court decided that the Bill of Rights protections trump the Indian Act provisions (rendering them inoperable)

    In subsequent cases, the SCC retreated completely, adopting a formalist, narrow approach.




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                                                                                              Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 70

AG Canada v. Lavell (CB 679)
   The 1974 Lavell case challenged the section of the Indian Act which said that an Indian woman marrying a non-Indian man would lose her Indian status, while an
    Indian man who married a non-Indian woman would not. (It enshrined a patrilineal definition of Indian-ness.)
    o     In a 4-3 split, the SCC rejected the challenge. Ritchie J relied on a classical Diceyan formulation of the rule of law to interpret “equality before the law.”
          (argument: all Indian women receive the same [discriminatory] treatment, so there is no inequality before the law)
    o     In subsequent litigation, Aboriginal women went through international human rights channels. The Sandra Lovelace case from New Brunswick succeeded
          at the UNHRC.
               Unfortunately, no enforcement mechanisms for international law
               However, the embarrassment to the Canadian government resulted in changes
    o     This is the background of the wording of s.15 of the Charter, where it talks about equality “before and under the law.”
               “before and under the law” includes the administration of the law, but also speaks to a substantive assessment of the fairness of the law itself
   Following these Indian Act cases, the SCC was willing to uphold discriminatory legislation as long as there was a “valid federal objective” (which didn’t even need
    to be specified).

Bliss v. AG Canada (CB 680)
     The 1979 Bliss case challenged the long qualifying period for unemployment insurance benefits for women whose employment was interrupted by pregnancy.
      o    This was seen as a way of ensuring that pregnant women didn’t “abuse the system”
      o    In Bliss’s case, she was fired from her job because she was pregnant—she actually would have wanted to keep working. She was denied unemployment
           insurance, not for being pregnant, but just for being unemployed when she was available for work, without a job.
      o    The SCC refused the challenge unanimously. Ritchie J wrote that the unemployment insurance rues did not discriminate on the basis of gender, but only on
           the basis of being pregnant or not. (“Any inequality between the sexes in this area is not created by legislation, but by nature.”)
      o    Ritchie J also distinguished Drybones by saying that unemployment insurance was about benefits, not penalties, a privilege not a right.
                This is the background of the wording of s.15 of the Charter, where it talks about “the equal protection and equal benefit of the law.”
                Problems continue to exist for disability and the law – the reasoning of “it’s not the government’s fault that disabled people cannot benefit equally
                 from government programs”
                Idea of s. 15 is that if the government offers benefits to its citizens, it has to do so in a way that is equal to everyone (non-discriminatory). CAN OF
                 WORMS. What are the limits? Government benefits cases, even in post-Charter era, have been reluctant to be too hard on the government because
                 they don’t want the government to stop providing benefits altogether.
                       E.g. Aldridge case – deaf interpreters must be provided for hearing-impaired patients in hospitals, because they cannot equally benefit from the
                        healthcare services.
      o    The SCC explicitly overruled Bliss in the Brooks case in the 1980s.
     CONCLUSION: even though the Bill of Rights was an important piece of legislation, it did not shift the Canadian perspective to a rights-based approach – more
      was needed...

If the govt provides benefits, it must do so equally. But if no benefit is provided, courts are reluctant to say govt is discriminating against a group. Worried that if
they push too hard, govts won’t provide any benefits

Today, Charter has more or less supplanted the CBofR. But CBorR still in force. Some of its terms still occasionally discussed, especially two sections that are wider
than the corresponding sections of the Charter (property and fair hearing for determination of rights and obligations)

Sheppard: Why not make the Qc Charter a constitutional document?
Currently it is less protective of local autonomy and lawyers often take recourse to both the Qc and Cdn Charter

In the end, the CBofR didn’t shift mindframes like the Charter did. Still the feeling that it was inadequate.



Part VI: The Canadian Charter of Rights and Freedoms
*Rod MacDonald wonders if Charter isn’t just a mirage. Passing the Charter didn’t change the reality of rights in Cda. Just made us feel as though we are protected
against everything. Divergence between conceptions about the Charter and the actual purpose it serves]

    The Charter was part of Trudeau’s “patriation package,” which also included a domestic amending formula.
    This process must be understood against the background of Quebec nationalism. Trudeau was trying to contain Quebec nationalism and “repackage” Canada.
    Trudeau was going to go ahead without the provinces’ approval, but in the Patriation Reference, the SCC said that a constitutional convention required the
     provinces’ approval.
     o     At the last minute, nine provinces met without Quebec and excluded Quebec from the process
     o     Quebec was pissed off and made massive use of notwithstanding clauses.
    Post-WWII groundswell of support for human rights, government initiatives to protect individual rights
    Charter a result of these political changes – in sync with general international movement (e.g. Universal Declaration of Human Rights, Covenants on Social and
     Economic, Civic and Political rights)
     o     References to these documents made in Canadian litigation
     o     Conventions on End to Racial Discrimination, Rights of Women, Rights of the Child, Disability Rights, Aboriginal Rights
     o     Contrast to ideas of “fundamental civil liberties” (e.g. freedom of expression, etc.)
    Domestic law reforms – legislative changes (anti-discrimination) – e.g. Quebec Charter
    Social movements were important forces in the emergence of the Charter (e.g. women’s movement, disability rights advocacy)
     o     Notwithstanding clause cannot be used in gender-based discrimination issues – result of work of women’s movement
    Model of USA Civil Rights movement – movement away from Britishness

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                                                                                              Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 71

    Idea that heterogeneity resulting from increased immigration created the need for articulated values – rather than assuming that normative values were cross-
     cultural
     o     Links to the Charter as a nation-building exercise – defining “Canadian” values – not assuming that they are traditional “British” values
     o     Political concern (PQ in Quebec) – about sovereignty/Quebec separatism – Charter could articulate national values (potentially problematic because some
           of the provinces started to get squeamish about having to comply with centralized standards)
     o     Charter’s protections of minority language rights and education – result of this worry
    Charter as a nation-building exercise
         o     As Cdn society becomes more heterogeneous, need written text to outline rights and provide certainty and predictability. Can no longer operate on
               implied cultural reasoning.
         o     Seen as a unifying document
         o     Statement of national values (to counter Qc nationalism)
         o     [problem that some provinces upset that their laws now had to comply with a national standard]
         o     Protection for minority language rights, education rights → Cda as a bilingual state

Minister of Justice, Pierre Trudeau, “A Canadian Charter of Human Rights”
    Traced origins and evolution of modern conceptions of human rights (CB 683)
    After American Declaration of Independence and US Bill of Rights, and French Declaration of the Rights of Man and the Citizen, there was the idea that men
     shall not be deprived of liberty of property except in accordance with the law. Men should be ruled by laws, not men. Govt has no more power than the
     people have agreed to delegate to it. Events of WWII were proof of need to safeguard the rights of individuals.

     So, after 1945…

    1960, Parliament enacted CBofR
    Several provinces introduced human rights legislation
    But to date (in 1968) there are no constitutional protections.
    A constitutional bill of rights in Canada would guarantee the fundamental freedoms of the individual from interference, whether federal or provincial.

Cairns, Charter Versus Federalism: The Dilemma of Constitutional Reform, 1992 (CB 686)

     1. Erosion of Britishness:
    Repudiation of the principle and practice of parliamentary supremacy by the adoption of the Charter
    Idea that new immigrants fearful of parliamentary majoritarianism, and that they prefer judicially entrenched rights. Also, that cannot leave rights to what is
     considered “natural” because new immigrants not socialized in British sociocultural norms. Visible written code essential.
    Abolition of appeal process to PC also eroded parliamentary supremacy.
    The capacity of parliamentary govt to sustain a sense of Cdn distinctiveness in NA was linked to status of UK as a great power. As that connection lost
     instrumental value postwar, support for constitutional theory of parliamentary democracy was weakened.
    The weakened appreciation for this symbol of Cdn constitutional id created a gap in the constitutional symbolism of an almost completely autonomous nation.
     The Charter emerged to fill that gap, and brought entrenched rights, judicial supremacy, and an enhanced role for the written part of the constitution, all of
     which distanced Cda from UK origins.

     2. Intl Sources of Politicized Ethnicity:
    The rhetoric and ideology of emerging post-imperial international order reinforced ethnic and racial identities throughout the West and put on the defensive
     inequalities based on ascriptive criteria. Social categories based on language, race, sex, religion, ethnicity, lifestyle, generational, etc. become more assertive of
     their rights.
    Diffusion of new normative order facilitated by easy mobility of persons and ideas across national borders.

     3. Intl Rights Dimension
    The direct and indirect proselytizing on behalf of rights by the UN challenged regimes practising federalism and employing parliamentary supremacy to modify
     their constitutional arrangements.




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                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009   p. 72

Russell, “The Political Purposes of the Canadian Charter of Rights and Freedoms” (CB 689)

Purposes:
     1. National unity (focus of excerpt)
     2. Protection of rights

    Needed proposal for political unity to counter nationalism in Qc. “If constitutional reform was to be seriously pursued, it was essential that Qc’s demands be
     countered by proposals designed to have a unifying effect on Cda”
    Trudeau’s got focused on constitutional expression to fundamental rights, and the rationale was the perceived value of such a measure as a popular and
     unifying counter to decentralizing provincial demands in the Cdn constitutional debate.

Prime stimulus:
    Intl concern with human rights (UN Declaration)
    Domestic shame over tx of Japanse, and denial of legal rights in investigation of a spy ring in 1946
    Provincial history of persecution of Jehovah’s witnesses
    Need for a written code to promote national unity in context of new heterogeneous population

Trudeau really wanted a Charter:
    Connection between constitutional bill of rights and the federal powers of reservation and disallowance underlines a constitutional charter’s capacity for
     imposing national standards on the provinces.
    After 1967, intl conventions increased Cdn interest in codification of rights.
    Aside from political and strategic advances, may have had an aesthetic attraction for Trudeau (constitutional rationality, manifestation of French rationalism)
    Trudeau ultimately believed in Charter as a nation-building tool. Willing to risk dividing the country in order that it might become more united.

    Trudeau insisted that Charter must be more than patriation with an amending formula. Insisted on coupling constitutional charter with patriation.

Weinrib, “Of Diligence and Dice” (CB 693)

          Story of Charter begins in 1960s, when just a discussion of patriation with an amending formula – about removing last colonial vestiges of exclusive power
           of British Parliament to amend the BNA Act
          Report of the Royal Commission on Bilingualism and Biculturalism of 1967 broadened agenda beyond patriation with an amending formula to include
           language rights.
          Attempt in 1971 (Victoria Charter) failed. Momentum lapsed until 1976 when final push for 1982 amendments began.
          1978, federal govt promulgated Bill C-60, Constitutional Amendment Bill, which expanded on Victoria Charter’s fundamental freedoms. Bill C-60 expanded
           rights protected, but weakened means of protection. Reference to continuity might have sustained a retrospective approach.




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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 73

Weinrib, “Canada’s Charter of Rights: Paradigm Lost?” (CB 695)

        With adoption of Charter, Cda joined family of nations operating under postwar regime of rights-protection.
        Challenge was to transform federal parliamentary democracy into modern, rights-protecting polity. Cda did not create special constitutional court, instead
         it vested the new judicial review function in the existing courts, and marked out an innovative constitutional role for the established legislatures.
        Charter contains complex array of institutional directives
        Took concerns about judicial review very seriously
*Most important elements of Charter’s structure are to be found in the two companion clauses
        1) s. 1 guarantee and limitation clause: postwar model of rights-protecting instruments, requires state to formulate, as a law, any exercise of power that
         limits guaranteed rights
        2) s. 33 notwithstanding clause: gives legislatures the last word
        Limitation and notwithstanding clauses mark culmination of federal-provincial negotiations seeking agreement on a constitutional text for inclusion by
         amendment into written constitution.
        Trudeau’s dual commitment to liberal democracy under rule of law, and national citizenship based on rights
        At the start, only ON and NB supported initiative. Resistance melded provincial rights agenda with desire to preserve legislative supremacy.
        Drafting process reflects this: every draft contained express limitation formulations, reflecting concern about power of judicial review.
        1980-81, a Joint Committee of the Senate and House of Commons gave voice to strong public support for Charter
        Opposition to “Mack Truck” model, where expansive interpretation of limitations on rights gave rise to image of huge truck that could be driven at will
         through the Charter’s guarantees.
        Final version of limitation clause: clear statement of institutional protection, such that any limitation on a right must be not only reasonable and prescribed
         by law, but must also be shown to be demonstrably justified
        Notwithstanding clause: materialized as response to Joint Committee proceedings. New limitation provision made limits on rights the exception rather
         than the rule. Ministers create this mechanism for rights they believed should not rest for final determination in the courts (fundamental freedoms, legal
         rights, equality rights).
        Left to judicial determination under the limitation provision, without recourse to notwithstanding clause, were democratic rights, mobility rights, and
         language rights.

Without notwithstanding clause, Charter would have 3 possible outcomes:
1) enjoyment of rights as guaranteed
2) legally prescribed limits upon rights as justified by govt in court of law
3) constitutional amendment
With notwithstanding clause, add a fourth possibility
4) Parliament or legislature could re-assert primacy over specified rights


Gold, “The Mask of Objectivity: Politics and Rhetoric in The Supreme Court of Canada” (CB 699)

          SCC ruled that federal government needed substantial provincial consent to pass Charter initiative
          Gang of 8: Context of QC and 7 other provinces opposing proposed changes (only support from ON and NB)
          Common front did not last: deep mistrust of Qc and its real motives behind opposition to Charter (there was even a secret meeting of the 7 provinces that
           excluded Qc)
          Cdns supported idea of patriation and favoured an entrenched Charter. Provincial govts afraid to pay political cost of acting as obstructionists to a plan
           supported by the majority.
          Meanwhile, Qc was not opposed to rights protection. Charter had merely become a battle ground for division of powers between federal and Qc.


The Basic Framework of the Charter (Class notes 09-02-10)
   Charter cases proceed along two lines of inquiry:
    o     Is there a violation of one of the substantive rights/freedoms set out in the Charter?
               Motion to state the constitutional questions (presented by Court to the parties, consensus)
    o     If there is a violation, is it justified?
               Section 1 – “reasonable limits” “demonstrably justified in a free and democratic society” – critically important section that can arise in every case
               The burden of proof shifts at this stage – from claimant to defendant
   Some people have said that courts have freer rein to interpret substantive rights sections due to Section 1 – broad interpretation of the right, but Court can
    impose limits within the Constitutional framework
               They are willing to give a broad interpretation because there are explicit provisions for limiting rights if needed
   Courts have taken different approaches with different sections of the Charter – sometimes, the limits are internal to the section (“unreasonable search and
    seizure” “cruel and unusual punishment”)
   CONTEXTUAL APPROACH (outlined by Wilson J. in Lavallee) – the contemporary realities, relying on extrinsic evidence (social sciences, expert testimony, etc)
    must be taken into account when interpreting law

The Merits of Entrenchment and the Legitimacy of Judicial Review
   (CB 741-748) Interpretive tools: text, drafter’s intent, general normative values, legislative debates, building significant body of Cdn jurisprudence, intl human
    rights norms, comparative jurisprudence (less important now that we have Cdn case law), social science and extrinsic evidence

Binnie v. Scalia debate:
           Broad interpretation may go beyond the text and read in ideas that were never intended by the elected legislature.

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                                                                                           Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 74

    Critiques of Judicial Review:
     o     Anti-democratic (countered by ideas of checks & balances, “dialogue”)
     o     Limited to government (public sphere only)
     o     Homogeneity of judiciary, elite standing (vis-a-vis the more heterogeneous Canadian public)
     o     Access to justice: costs associated with litigation, opportunity cost regarding other political strategies (e.g. lobbying) – structurally in favour of
           powerful, majority groups at the expense of disadvantaged groups
     o     Legalization of politics, politicization of law

     The left-wing critique of the Charter argues:
      o     Judges are not representative: they are elite lawyers with strong ties to business.
      o     Access to justice under the Charter is expensive.
      o     Historically, legislatures have been more progressive than courts.
      o     The Charter enshrines only negative rights, not positive rights.
      o     The Charter enshrines a classical liberal vision which sees the state as the source of infringement of rights, ignoring private infringements on rights.
      o     The Charter turns political issues into legal ones.
     The liberal response follows:
      o     The insulation of judges from politics is a good thing, allowing them to make principled and reasoned decisions.
      o     There are flaws in the democratic process, and the Charter reinforces the representation of underrepresented groups.
                 Taking this further, the Charter protects minorities from the tyranny of majorities.
      o     Courts don’t tell legislatures what to do; courts and legislatures have a “dialogue.”
      o     The Charter originated in the choice of democratically elected legislatures.
      o     Charter cases have a public aspect. They frame abstract issues in terms of human stories, and this may actually be more conducive to broad public debate
            than the legislative process.
      o     The Charter forces the government to deal with important issues which may be politically taboo.
In court’s defense:
     Channel’s theory through a story. Brings theory down from level of statistics to reality (Lavallee)
     Legislature makes use of extrinsic evidence just as much as the Court
     Law is an interpretive exercise. Charter requires someone to make decisions. While hard for judges to keep their ideas out of it, how else are they supposed to
      decide those cases?
     Court is an opportunity for dialogue. It’s not just the judge making a decision.
        o     In a study of 65 Charter cases, for 44 of them, the issue did not go away and the legislature responded to the issue and amended the legislation (we
              could also use s. 33 but we’re more reluctant to do this)
        o     [counter-critique: it’s not dialogue when the court has more power+
     A check against the legislative majority
        o     Linked to the idea that judges make principled decisions. They have to provide reasons. They must show the steps of their arguments so that they may
              be debated
     Legislative branch not 100% either (bit of a throw-away)

Need review when the legislature is not hearing the voices of minorities or following due process. Courts can reinforce democracy in this way.




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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009   p. 75

W.A. Bogart, “Courts and Country” (1994) (CBp.701)
2 models of democracy at stake:
First model recognizes power of ballot, curbed by independent and tenured judges
Second model places confidence in those who can claim the power of the ballot, and not in the hands of unaccountable or elitist judges



The Case for the Charter (entrenched bill of rights):

Benefits
1. Allows individuals (particularly minority interests) to seek vindication in an open public process (as opposed to legislators who may be unresponsive, or more
concerned about the majority vote)
2. Ability to unite Cdns so that “other” identities can simultaneously gain strength → “No longer will the female from NB and the female from BC speak to each other
through tensions of regionalism, they will be united by their gender”

Conditions of implementation
1. Must not review substantive decisions made by elected officials (only to protect democracy’s functioning)
2. Notwithstanding clause which allows judicial decisions to be overridden by competent legislative body

The Case against the Charter (CB 703):

1. Colourful history, born out of device by Trudeau to boost centralizing tendencies to enhance the stakes if Qc were to separate.
2. Strong role of judges undermines democracy whereby Charter is a contradiction in liberal ideology

Why the leeriness?
3 main points argue that best chance for justice will come of the legislature
1. Assistance has more often than not come out of legislative action, advancement from popular support of political will. (and conversely, courts have history of
being uncaring, or even actively hostile)
2. For democracy to thrive, important decisions must be made by elected representatives.
3. Cost of court will mean that interpretation of the Charter will become slanted towards the rich and the organized




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                                                                                                Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 76

Andrew Petter, “Immaculate Deception: The Charter’s Hidden Agenda” (1987) (CBp.704)
While sold as a people’s package, the Charter is a regressive instrument more likely to undermine than to advance interests of those disadvantaged.

1. Nature of Charter Rights
Charter is a 19th century liberal document set loose on a 20th century welfare state. Charter founded on belief that main enemies of freedom are not wealth nor
concentrations of private power, but the state. Thus, little reference to positive economic or social entitlements. Rights are predominantly negative, aimed at
protecting from state interference.

Negative rights reflect “systematic bias” in favour of privileged class. These people view fundamental rights as relating to economic and social status, not food,
housing, or jobs.
Existing distributions of wealth are not subject to Charter challenge, they are in fact the foundation upon which Charter rights are conferred, and against which state
action is meant to be judged. Seen as private, not created by the State.

The negative nature of Charter rights and selective view of the state action remove from Charter scrutiny the unequal distribution between private parties, and
restrain the arm of the state best equipped to redress fundamental inequalities (the democratic arm).

Historic victories for disadvantaged took place in democratic arena, through political action aimed at displacing the CML vision of unbridled individual autonomy.
Charter threatens this, and will weaken impetus for further legislative reform by diverting resources to the judicial arena. $, time, and energy devoted to Charter
claims, could instead be devoted to lobbying.

Charter based on same hostility to legislative action as the CML.

Very notion of looking to the courts to improve legislation is somewhat perverse. Most legislation, after all, was enacted to counteract the laissez-faire individualism
of court-made, common law.

2. Nature of the Judicial System
System charged with interpretation and enforcement, but faces two major challenges: cost of access, and composition of judiciary itself.

$: not only does cost create an institutional barrier, but as certain groups are excluded, there is a kind of self-selection of rights that are argued. Non criminal Charter
cases will represent the interests of a certain group, and the interpretation of rights will respond to, and, over time, reflect those interests.

Ex. Right to freedom of expression. If litigation is disproportionately brought by powerful economic interests, jurisprudence will come to reflect business concerns.

Out of touch judiciary: nothing to suggest they possess the experience, training, or disposition to understand the social impact of claims made to them under the
Charter.

Property rights, then, are the core political values underlying the common law. This will guide and constrain judicial decision-making in Charter cases.

Charter cases are not about interest balancing, which courts view as the preserve of politics, but of policing the boundary between the “natural” zone of individual
autonomy, and “unnatural” activities of the state. Judges’ bias towards liberty, and freedom from interference of state, means that narrow interpretation is seen as
bad, and broad as good. But, forgetting that the liberty of many Cdns is better protected by regulatory and redistributive policies of the state than by the market.

    Critique that Charter only applies in the public sphere, whereas so many rights violations occur in the private sphere, whether in the employment context or
     elsewhere

Patrick Monahan, “Politics and the Constitution” (1987) (CBp.708)

What values should guide Cdn judges as they give meaning to open-ended provision?

Monahan makes distinction between substantive outcomes of the political process, and the fairness of the process itself. Point of Charter is not to test legislation
against an independent theory of fairness. Focus of Charter adjudication should be more limited.

Charter is directed towards 2 values:
1. Broad interpretation of democracy (broadening of opportunities, reducing barriers, etc)
2. Communitarianism whereby only through political communities can individuals define and develop their own individuality. So, no contradiction between individual
and community.

Charter ought to serve limited set of purposes. Judicial review should be conducted in the name of democracy (procedural), rather than as a means of guaranteeing
‘right answers’ from the political process (substantive)

All aspects of life should be subject to the revisionary potential of politics

2 general principles for framework for judicial review:
1. Right of equal access to, and participation in the political process (not just a negative right, focus on the equal access part)
2. Plasticity, judicial review should attempt to maximize openness and possibility of revision in social life




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                                                                                              Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 77

Lorraine Weinrib, “ ‘Limitations on Rights’ in a Constitutional Democracy” (1996) (CBp.711)
Supremacy of Rights model for understanding the Charter and the role of the courts: foundation is that there are certain irreducible values to which all other
lawmaking (whether legislative or judicial) must conform.

This model welcomes judicial protection of individual rights as a correction to majoritarian politics
Not antagonistic to majority rule, but recognizes that majority politics can lapse in its commitments

Sometimes, political forum cannot foresee how a policy will impact a person with different beliefs or circumstances.
Other times, cannot foresee effects in new social or economic circumstances
There is no effective mechanism to alert legislature to such consequences or to compel it, once informed, to act.

Alternatively, dynamics of political forum may not be receptive to the values embodied in rights. In rough and tumble of policy formation, those holding predominant
ground find their interests more firmly secured.

Legal supremacy of rights model subjects representative branch of govt to the watchful eye of the judiciary
Within this model, courts are important law creators. Tap a deeper, long-term political voice.
It is the affirmed task of the judiciary to elucidate the principle coherence of a legal system committed to the values basic to dignified human life. Within this model,
the rights-declaring text is but an imperfect crystallization of yet more abstract values. The rights written down are not absolute and must be interpreted accordingly.

Limits on rights are then not seen as the result of subordination to the majority interest (political majoritarianism), but rather rights only cede to deeper principles of
which they are but emanations (legal supremacy)

In addition to enumerate rights, the right holder enjoys a deeper guarantee against all but a principled limit upon that right. This two-level guarantee imposes a
distinctive task on the courts: assure the enjoyment of the named right or, failing that, to forward the interests for which rights stand. No call to defer to
majoritarianism.

Alan Hutchinson, “Waiting for Coraf: A Critique of Law and Rights” (1995) (CBp.713)
    Hutchinson’s critique of the Charter comes from both left and right.
    He says that Charter rights are indeterminate, and that the act of interpretation can never be objective.
    Charter cases are really about resolving social and political conflicts.
    Charter poses challenge for ‘theoretical apologists of Cdn politics and democracy’ → Crisis of legitimacy
    Despite common understandings that law is political, there remains a professional belief that law ‘retains an essential degree of hermeneutical autonomy’ →
     Hutchison maintains that this objectivity cannot be demonstrated and that legal interpretation is indeterminate.
    Judicial decision-making requires court to engage in ideological disputation. The court’s task is to resolve social and political conflicts. Once this is understood,
     the idea that judicial interpretation is based on enforcing the Charter on the basis of a community consensus becomes unconvincing.
    One of the unanswerable questions for those who justify Charter on the basis of communal values, is why the community cannot be trusted to id and give voice
     to that consensus through the democratic and legislative arms of govt.
    It is paradoxical to justify the Charter in terms of some kind of societal consensus of values. If we really had a consensus, we wouldn’t need a Charter! All of the
     Charter litigation since 1982 proves that we have widely divergent values within Canadian society.
    If we really has a consensus, why would we find it necessary to entrench it in a document that is almost impossible to change and entrust the enforcement of
     that document to a small, unrepresentative group of people?

    In early years of the Charter, criticisms of judicial review came from the left (above) based on concern that SCC would use Charter to restrain socially desirable
     regulation and redistribution. More recently, criticism from right, about illegitimate “judicial activism” that forces unwilling majorities to accept the rights of
     unpopular minorities.
    There is also a right-wing critique of the Charter, which claims that the judiciary is out of sync with traditional values, and has been captured by activist groups
     (“the court party”) which have hypnotized it with “rights talk.”
    The overwhelming majority of Canadians now support the Charter.
    In response to these new debates about judicial review, Hogg and Bushell discuss idea of judicial review as a form of dialogue between the courts and
     legislatures…

Peter Hogg and Alison Bushell, “The Charter Dialogue Between Courts and Legislatures” (1997) (CBp.715)
    Hogg and respond to critics of the Charter by describing a “dialogue.” Courts can put issues into public debate and onto the legislative agenda. Legislatures can
     reverse, modify or avoid judicial decisions. (Critique of this idea: how can you have a dialogue when there is a blatant power imbalance?)
    In most cases, legislatures can respond to Charter review by making minor modifications that do not compromise the objective of the legislation.
    The Charter has four features that facilitate dialogue:
     o     S.33 provides a way for a legislature to circumvent the Charter.
     o     S.1 limits rights to what can be reasonably justified.
     o     Some rights contain internal limits, e.g. s.7 and s.8.
     o     Equality rights give legislatures a choice between extending benefits to all or denying them to all.
    There are also “barriers” to dialogue. The Morgentaler case provides an example of an issue becoming so divisive that legislatures don’t want to touch it.
    The Charter has an influence beyond judicial decisions, such that legislatures consider rights questions when drafting legislation.
    This idea is derived from an American book, The Common Law in an Age of Statutes (Calabresi)

Kent Roach (CB 720):
         The American debate about judicial activism has been inappropriately imported into Canada. In Canada, ss. 1 and 33 mean that judges do not have the
          last word on controversial issues of social policy. Charter has, in fact, created a good middle ground between the Courts and Legislature.


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                                                                                              Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009    p. 78

          The greatest danger in the dialogue between courts and legislatures is not excessive judicial activism, b/c the legislature will respond in that case. The
           problem is if the Court is too weak in protecting minority rights, it is less likely that elected govts will do more.

Vriend v. Alberta (1998) SCR (CB 722)
Jurisdiction        Alberta
Facts               SCC found that the omission of sexual orientation from the list of prohibited grounds in AB’s human rights legislation constituted an
                    unjustifiable violation of s. 15
Issues              Discussion by Iacobucci J on the legitimacy of the Charter
Ratio                          When Charter was introduced, Cda went from Parliamentary to constitutional supremacy. This meant that each Cdn was given
                                individual rights and freedoms that no govt/legislature could take away. However, as rights and freedoms are not absolute, govts
                                and legislatures could curb them under s. 1. We should recall that it was a deliberate choice of the legislature to give an interpretive
                                role to the courts, and to command them under s. 52 to declare unconstitutional legislation invalid.
                               In response to concerns about legitimacy of judicial review:
                                     This new social contract with the courts was democractically chosen.
                                     Courts can make reasoned and principled decisions b/c independent from executive and legislative branch
                                           Criticism – they are not accountable – they can “just do whatever they want”
                                           But this is the reason rule of law has force – independent judiciary!!
                                     Charter gives rise to dialogue (see Hogg and Bushell) such that each branch is made accountable to the other
                                     Democracy means more than majority rule. Not undemocratic to intervene when executive/legislative decisions are not
                                      reached in accordance with the democratic principles mandated by the Charter. Court good for delineating these principles
                                      when considering s. 1 arguments that the legislation was a reasonable limit in a free and democratic society. Courts can
                                      respect dignity, social equality and other democratic values that are not always protected by majoritarian politics
                                           Judicial review reinforces democracy – complex argument, but convincing (two prongs: simple majority rule is not the
                                            essence of democracy (Oakes decision); judges can intervene when there are indications that a legislature decision was
                                            not done in accordance with democratic principles – process)
                         
Comments            Sheppard on Vriend v. Alberta
                        Wasn’t just oversight of legislature. There was evidence from parliamentary debates that they purposefully excluded “sexual orientation”.
                        AB’s defense: it was a case of negative action (parallel to desegregation where state said they would just close down the school because
                         they weren’t required to provide any in the first place)
                        Problem was the purposeful omission
                    So, now that we know they were wrong, what is the appropriate solution?
                    1. Do you rewrite the legislation? (maybe could have read “sexual orientation” into the existing protection of “sex”, then it would just be
                         reinterpreting)
                    2. Or do you strike down section in a case of “equality with a vengeance”
                    3. Or, suspend ruling and direct legislature to fix it?
                    [Here, the majority wanted to rewrite and the dissent wanted to suspend.]

    The SCC also endorsed the dialogue theory in R v. Mills (1999) (CBp.724).
    POTENTIAL REMEDY: suspend the ruling and direct the legislature to re-draft the statute

Approaches to Interpretation

Ch. 17: Framework of the Charter (CB 737): interpretation of rights, and justification of limits

2-step structure of Charter adjudication:
1. Has a Charter right been breached by a state act? (burden of proof on claimant)
2. If yes, is violation justified under s.1? (burden of proof on State)

s. 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.

Despite ability to read broad interpretation of rights, there are nonetheless limits.
Ex. Freedom of expression. A court will see picketing as ok. But murder as expression of hatred is not ok.
Sometimes the Court is reluctant to interpret a right b/c the right is not the kind of thing the Charter had in mind


1. TEXTUAL (PURPOSIVE AND CONTEXTUAL)

Given the textual source of the Charter, interpretive role of Court is to determine is there was a violation of a substantive right/freedom
          Precedent: In the early years, the SCC looked at US and European jurisprudence, but now there is more Canadian case law to rely on.
          Extrinsic evidence: social science studies, etc.
          Explicit interpretive provisions in the Charter, including:
                s.25: Aboriginal rights trump the Charter
                s.26: the Charter is not the only source of rights; other rights are still valid
                s.27: multiculturalism (It’s not always obvious how this should apply.)
                s.28: gender equality


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                                                                                                Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009   p. 79

          Parliamentary debates and reports surrounding the drafting of the Charter have been given very little weight. The SCC explicitly rejected the “framers’
           intent” approach in the Reference re Motor Vehicles. The Charter is not supposed to be a narrow, frozen document. The court has more or less turned its
           back on Canadian Bill of Rights jurisprudence.
          international constitutional jurisprudence, particularly American: The comparative approach must be tempered by an awareness of Canadian social,
           economic, and political particularities.
          International conventions, treaties, and human rights documents, particularly ones to which Canada is a signatory, help to flesh out concepts.

Because of explicit limitations in the text, there is more freedom to interpret “violation of right broadly”. Even with broad interpretation, govt can always counter
that it was within a reasonable limit.

PURPOSIVE APPROACH
Courts have adopted purposive approach (see Hunter v. Southam).
A judgment about the scope of value of a particular right can only be made after court has specified the purpose underlying the right, or delineated the nature of the
interest it is meant to protect.

Hunter v. Southam [1984] 2 SCR 145 (CBp.738)
Jurisdiction
Facts              Early Charter case involving s. 8, guarantee of freedom from unreasonable search and seizure (a search of newspaper offices was carried out by
                   the Combines Investigation Branch where statutory basis for search did not require prior judicial authorization).
Issues             Outline of purposive approach by Dickson CJC, and the difference between constitutional and statutory interpretation.
Ratio              Dickson CJC: crux of the case is the meaning to be given to the term “unreasonable” in the s. 8 guarantee of freedom from unreasonable search
                   and seizure.
                   Living tree: task of expounding a Constitution is crucially diff from that of a statute.
                              “A statute defines present rights and obligations. It is easily enacted and as easily repealed. A Constitution, by contrast, is drafted
                               with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power, and
                               when joined by a Bill or Charter of rights, for the unremitting protection of individual rights and liberties. Once enacted, its
                               provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet
                               new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the Constitution and
                               must, in interpreting its provisions, bear these considerations in mind.”
                                    Statute – enacted to “manage mischief” – question to be asked when interpreting statutes is “what was the mischief that the
                                     drafters were intending to remedy?” – this question permits judges to interpret the sometimes ambiguous language of the
                                     statute – still a purposive approach, but different from the constitutional context (“drafter’s intent”)
                              He said that the Charter “is a purposive document. Its purpose is to guarantee and protect, within the limits of reason, the
                               enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and
                               freedoms; it is not in itself an authorization for governmental action.”
                              Dickson CJC said that before one could assess the reasonableness of an impugned law or action, one would have to specify its
                               purpose.
                              This case arose when a newspaper’s offices were searched without prior judicial authorization, which was allowed under the
                               Combines Investigation Act.
                              According to Dickson CJC, the purpose of s.8 was to protect a reasonable expectation of privacy, and the impugned provisions of the
                               Combines Investigation Act clearly violated this. Therefore they were illegal.
Comments           Sheppard:
                        Important for general comments about interpretation made by Dickson CJC
                        For Dickson, the constitution is not a statute [questioned in Notes section of CB 740, where asked “Do courts not interpret statutes in light
                         of the interests they are intended to protect. Are statutes not forward looking?”+
                        Once enacted, a constitution is hard to repeal, so we need a living tree approach to adapt to new realities

                     1. Statutory law is a response to a particular social problem (mischief)
                               Purposive interpretation means drafter’s intent
                     2. Constitutional law is about planning for the future
                               Purposive interpretation means living tree approach

                     Notes and Questions:
                              How much guidance does the purposive approach give the courts when defining the scope and limits of rights?
                                     o     On the one hand, court wants attribution of purpose to be uncontroversial.
                                     o     On the other hand, court want to attribute purpose to give real content to the right and guide resolution
                              Are “purposive interpretation” and “generous interpretation” the same? We allow a broad interpretation limits then imposed via s.
                               1. But could purposive approach not result in limits being placed on the potential scope of a right?
                              2-step structure of adjudication rests on idea that there are 2 distinct issues: defn of right/justification of limits. The scope of the
                               right is defined in terms of the interests it protects. Any activity that advances the right’s purpose falls within its scope. Other
                               interests that compete or conflict may be taken into account under s. 1.
                                     o     How distinct are scope and limitations issues?
                              4) There is a close link between court’s perception of the legitimacy of their role and their general approach to rights adjudication.

    In R. v. Big M Drug Mart Ltd., (CBp.740) (see p.90), Dickson CJC elaborated this “purposive” approach to interpretation:
          “…the purpose of the right or freedom in question is to sought by reference to the character and the larger objects of the Charter itself, to the language
           chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined [this raises questions about the divergent


                                                                                  79
                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009        p. 80

        perspectives about history], and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated
        within the text of the Charter.”
       Dickson CJC argued for “a generous rather than a legalistic” interpretation, aimed at fulfilling the purpose of the guarantee, and giving people the full
        scope of the right intended to be protected.
             “At the same time,” Dickson wrote, “it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the
              Charter was not enacted in a vacuum, and must therefore…be placed in its proper linguistic, philosophic and historical contexts.”
    HOW HELPFUL IS THIS?
       Goal: protection of individual rights and freedoms, guaranteed by the State

Aids include:
      1. INTERPRATIVE PROVISIONS IN THE CHARTER (CB 742): Affirm of highlight certain values that are to be taken into account. Includes s. 27 (Charter shall be
           interpreted in manner consistent with multicultural heritage of Cda) and s. 28 (notwithstanding anything in Charter, rights and freedoms referred to in it
           apply equally to men/women)
      2. PARLIAMENTARY AND COMMITTEE DEBATES: Weaker argument. Care must be given to not let this freeze rights and values in time. Living tree approach
           means that care must be taken that historic materials do not stunt growth.
      3. PRE-CHARTER JURISPRUDENCE: Only limited relevance because, pre-Charter, court not entrusted with same constitutional mandate to make these
           decisions having the effect of limiting sovereignty of Parliament.
      4. INTL SOURCES: Refer to other human rights cases, but with caution. Have to recognize where applicable, and where not, where similarities can be seen,
           and where the differences are too great. In Reference re Public Service Employee Relations Act, Dickson CJC wrote that, while not bound by norms of intl
           law in interpreting the Charter, these norms provide a relevant and persuasive source for interpretation.

Gibson, “The Law of the Charter: Equality Rights” (CB 745)

Intl Human Rights Instruments:
         International Bill of Human Rights: includes Universal Declaration of Human Rights (1948) and supplementary convenants.
         Large body of intl human rights accords illustrate paramount position that human rights now occupy in global conscience.

CONTEXTUAL APPROACH
   the contextual approach: this is most closely associated with Wilson J’s judgment in Edmonton Journal v. Alberta (A.G.), [1989] 2 SCR 1326 (CBp.764):
          "One virtue of the contextual approach, it seems to me, is that it recognizes that a particular right or freedom may have a different value depending on the
           context…It seems to be more sensitive to the dilemma posed by the particular facts and therefore more conducive to finding a fair and just compromise
           between the two competing values under s.1."
          However, it’s debatable whether this form of interpretation should be used outside of s.1.
          In this case, the SCC struck down an Alberta law prohibiting the publication of information from matrimonial court cases, concluding that the government
           could have protected privacy without such a sweeping measure.
          Three steps: ADOPTED later? (Edmonton Journal)
          Wilson J emphasized that one should not consider it a matter of balancing a private interest against a public interest, but rather a balancing of two public
           interests.
   Prof. Sheppard sees the contextual approach as having two “prongs”:
          The “micro” prong considers the individual circumstances of particular litigants.
                E.g. Lavallee: woman in abusive relationship shot husband in the back at a party. Argued it was in self-defense (he had threatened to kill her after
                 everyone left the party)
                “Self-defense” normally means there is an imminent threat of bodily harm and no possibility of retreat
                Bertha Wilson J: To determine if it was self-defense, have to consider the context of the relationship
                      If self-defense is available to everyone. Just because it was articulated in text with a bar brawl in mind does mean she could not act in self-
                       defense. Idea of contextual approach allows this to be included in the constitutional interpretation.
                e.g. Intersectional discrimination can fall through categories of recognized discrimination: a landlord who would rent to a white man or a black
                 woman but not a black man.
          The “macro” prong looks to the social context.
   It is important to use an approach to Charter interpretation that is both purposive and contextual.


The Application of the Charter: The State Action Doctrine (S. 32(1))
[FYI: Human Rights Commissions are set up by legislation. Below the Charter. Not Constitutional documents]

Importance of developing governance standards. Constitution as more than a list of normative statements. Should also be a methodology for state action.

    What are the parameters of the state, and how do we delineate the public and private spheres?
    s.32(1) of the Charter states that it applies to:
          (a) “to the Parliament and government of Canada…”
          (b) “to the legislature and government of each province…”
    The Charter protects individuals:
          Citizens
          Other persons in Canada
          Sometimes corporations, depending on the text of the Charter and jurisprudence.
                Corporations are not directly protected by ss.2(a), 7 (sort of) or 15, but they can invoke these sections when someone else’s right is being infringed.
    The Charter does not apply to the private sphere, only to government.

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                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 81

          Argument for this – Jessica: post-1945 – holding governments accountable for what they do to their own people
               Governments must be held to a higher standard
               Idea of checks and balances (liberal democracy)
          However, the Charter (especially equality rights) applies to the text of federal and provincial human rights legislation, which does apply to the private
           sphere, and thus the Charter can apply indirectly to the private sphere (as in McKinney v. University of Guelph, or Vriend v. Alberta).
               Human rights codes have quasi-constitutional status because they implicate rights that are considered important to society. (This is a new in-
                between category that the courts have created.)
               Human Rights Commissions deal mostly with discrimination – implementation of HR statutes that provide protection against discrimination in
                specific areas (employment, housing, provision of public services, harassment, hate speech on the internet, QC: exploitation of disabled and elderly)
                – these commissions investigate cases – private sphere?

Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. [1986] 2 SCR 573. (CBp.781)
Jurisdiction     British Columbia
Facts            Striking employees from Purolator picketed outside Dolphin because Dolphin had contracts with Purolator and was working for it during the strike.
                 Dolphin got an injunction to stop the “secondary” picketing, based on the common law tort of inducing breach of contract. Union sought to have
                 the injunction overturned on grounds that it violated their freedom of expression.
Issues           Was the injunction against secondary picketing constitutional?
Holding          Yes.
Reasoning        McIntyre J:
                 The court held that picketing was a form of expression, but that limits on secondary picketing could be justified. However, this was not a Charter
                 case because the Charter does not apply to private litigation. It only applies to government action. According to McIntyre J, the judiciary did not fall
                 within the meaning of “government” under s.32. The Charter does not apply to common law rules or judicial decisions in private litigation.
                 (Nevertheless, the judiciary “ought to apply and develop the principles of the common law in a manner consistent with the fundamental values
                 enshrined in the Constitution.”)
Ratio            The Charter is not applicable to private litigation. The Charter only applies to common law rules insofar as executive or administrative bodies
                 act on them.
Comments                    The idea that the Charter should not apply to the judiciary has been criticized as incoherent.
                            CML development of economic torts has historical roots in upholding of vested interests – can be critiqued.
                            p. 784 – where private party A sues private party B, and no government action is relied upon to support the action, this is a distinct issue
                             about whether the judiciary ought to develop the principles of common law in a way consistent with the constitution.
                            Even if Charter is not directly applicable, it can be used as a source for interpretation.

Notes and Questions (CB 785)
     1. Dolphin has spawned great deal of criticism about way the line was drawn b/w govtal and non-govtal action. Raises questions about how outcomes will be
          different when looking at common law rules b/w private litigants and statutory rules governing private relations. Also raises questions about how rules
          may vary depending on whether provinces codify laws, or leave them in their common law form.
     2. Hogg thinks court drew the line in the wrong place and should have subjected common law to the Charter b/c common law had ‘crystallized’ into a rule
          that could be enforced by courts.

    Two later cases held that the Charter did apply to the courts, because they were enforcing statutes.
         Therefore the only exception to the Charter’s application to courts is when they are using common law rules to settle disputes between private parties.

    There are two important categories of application:

1. Governmental actors
         Entities controlled by government (boundaries drawn in these cases)
         FORM test – is the body acting governmental in form – degree of governmental control (or institutional agency) is the key factor (not creation by statute or
          public function)
         Factors to consider:
               Substantial government funding
               Mandate to carry out a government/public function (but private charities do this too, esp. historically)
               Set up by statute (this statute can be challenged independently on Charter grounds!)
               Control – independent vs. government appointment of administration

McKinney v. University of Guelph, [1990] 3 SCR 229. (CBp.787)
Jurisdiction    Ontario
Facts           Several Ontario universities forced their employees to retire at age 65. Employees challenged this on the basis that it was age discrimination and
                violated equality rights. The Ontario Human Rights Code’s rules on age discrimination in employment only protected people between the ages of
                18 and 65.
Issues          1. Could the Charter apply to the actions of universities?
                2. Was the impugned provision Ontario Human Rights Code unconstitutional?
Holding         1. No; 2. No.
Ratio           La Forest J:
                            Classic paradigm for exclusion of private activirt from Charter: Government is the body that can enact and enforce rules and
                             authoritatively impinge on individual freedom. Therefore, only govt should be shackled to preserve rights of the individual.
                            Opening up private activities to judicial review would impose an impossible burden on the courts
                            “The mere fact that an entity is the creature of statute and has been given the legal attributes of a natural person is in no way sufficient
                             to make its actions subject to the Charter.”
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                                                                                              Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 82

                             True, govt cannot authorize action by others that would be in breach of the Charter (in reference to Hogg), but, this does not extend to
                              activities of non-govt entities created by govt that pertain to private matters.
                             Here, the power of universities to negotiate retirement policies has nothing to do with statutory compulsion
                             Engaged in govt-type activities? Should be distinguished from municipalities, which perform a ‘quintessential’ govt function.
                             Control: Universities receive govt funding, but they have their own governing body, and the govt has no legal power to control
                              universities
                  1. The Charter does not apply to universities. It’s true that most universities are creatures of statute, and they receive most of their funding from
                  the government; it is also true that they perform an important public function. However, they have independent governing structures, and their
                  decisions with regard to hiring and contracts are completely independent. What matters is the degree of government control (or institutional
                  agency).
                  2. This provision of the OHRC violated s.15, but was justified under s.1.

                  Wilson, J (dissenting)
                  Broader view of government – “sensitive... to the wide variety of roles that government has come to play in our society and the need to ensure
                  that in all o these roles it abides by the constitutional norms set out in the Charter.”
                  Three tests, according to which universities would be government actors:
                        1. “Control” test – does any branch of gov’t exercise control?
                        2. “Government function” test – does entity perform a traditional gov’t function?
                        3. “Statutory authority and public function test” – is the entity acting according to statutory authority specifically accorded to further a
                               government objective in the public interest?
Comments          The idea of an “important public function” could probably change radically over the years.
                  The analysis of the degree of government control depends on provincial legislation from province to province – might be a different situation in
                  Nfld, for example, than in Ontario – the details must be looked at.
                  CHARTER ANALYSIS:
                        1. Government actor/action?
                        2. Statute by which body was created
                        3. Analysis of competing rights and the context of the conflict (e.g. pro-life speech on campus – what grounds for stopping them? What
                               charges, e.g. trespass? – challenge of the law that interferes with freedom of expression)
                                                Possible remedies – reading down the law that conflicts with the charter? (different procedures for causes of action in
                                                 common law vs. statute)

Sheppard: Why does Charter only hold govt accountable?
   Holding govt to a higher level
   Trying to // intl law by holding govt accountable
   Based on idea you can draw a line between govt/public and private sphere
   Govt is the only power that can legitimately use force [debatable]
    o     If govt is coercive, you want to control that body
    o     If you want to protect private interests from other private interests, you can go to the govt

Form test: Once you confirm it is govt (executive/legislative), the Charter applies (even things like an employment contract if it is issued by the govt). But what do
you when you’re not sure where to draw the line? (we’re assuming we can draw a line between public/private). How do you define public function?

                             Government is the body that can regulate and authoritatively impinge on individual freedom – that is why the constitution must be
                              binding on the government – it is the check on the “legitimate use of force”
                             In the case of Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 SCR 570 (CBp.792), the SCC distinguished McKinney
                              and found that the Charter did apply to community colleges—in large part because colleges have a much less autonomous structure than
                              universities.
                             Stoffman v. Vancouver General Hospital (p.792) – hospital as a government actor or not – court decided no, the administration of the
                              hospital was independent
                                   L’Heureux-Dubé J. joined dissent in this case – found hospital was acting as government because of greater involvement in
                                    regulation of hospital
                             In the case of Lavigne v. OPSEU, [1991] 2 SCR 211 (CBp.794), the court applied the Douglas College decision to a question surrounding a
                              collective agreement between a community college and its employees’ union. The court rejected the argument that the Charter applied
                              only to the college’s regulatory activities and not to its contractual activities, claiming that this rested on an outdated understanding of
                              government.
                             The SCC has never ruled on whether the Charter applies to school boards, although it assumed this point without discussing it in R. v. M.
                              (M.R.), [1998] 3 SCR 393 (CBp. 793).
                             Private corporations are also creatures of statute, but they are not controlled by the government.

Ex1. Universities, CBC, etc.
Ex2. Crown corporations v. private corporations. Private set up by statute but not deemed to be govt action
Ex3. Queens University had problem with racist/homophobic speech on campus. Set up committee against hate speech to correct people. Because it is a university,
do Charter protections of freedom of expression apply?
There are already protections without committee through:
     Criminal law on hate speech
     Human rights protection from discrimination
     University Codes of Conduct


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                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 83

Let’s say Charter does not apply to University. Next step is to do a Charter analysis of legislation. The Charter may come into play when other legislation is already
under scope of Charter. In other words, challenge indirectly for legislation failing to protect.

                     Entities exercising governmental functions

Godbout v. Longueuil, [1997] 3 SCR 844 (CBp.795)
Jurisdiction   Quebec
Facts          The City of Longueuil required all new permanent city employees to reside in the city. Godbout was fired from her job when she moved to a
               neighbouring city.
Issues         1. Did the city’s resolution violate privacy rights?
               2. Could the Charter apply to the actions of a municipality?
Holding        1. Yes; 2. Yes.
Reasoning      La Forest J.
               1. [Not important for this summary]
               2. Although municipalities have an independent structure, (i.e., not provincially appointed), La Forest J found that municipalities were
               governmental entities exercising governmental functions, based on the fact that
                      1. They were publicly elected
                      2. They have the power to tax
                      3. They can make and enforce laws
                      4. They derive their power from provinces
               The fourth criterion is important, because governments should not be allowed to delegate the infringement of rights to entities they have
               created.
               Moreover, La Forest J found that all of a municipality’s powers (public and “private”) are governmental.
Ratio          Entities can be subject to Charter by their governmental nature, or their governmental activities.

                           What about Aboriginal governments: band councils, etc?
                           What about law societies?

2. Governmental acts
         Entities implementing government programs
               Eldridge v. British Columbia (A.-G.), [1997] 3 SCR 624 (CBp.801) (see p.102): Deaf patients sought a declaration that the failure to provide a sign
                language interpreter for health care providers was unconstitutional because it violated equality rights. A hospital was found to be bound by the
                Charter, because it was “implementing a specific governmental policy or program.” (But this is controversial.)
                     La Forest J’s comments on CBp.801 are a good summary of this chapter.
         Entities exercising statutory powers of compulsion
               Slaight Communications (CBp.803) – adjudicator acting pursuant to Canada Labour Code
                     An adjudicator exercising delegated power does not have the power to make an order that would result in an infringement of the Charter.
               In the Blencoe case, the SCC found that the B.C. Human Rights Commission was bound by the Charter.
               A law can be prima facie invalid, or invalid as applied.

Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624 (CBp.799)
Jurisdiction      BC
Facts             Deaf patients sought declaration that failure to provide public funding for sign language interpreters in hospitals violated s. 15
Issues            1. Does the Charter apply to the hospital in this case?
Holding           1. Yes.
Reasoning         La Forest J.:
                  Private corporations are not subject to Charter even though they are brought into existence by statute because they are completely autonomous
                  from government. However, other statutory entities are not so clearly autonomous.
                              Many public or quasi-public institutions may be independent from government in some respects, but not in other respects – it is up to
                               the court to establish whether that particular action is part of “government” within the meaning of s.32.
                              “When it is alleged that an action of a public statutory entity, and not the legislation that regulates them, violates the Charter, it must
                               be established that the entity, in performing that particular action, is part of the ‘government’ within the meaning of the Charter.”
                  The hospital in this case is implementing a specific governmental policy or program, and is thus bound by the Charter.
                  TWO BASES FOR CHARTER APPLICATION TO AN ENTITY:
                        1. Entity is “government” for the purposes of s. 32
                        2. Entity is performing a particular activity that can be ascribed to government.
                  Distinguishing Stoffman from the present case on the grounds that La Forest J’s argument in Stoffman only stated that the hospital providing
                  statutory services did not make it a governmental actor, thus allowing it to conduct its private affairs in a manner not governed by the Charter –
                  however, here the issue is that the services provided are directly implementing a specific governmental policy, so the provision of those services
                  must be in keeping with the Charter.
Ratio             The Charter applies to all government actors and private actors engaged in activities that can be attributed to government.
Comments          This is the leading case for s. 15 and rights of persons with disabilities.

3. Government inaction
         In the Vriend (CBp.805) case, the Alberta government argued that it couldn’t be faulted for failing to protect gays & lesbians, because it hadn’t positively
          interfered with anyone’s rights.
               However, one can see how this position could be challenged on equality grounds.

                                                                                   83
                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 84

               The SCC decided that s.32(1) does not require a positive act for the Charter to be invoked. The terms “all matters within the authority of the
                legislature” includes government inaction.
               This seems to indicate a shift toward positive rights—does it give the government an obligation to address systemic inequalities?
                           ONCE the government has decided to implement a policy or program, it must do so in a non-discriminatory manner

Vriend v. Alberta, [1998] 1 SCR 493 (CBp.805)
Jurisdiction     Alberta
Facts            Omission of sexual orientation from Alberta’s Individual’s Rights Protection Act (IRPA) – omission deliberate based on legislative history. Vriend
                 was an employee of King’s College, and was fired after his employers found out he was gay. He was not allowed to file a complaint under the IRPA.
Issues           1. Was the omission a violation of the Charter?
Holding          1. Yes.
Ratio            Cory J:
                 Sexual orientation was read in to the Act.
                 Regarding a positive duty to act:
                            Not accepted that a deliberate choice not to legislate should not be considered govt action and thus not attract Charter scrutiny. This is
                             too narrow a view. Nothing in s. 32(1)(b) to say that Charter only applies when there is a positive act encroaching on a right.
                            S. 32(1)(b) is not worded only to include positive acts encroaching on rights – it is worded broadly enough to cover positive obligations
                             on a legislature. Charter applies to “the legislature and government of each province in respect of all matters within the authority of the
                             legislature of each province.”
Comments         1. Vried confirms that underinclusive acts can be subject to Charter review. However, little judicial support for the view that s. 15 imposes
                       positive obligations on govts to initiate action against inequalities.
                 2. Courts generally find that fundamental freedoms under s.2 impose no positive obligation on govt. On this traditional view, the Charter will
                       not apply to govt inaction that is alleged to infringe on civil liberties.
                 3. When court finds that legislative omission violates the Charter, it is saying that the common law operates in the absence of legislation and
                       needs to be brought into conformity with the Charter.

          The case of Dunmore v. Ontario (A.G.), 2001 SCC 94 (CBp.807) was the SCC’s strongest statement in favour of requiring government action.
                     In this case, Ontario labour legislation excluded agricultural workers from the right to form a trade union and bargain collectively.
                     Bastarache J. (for the majority) decided this case on the basis of freedom of association, and suggested that the government did have a positive
                      obligation to facilitate the freedom of association of vulnerable groups.
                     However, Bastarache J distinguished between “legislative silence” and “underinclusive legislation.”
                           Negative rights (surprising decision – everyone thought they would lose)
                           Agricultural workers specifically prevented from unionizing. Challenged under equality.
                           Discrimination argument failed because “agricultural worker” isn’t protected like sex, race, etc.
                           Not discrimination, but Court found that exclusion violated freedom of association: “In order to make freedom to organize meaningful, s.
                            2 of the Charter imposes a positive obligation on the state to extend protective legislation to unprotected groups.”
                           Bastarache J: “This Court’s understanding of ‘state action’ has matured since the Dolphin Delivery case. Not about discrimination, but
                            contribution of private actors to the violation of fundamental freedoms does not immunize the state from Charter review.”
                           Bastarache J: This only applies in certain cases. Under-inclusive situations.

Application of Charter to Courts and Common Law (CBp.809)
   Dolphin held that courts not part of govt under of s. 32(1). This makes no sense, and has since been ignored.
   Dolphin also stands for the proposition that the Charter does not apply to the common law when relied upon by private litigants, nor does it apply to a court
    order issued at conclusion of litigation b/w private parties. This has been followed, although its significance seems to be dwindling.
   Courts now more comfortable with idea that common law needs to be applied and developed in a manner consistent w/ Charter values.

A. Reliance by Government on Common Law (p. 809)
          When government relies on Common Law in litigation, the Charter applies
               BCGEU v. BC(AG), [1988] 2 SCR 214 – BC Supreme Court Chief Justice issued temporary injunction restraining picketing a courthouse – challenged on
                Charter grounds (freedom of expression) – Dickson CJC ruled that the Charter applied to the Chief Justice’s order

B. Reliance on Common Law in Private Litigation (p. 810)
In private litigation resolved on the basis of the common law, the Charter does not apply directly, but is still relevant. Based on statement in Dolphin whereby “the
judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution”
           Hill v. Church of Scientology of Toronto: Is common law of defamation inconsistent with the Charter guarantee of freedom of expression?
           The most a private litigant can do is argue that the common law is inconsistent with Charter values
           When this happens, what can courts do? S. 1 analysis is inappropriate because not a charter right. Have to balance the Charter values with the underlying
            common law principles such that the Charter values provide the guidelines for any modifications to the common law that need to be made.
           Sheppard: Note that regulation of freedom of expression is often justified under s. 1
                  Charter does not apply directly, but is still relevant in the development and application of the Common Law

Hill v. Church of Scientology, [1995] 2 SCR 1130 (CBp.811)
Jurisdiction       Ontario
Facts              Libel action by the Crown Attorney Casey Hill against the Church of Scientology and its lawyer, Michael Manning – they alleged Hill misled a judge
                   of the Supreme Court of Ontario and breached orders sealing documents belonging to the Church of Scientology – these allegations were found to
                   be untrue in later proceedings.
                   Manning and Scientology found to be liable at trial – appeal dismissed at Appeal and SCC.
Issues             1. Is Common Law of defamation inconsistent with the Charter freedom of expression?
                                                                                  84
                                                                                               Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009        p. 85

Holding            1. No
Ratio              Cory J.
                   In private litigation regarding a common law rule, parties cannot action the violation of a Charter right – the most they can do is allege that the
                   common law is inconsistent with Charter values.
                   In developing the common law, the courts will try to balance common law rules with Charter values – it is a conflict of principles, not the violation
                   of a Charter right. The balancing is thus more flexible than it would be under a S. 1 analysis.
                   The burden of proof is completely on the plaintiff to show that the common law fails to comply with Charter values, and that the common law
                   should be modified in order to balance those values.

Standing: Who Can Raise Charter Issues? (CBp.1300)
    Anyone whose Charter rights have been violated can seek a remedy under s.24 or s.52(1), depending on the nature of relief desired
    When a corporation seeks to have a law declared invalid based on, e.g. freedom of religion or life, liberty and security of the person, to which it is not entitled, it
     can do so if it is defending itself from criminal charges. It does so under s. 52.
          Corporations that cannot claim an infringement of their own Charter rights have not been allowed to bring independent civil actions, despite the fact that
           they are subject to those laws
          Opinion divided: some think it is an unjustifiable limit on judicial review; others think the Charter exists to protect individual rights and dignity, not
           corporate, economic interests
    If public interest standing is granted (developed in Thorson-McNeil-Borowski trilogy) individuals or corporations can argue the violation of another person’s
     Charter rights

Jurisdiction: Where Can Charter Issues be Raised? (CBp.1302)
    Regarding s.24 remedies, there is an ongoing debate about whether or not administrative tribunals count as “courts of competent jurisdiction”
    Administrative tribunals with the power to decide questions of law are allowed to declare invalidity or declare laws of no force or effect (s. 52 remedies)
          Board of referees under UIAct were found not to have jurisdiction
          Policy considerations – efficiency of allowing administrative tribunals the power vs. doubts of informal processes of tribunals, as well as their lack of
           expertise


Limitations on Charter Rights
    There are four major kinds of limitations on Charter rights:
         Limits in terms of how we define rights: what we mean by “freedom of conscience,” etc.
         “Internal” limits within the text of each individual right:
               e.g. s.7: “…except in accordance with the principles of fundamental justice.”
               e.g. s.8: “…unreasonable…”
               e.g. s.15(2): affirmative action programs
         S.1: the “reasonable limits” provision, where the balancing is explicit
               This clause was modeled on international human rights instruments and the European Convention on Human Rights.
               The US constitution has no such feature, but judges have “read in” limits.
               The South African constitution has a similar article, and has followed the Canadian jurisprudence.
               Most of the debate centres on the substantive aspects of the limitation.
                      It is good that the Charter is honest about the fact that rights are not absolute.
                      However, some, such as Dworkin, have argued that rights are not being taken seriously if they can be trumped by an appeal to the general
                       welfare.
         S.33: the “override” provision or “notwithstanding clause”
               This is now seen as politically unacceptable.

Section 1: Reasonable Limits
    Because of s.1, the SCC has used a two-step framework for all Charter analysis. (This can vary depending on whether there are internal limits to the right in
     question.)
         The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such (1) reasonable limits prescribed by law
          as can be (2) demonstrably justified in a free and democratic society.
    The Oakes test addressed this concern by saying that the words “free and democratic society” set the standard for justification.
          1. What is the definition of the right or freedom, and has the government violated it?
          2. Is this violation:
                       Prescribed by law? (formal requirement)
                                 Idea is to let citizens know so that they can plan their behaviour.
                                       Sources of this requirement: human rights documents – European Court of Human Rights: accessibility, intelligibility, precision
                                         citizen must be able to foresee to a reasonable degree of certainty the consequences of his actions within the given
                                        circumstances
                                       “Reasonable,” rather than “absolute” certainty is acceptable (gov’ts need wiggle room)
                                 Safeguards the Charter by acting as a “gatekeeper” – stops the government from easily limiting Charter rights.
                                       This forces political accountability for Charter right limitations – no blank cheque for government!
                                 R v. Therens – “The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or
                                  results by necessary implication from the terms of a statute or regulation from its operating requirements.” – (CBp.749), the SCC
                                  found that police discretion to order breathalyser tests without informing a suspect of his right to instruct and retain counsel was
                                  not a limit “prescribed by law.” The police were acting pursuant to statutory authority, but their discretion was not constrained by
                                  any clear legal rule.


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                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 86

                                Sunday Times case – law must be “adequately accessible”, the citizen must have an adequate indication of what the law is, it must
                                 be sufficiently precise
                                There could be many different definitions of what is “prescribed by law.”
                                      Courts have been reluctant to set an extremely high standard on the precision of the language of a law since it may
                                       unnecessarily restrict the legislature from accomplishing its goals. HOWEVER: Irwin Toy v. Quebec: ‘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, there is no “limit prescribed by law.’” (CB p. 750)
                                      Discretion is usually dealt with under “demonstrably justified” test – “minimal impairment” – rather than under precision of
                                       language under a “prescribed by law” test.
                                There was also the case of the balcony rapist, where the Toronto police used women as “bait” without informing the community of
                                 the risk.
                                Osborne v. Canada Treasury Board (CB p. 750) – vagueness can be constitutionally significant in two ways in a s. 1 analysis: (1) so
                                 uncertain as to be incapable of interpretation so as to restrain government power; (2) imprecision.

R. v. Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606 (CBp.751)
Jurisdiction      Nova Scotia
Facts             Argument that provisions of Combines Investigation Act were so vague as to violate s. 7.
Issues            1. Were the provisions too vague?
Holding           1. No
Ratio             Gonthier J.
                             Vagueness can be raised under s. 7 (principle of fundamental justice that laws be not vague) or under s. 1 (limitations on Charter rights
                              to be “prescribed by law”
                             Doctrine of vagueness founded on principle of rule of law.
                             Factors to be considered: (a) need for flexibility and interpretive role of courts; (b) impossibility of achieving absolute certainty; (c)
                              varying judicial interpretations of a given disposition may exist, or even coexist
                             Vagueness under either s. 7 or s. 1 involves similar considerations
                             Court is reluctant to find a disposition so vague as not to qualify as “law” under s. 1, but will rather do its work under the scope of
                              “minimal impairment” test.
                  What is the proper place for the doctrine of vagueness in Charter analysis?
                  Threshold for finding a law vague is relatively high. Two rationales – fair notice to citizen and limitation of enforcement discretion.
                                   Fair notice to citizen
                                   Limitation of law enforcement discretion
                  “A law must not be so devoid of precision in its content that a conviction will automatically flow from the decision to prosecute”
                                   European Court of Human Rights case law
                                   Scope of precision
                  “An unintelligible provision gives insufficient guidance for legal debate and is therefore unconstitutionally vague.”
                  “Certainty is only reached in instant cases, where law is actualized by a competent authority.” – certainty is not the goal; guiding principles are.
                                   Vagueness and the rule of law
                  “laws that are framed in general terms may be better suited to the achievement of their objectives, inasmuch as in fields governed by public policy
                  circumstances may vary widely in time and from one case to the other. A very detailed enactment would not provide the required flexibility... One
                  must be wary of using the doctrine of vagueness to prevent or impede State action in furtherance of valid social objectives, by requiring the law to
                  achieve a degree of precision to which the subject matter does not lend itself.”
Comments               “Prescribed by law”: courts seem to jump over this step very quickly.
                             The idea here is accessibility and precision: If a government is planning to violate rights, it should say so precisely enough that citizens
                              can plan their behaviour around it.

                     Justified? (substantive requirement) – Oakes Test
                           Where to draw the line?
                           Raises questions about the indeterminacy of judicial review (what is reasonable?)
                           What are the limits in a free and democratic society?  how to determine in advance what is justifiable?
                           But remember that absolute certainty is not the goal  there will be an inherent scope of risk
                           The classical liberal idea  you can do what you want until you infringe on others’ rights – that is when the state is justified in
                            intervening...

R v. Oakes, [1986] 1 SCR 103 (CBp.756)
Jurisdiction     Supreme Court
Facts            Section 8 of Narcotics Control Act created a “rebuttable presumption” that proven possession of drugs would immediately mean an intention to
                 traffic. Challenged on the grounds that it violated s. 11(d) of the Charter. Court found that it did violate, and went on to do a s. 1 analysis.
Issues           1. Could the violation of s. 11(d) be upheld as a reasonable limit?
Holding          1. No.
Ratio            Dickson CJC:
                            Dickson CJC glossed the words “free and democratic society” to include:
                                  Inherent dignity of the human person
                                  Social justice and equality
                                  Variety of beliefs
                                  Respect for cultural and group identity
                                  Faith in social and political institutions which enhance participation of individuals and groups in society

                                                                                   86
                                                                                          Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009    p. 87

                                            One strategy may have been to look at other “free and democratic societies” and compare what goes on there  this
                                             strategy was rejected by the Court
                           Dickson CJC said that the onus of s.1 is on the party trying to justify the infringement (i.e., the government)
                                The standard of proof for this should be the “balance of probabilities.” (CIVIL STANDARD)
                                Alternative standard (criminal – proof beyond a reasonable doubt) is onerous
                                Concern about evidence – government must bring forth evidence to make its case

                  Dickson CJC set out two criteria for justification:
                  1. There should be a sufficiently important, “pressing and substantial” objective.
                      It may be unclear whether the court should look at the objective of the legislation as a whole, or of the specific provision (or omission).
                       (sufficient and important)
                      Courts rarely use this stage of the Oakes test to say that legislation can’t be upheld (although they did in Vriend, and in Big M Drug Mart).
                      The objective must also be an admissible one, and not “shifting” (this is from R v. Butler) – government can only rely on the purpose for the
                       law’s enactment, and not for another purpose thought of later (see Big M Drug Mart and Butler).
                             o      Shifting purposes invite uncertainty of interpretation and re-litigation of the same issues
                      There is a controversy over to what extent budgetary considerations can be a valid objective.
                  2. The means must be “reasonable and demonstrably justified” (the “proportionality” test): (See GM)
                       a) The means must be “rationally connected” to the objective.
                            Courts rarely use this test to strike down legislation, although this is what they used in the Oakes case itself.
                       b) The means must impair the right in question “as little as possible” (“minimum impairment” test)
                            This is the most frequent basis for striking down legislation.
                            Of course, it can’t be interpreted strictly; one can almost always imagine some law that would infringe rights even less. In Edwards
                             Books, Dickson CJC said that a law should impair rights “as little as reasonably possible.”
                       c) There must be a balance between the negative effects and the objectives.
                            This is a general, residual consideration of proportionality, and it doesn’t have much effect on the analysis.
                            Hogg thinks that it’s redundant: if one has answered yes to 1, 2a, and 2b, of course one will answer yes to proportionality.
                       d) Civil standard of proof (balance of probabilities) for a s. 1 justification.

                  Court found that this presumption failed the proportionality test, first step – no rational connection.
Comments              QUESTION (Pascal) – judicial restraint (and deference vs. activism) – is there a difference in Charter claims vs. federalism claims? Does the
                       levels of government balance of powers justify a different judicial “culture” vs. state-individual?
                      COREY: the fact that Charter claims are so value-laden may imply the need for greater judicial deference – to give democracy a chance to play
                       out
                            SKETCH!!! Ideas of the tyranny of the majority…

    In Dagenais v. CBC (1984) (CBp.671), the SCC said that one must also consider the salutary effects. –healthy, wholesome, good effects.
    Some elements of the Oakes test seem to require judges to assess the effectiveness of policies.
          Dickson CJC admitted this, but he thought it was better to have a structure for this evaluation rather than having it done by subterfuge.
    Although the Oakes test appears to have been derived from a US Supreme Court case (see CBp.763), the courts have avoided using comparative law in order to
     find a standard for a “free and democratic society.”
    The Oakes test was developed in a criminal case, where one would want to have a stringent test.
          It has been used in subsequent cases about very different topics, such as freedom of expression (Irwin Toy, RJR Macdonald).

TWO IMPORTANT DEVELOPMENT OF OAKES TEST:
   CONTEXTUAL APPROACH: The SCC has approached the Oakes test differently depending on the right being infringed, but it has not gone as far as the US in
    establishing “tiers” of scrutiny for classes of rights.
   JUDICIAL DEFERENCE: In Irwin Toy, the court said that judicial deference in s.1 analysis was appropriate where:
        the issue involves complex social-science evidence (e.g., macroeconomics, or the effects of advertising) (Irwin Toy)
        the government is seeking to protect a vulnerable group (Irwin Toy)
        the government is balancing the interests of different groups competing for limited resources (used in Nfld Treasury Board v. NAPE, below)

Edmonton Journal v. Alberta (AG), [1989] 2 SCR 1326 (CBp.764)
Jurisdiction  Alberta
Facts         Newspaper challenged Alberta Judicature Act, which limited the publication of information arising out of court proceedings in matrimonial
              disputes, on freedom of expression grounds. Court found that Act did limit s. 2(b), but were split on justification issue.
Issues        1. Could the violation of s. 2(b) be justified under s. 1?
Holding       1. (4-3) No.
Ratio         Wilson, J (concurring)
              Description of context-sensitive approach to s. 1 analysis, later adopted by entire court.
              Two possible approaches to Charter’s application – abstract approach or contextual approach – affect the result of the balancing process called for
              under s. 1.
                         What is the underlying value which the right was designed to protect?  purposive interpretation of right
                         What was the legislative objective of the impugned legislation?  legislator’s intent
                               o     When both have been determined, and the legislative objective cannot be achieved without some infringement of the right,
                                     it must be determined whether it is a “reasonable limit” according to s.1
              FREEDOM OF EXPRESSION: abstract approach (Cory J)
                         Fundamental to historical development of political, social, and educational institutions in Canada

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                                                                                              Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009        p. 88

                          Necessary to protect “marketplace of ideas”
                   FREEDOM OF EXPRESSION: contextual approach (Wilson J)
                          This context is divorce court proceedings – protection of privacy interests vs. right of public to open court process – one must give way
                           to the other
                          Contextual approach to balancing these rights vs. assessment of relative importance of competing values in the abstract – different
                           definition of the conflict
                          “one should not balance one value at large and the conflicting value in its context. To do so could well be to pre-judge the issue by
                           placing more weight on the value developed at large than is appropriate in the context of the case. Nor should one, it seems to me,
                           balance a private interest, i.e., litigant X’s interest in his privacy against a public one, the public’s interest in an open court process. Both
                           interests must be seen as public interests.”
                          A particular right or freedom may have a different value depending on the context – e.g. freedom of expression in a political context
                           rather than in disclosure of details of matrimonial proceedings

Irwin Toy Ltd. v. Quebec (AG), [1989] 1 SCR 927 (CBp.766)
Jurisdiction      Quebec
Facts             Restrictions on advertising directed at children – questions of judicial deference to legislative judgment
Issues            1. When is judicial deference to legislative judgment appropriate?
Ratio             Dickson CJC and Lamer and Wilson JJ.:
                  “If the legislature has made a reasonable assessment as to where the line is most properly drawn, especially if that assessment involves weighing
                  conflicting scientific evidence and allocating scarce resources on this basis, it is not for the court to second guess. That would only be to substitute
                  one estimate for another.”
                       Greater deference to legislative choice is appropriate in a variety of circumstances
                               o    When government has tried to balance competing rights
                               o    Protect a socially vulnerable group
                               o    Balance interests of groups competing for scarce resources
                               o    Address conflicting social science evidence as to the cause of a social problem
                       There is a difference between cases where government has tried to balance competing rights and when the government is the antagonist of
                        an individual’s rights
                       Here, the government had a reasonable basis to conclude that the ban on advertising directed at children would impair freedom of
                        expression as little as possible given the pressing and substantial objective

Thomson Newspapers Co. v. Canada, [1998] 1 SCR 877 (CBp.768)
Jurisdiction SCC
Facts        Court held that a federal ban on the publication of voter opinion polls during the last few days before the lection was an unjustified restriction on
             freedom of expression.
Ratio        Bastarache J:
             Objective of legislation can only be decided contextually – requires analysis of nature of social problem it addresses.
             Proportionality of means must also be evaluated through close attention to detail and factual setting.
             Factors the court must take into consideration:
                       Vulnerability of the group
                       Group’s own subjective fears and apprehension of harm
                       Inability to measure scientifically a particular harm in question, or the efficaciousness of a remedy
                       Nature of the activity which is infringed

Above developments of Oakes test not uniformly accepted by all members of SCC – McLachlin J has reservations about degree of judicial deference to legislative
judgment and variable standard of review

RJR Macdonald Inc. v. Canada (AG), [1995] 3 SCR 199 (CBp.770)
Jurisdiction   SCC
Facts          General ban on tobacco advertising struck down. This case is a freedom of expression case – see below.
Issues         1. What is the appropriate application of the Oakes factors?
Ratio          McLachlin J.:
               S. 1 inquiry is by its nature a fact-specific inquiry – based on the facts of the law at issue and the proof offered of its justification, not on
               abstractions. However, “nothing in the jurisprudence suggests that the contextual approach reduces the obligation on the state to meet the
               burden of demonstrating that the limitation on rights imposed by the law is reasonable and justified.”
                          Treating the law as a “unique socio-economic phenomenon, of which Parliament is deemed the best judge”
                          Courts have a role “to determine, objectively and impartially, whether Parliament’s choice falls within the limiting framework of the
                           Constitution. The courts are no more permitted to abdicate their responsibility than is Parliament.”
                          Government must still bear the burden of demonstrating that the limitations on Charter rights are reasonable and justifiable.

 R v. Lucas, [1998] 1 SCR 439 (CBp.771)
Jurisdiction      SCC
Facts             Defamatory libel provisions in Criminal Code upheld as a justified restriction on freedom of expression.
Ratio             McLachlin J (dissenting):
                  In response to Cory J’s conclusion that the value of the expression determines the level of protection to which it is entitled (e.g. defamatory libel is
                  of little value, therefore entitled to little protection)
                              “To allow the perceived low value of the expression to lower the bar of justification from the outset of the s. 1 analysis is to run the risk
                               that a judge’s subjective conclusion that the expression at issue is of little worth may undermine the intellectual rigour of the Oakes
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                             test... Instead of insisting that the limitation on the right be justified by a pressing concern and that it be rationally connected to the
                             objective and appropriately restrained, the judge may instead reason that any defects on these points are resolved in favour of
                             justification by the low value of the expression... justice is better served if the Crown is required to demonstrate a pressing and
                             substantial objective, rational connection and minimal impairment independent of the perception that the content of the expressive
                             activity is offensive or without value.”
                            Maintaining this standard still keeps the s. 1 analysis flexible and contextual, but it ensures an adequate level of protection for all forms
                             of expression. (Negative effects flowing from limitation are more easily outweighed by salutary effects of the limitation  same effect,
                             but more rigorous reasoning)

Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 SCR 381 (Supplement Vol.2 p.75)
Jurisdiction   SCC
Facts          Pay equity agreement signed by Newfoundland government was postponed by Public Sector Restraint Act and arrears for 1988-1991 were
               cancelled. SCC found that the legislation violated s. 15 but found that it was a reasonable limit under s. 1.
Issues         1. Was the Act justified as a reasonable limit under s. 1?
Holding        1. Yes
Ratio          Binnie J:
               Judicial notice taken of Hansard and budget documents to fact-find general objectives of legislature. Binnie said that the government should have
               called witnesses to testify as to government’s exploration of alternative measures to cut costs, but that it wasn’t a fatal oversight to the
               government’s case.
               Pressing and Substantial Objective:
                          Yes – Government believed itself, on reasonable grounds, to be in the middle of a fiscal crisis.
                          Minimal impairment requirement applied in a contextual manner – took into consideration the alternative ways of cutting the required
                           $24 million, and determined that the legislature made cuts that they believed would have the least social disruption
               Greater deference that the s. 1 test is not required by courts to legislatures.

At least three forms of judicial deference:
           Judicial deference to findings of fact by legislature – court recognizes that it has limited competence, or no greater competence than the legislature
           Deference to legislature’s accommodation of competing values or interests – doubts about legitimacy of intervening in value judgments of democratic
            institutions
           Deference based on value of the exercise of the right that is being limited – “really a lowering of the standard of justification under s. 1” – basis for
            McLachlin J’s reasoning in R v. Lucas

Section 33: The Override (Notwithstanding Clause)
    S.33—the override clause—can only be used to override ss.2 and 7-15. It therefore can’t be used to override many important rights, including mobility rights
     and language rights.
    The case of Ford v. Quebec (A.G.), [1988] 2 SCR 712 (CBp.775) established that the court cannot review the substance of legislation protected by s.33—it can
     only review the legislation’s form to make sure it fits with s.33.

Ford v. Quebec (AG), [1988] 2 SCR 712 (CBp.775)
Jurisdiction     Quebec
Facts            French only requirement for all public signs, posters, and commercial advertising challenged successfully under both Canadian Charter and Quebec
                 Charter. Only time the use of the s. 33 override power has been subject to judicial review.
Issues           1. Is the general use of the s. 33 override power legitimate?
Holding          1. Yes.
Ratio            Appellants contended that general use of s. 33 override power was not legitimate because it did not specify the sections of the Charter by their
                 content (rather than merely by their number) that the legislation was overriding. Argument that failing to do so helps the government avoid the
                 “political cost” that should accompany the use of s. 33.
                            Argument rejected because s. 33 “lays down requirements of form only, and there is no warrant for importing into it grounds for
                             substantive review of the legislative policy in exercising the override authority in a particular case.”
                            Use of notwithstanding clause is a valid exercise of authority – a legislature may not know with certainty what provisions of the
                             Canadian Charter may successfully be invoked against an Act
                            This would be unduly cumbersome for a legislature
                            However, s.33(1) must be interpreted to apply prospectively only, not retroactively. Retrospective application of An Act respecting the
                             Constitution Act, 1982 is, therefore, of no force or effect.
Comments

    A legislature’s use of s.33 has a five-year limit; it must be renewed to remain effective.
          Quebec created an “omnibus” override law in June 1982, making all of its laws operate notwithstanding ss.2 and 7-15; however, this override was not
           renewed.
    Lorraine Weinrib notes that the override provision can counter criticism of judicial review: it gives legislatures the last word.
          Hogg and Bushell cite s.33 as an opportunity for “dialogue.”
    However, s.33 has hardly ever been used.


Freedom of Religion
    “Freedom of conscience and religion” is listed as the first fundamental freedom in s.2(a).
    Religion is also protected indirectly elsewhere in the Charter:
          s.15: Religion is a prohibited ground of discrimination.
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          s.27: Multiculturalism
          s.29: Existing rights of denominational schools are protected.
          The fact that “the supremacy of God” is mentioned in the preamble!
    In Big M Drug Mart, Dickson CJC articulated the idea that “a truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and
     pursuits, customs and codes of conduct.”
    When assessing freedom of religion cases, courts have to apply a rational perspective to something fundamentally irrational. Really? Is this said somewhere??
    Can courts treat old, established religions differently from new religions or cults?
    Freedom of religion has both individual and collective aspects
    In Big M Drug Mart, Dickson CJC said that freedom of religion includes:
                “the right to entertain such beliefs as a person chooses,
                the right to declare religious beliefs openly and without fear of hindrance or reprisal,
                and the right to manifest religious belief by worship and practice or by teaching and dissemination.”
          Dickson CJC defined “freedom” in this context as “the absence of coercion or constraint, and the right to manifest beliefs and practices.”
                This seems to include both negative and positive rights: the state may be required to uphold freedoms.
                      e.g., in the O’Malley case, a Sears department store required a Seventh-Day Adventist employee to work on Saturdays. The court said that the
                       employer should endeavour to accommodate such beliefs. However, the employer’s duty was limited: it should not have to suffer “undue
                       hardship.” The employee also had a duty to facilitate this arrangement.
                      e.g., a prisoner with a vegetarian diet: the state would have to provide special treatment in order to provide equal enjoyment of rights.
                             However, there is also a concern that state accommodation of religion in situations like this can lead to state entanglement with religion.
                             There is also the possibility that Canadian secularism is tainted by a Judeo-Christian legacy.

Richard Moon, “The Secularization of Religious Freedom” (CBp.817)
    Early Western arguments for freedom of religion, from the time of the Reformation, assumed the existence of religious truth, but were opposed to the use of
     coercion in religious belief (Locke’s arguments – what if the state picks the wrong “true” religion? Coercion is self-defeating because of free will).
    Later, church and state were separated, but still in the context of a dominant Christian culture.
    In more recent times, the growth of agnosticism as well as religious diversity have led to a secular notion of religious freedom based on individual autonomy and
     identity.
           Agnosticism leads one to ask whether there should be such thing as freedom from religion.
           Diversity raises the question of how far the majority must go to accommodate minorities.
           Now there is often a focus on religious imposition rather than religious coercion.
    Freedom of conscience is an alternative to, or supplement of, religious belief – the freedom to hold moral views that do not necessarily rest on a religious belief.
    All this makes me wonder: is freedom of religion an outdated concept, misapplied in contemporary Western societies? It seems to me that many of these cases
     would be better understood in terms of accommodating cultural diversity. Diversity and pluralism are the real issues. The imposition of religion will never again
     be the “purpose” behind a piece of legislation, the way it was the purpose behind the Lord’s Day Act. But Christianity has left Canada with a set of traditions that
     may come into conflict with other traditions.
    Is the state required to compromise on its legislative goals in order to protect religious freedom? Prohibition on religious coercion sometimes seems to require
     the state to treat different religions even-handedly
Canadian Judeo-Christian roots may make it easier for Christians and Jews to describe their beliefs as “secular” – neutrality of Canada’s “secular” or “neutral” laws
may not in fact seem secular or neutral to members of other faiths.

R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295. (CBp.822)
Jurisdiction     Alberta
Facts            Big M Drug Mart stayed open on a Sunday, and was charged under the federal Lord’s Day Act. Big M challenged the constitutionality of the Lord’s
                 Day Act.
Issues           Did the Lord’s Day Act unjustifiably infringe on freedom of religion?
Holding          Yes.
Ratio            Dickson CJC emphasized that both the purpose and the effects of the legislation matter. In this case, the purpose of the Lord’s Day Act was found
                 to be religious, i.e., the observance of the Christian Sabbath. (There could be no “shifting purpose”: the Lord’s Day Act’s original religious purpose
                 from 1906 was not replaced by a secular one over time.) The Lord’s Day Act violated freedom of religion because it coerced minorities into
                 observing the Christian sabbath. Since the law’s purpose violated freedom of religion, it was unnecessary to look at its effects.
                 A purposive approach to freedom of conscience and religion is centred around the centrality of human dignity and individual conscience. A
                 minimum standard of this would be that the government cannot compel individuals to observe a specific religious practice.
                 Because the purpose of the legislation could not be justified, Dickson CJC did not undertake a full s.1 analysis. (This case came before Oakes.)
                 The claim that the Lord’s Day Act was secular also contradicted the federalism arguments. If the law was argued to have a secular purpose, it
                 would lose its federal criminal law “morality” justification, and it would fall under the provincial head of property and civil rights.
Comments         The SCC has said that strong parties shouldn’t be allowed to use the Charter to roll back protective legislation. What about the rights of retail
                 workers under pressure from their employers to work on Sundays?
                 Standing issue: It seems strange that a corporation (which doesn’t have a religion) could have invoked freedom of religion to protect its rights. In
                 general, corporations cannot be protected by section 2(a) because they don’t have religions or consciences.

Edwards Books and Art Ltd. v. The Queen, [1986] 2 SCR 713. (CBp.830)
Jurisdiction   Ontario
Facts          Edwards Books and three other stores (a fruit market, a fur shop, and a Kosher grocery store) were convicted under the Ontario Retail Business
               Holidays Act for having their stores open on Sunday.
Issues         Did the ORBHA unjustifiably infringe on freedom of religion?
Holding        No. (It was a violation of s. 2, but it was upheld as a reasonable limit under s. 1)
Ratio          Dickson CJC found that unlike the federal Lord’s Day Act, the ORBHA had a valid purpose, that of providing uniform holidays to retail workers (who

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                  happened to be predominantly women). However, it had the effect of violating the freedom of religion of Saturday Sabbath observers.
                  Dickson CJC then did a s.1 analysis. He found that the purpose was providing a day of rest was self-explanatory. As for the rational connection, the
                  Act was justified in singling out the retail industry (because of competitive pressure on it), and in establishing exemptions for some kinds of
                  businesses. In terms of minimal impairment, Dickson CJC noted the fact that exceptions were made for small businesses (with seven employees
                  or less) which closed on Saturday or Sunday. He found this preferable to several alternative arrangements he could think of. He upheld the ORBHA
                  because the means were well-designed to meet the objective.
                  Beetz J agreed with Dickson CJC in his result, but argued that the ORBHA did not violate freedom of religion, so the s.1 analysis was unnecessary.
                  Wilson J (dissenting) disagreed with Dickson CJC’s upholding of the ORBHA’s exemptions for small businesses. She didn’t like this patchwork
                  approach to the problem, protecting the religious freedom of some but not others. She would have preferred a scheme giving anyone the right to
                  open on Sunday rather than Saturday for religious reasons, and did not think that this alternative frustrated the government’s purpose of
                  protecting workers’ rights vis-a-vis their employers.
Comments          The Ontario legislature later amended the laws to match Wilson J’s dissent.

Syndicat Northcrest v. Amselem, [2004] 2 SCR 551 (Supplement Vol.2 p.81)
Jurisdiction    Quebec
Facts           Quebec Charter claim that an injunction to force removal of succah huts from the balconies of a condominium was in violation of religious freedom
                of the co-owners.
Issues          1. Was the injunction a violation of the co-owners’ religious freedom?
                2. Was the refusal by the syndicat justified based on the co-owners’ rights to enjoy their property and their rights to personal security?
                3. Did the appellants waive their rights to freedom of religion by signing the declaration of co-ownership?
Holding         1. Yes; 2. No; 3. Not answered.
Ratio           Iaccobucci J (McLachlin CJ and Major, Arbour and Fish JJ concurring) (majority):
                Freedom of Religion:
                Definition of Religious Freedom:
                Sincere belief having a nexus with religion, engendering a personal connection with the subject or object of an individual’s spiritual faith, not the
                conformity of the belief with established religious doctrine, is what is necessary to establish to benefit from the protections on freedom of religion.
                Infringement of Religious Freedom:
                Not every infringement of religious freedom is actionable – only those that are non-trivial are actionable. This is based on the idea that
                fundamental rights conflict. Even non-trivial infringements of rights to religious freedom may be upheld if they impact on the rights of others.
                Alleged Justification for the Limit on the Exercise of Freedom of Religion:
                Not justified on the grounds that the freedom of religion impinges on the freedom of enjoyment of property and security – in balancing these
                rights, the impairment on freedom of religion is significant, and the impairment on the respondents’ rights is, at best, minimal.
                Application to the Facts:
                The applicants have demonstrated that their religious beliefs were sincere and that they were significantly impaired. The respondents did not
                demonstrate that their rights to enjoyment of their property and personal security were infringed on significantly.
                There was no clear waiver of the appellants’ rights to freedom of religion. The intimation that the appellants should move elsewhere if they took
                issue with a clause restricting their right to religious freedom is “both insensitive and morally repugnant”.

                  Bastarache J (LeBel and Deschamps JJ concurring) dissenting:
                  The Scope of Freedom of Conscience and Religion:
                  Freedom of religion protects both religious beliefs and consequent religious practices. First step of analysis is to determine whether the belief of a
                  claimant is in accordance with the rites prescribed by his or her religion. Onus is on the person seeking to be excused from obeying an obligation.
                  The test is reasonable belief in the existence of a religious precept.
                  Second step is to establish, with inquiry that is as limited as possible, the sincerity of the individual’s belief.
                  The third step is to establish conflict between the practice and the rule, in a manner not trivial or insubstantial.
                  The condominium syndicat allowed them to have a communal succah – this was in keeping with their religious beliefs, even if it was not everything
                  they asked for. In allowing this, the syndicat was making a reasonable accommodation.
                  Even if the sincere belief of the applicants required them to build a succah on their own balconies, this right cannot be exercised in harmony with
                  the rights and freedoms of the other co-owners. The restrictions would thus be justified.

                  Binnie J, dissenting:
                  This is the use of religious freedom as a sword and not as a shield – the appellants are insisting that religious freedom gives them the right to break
                  their contractual obligations.
Comments

Multani v. Commission Scolaire, [2006] 1 SCR 256
Jurisdiction   Quebec
Facts          Multani was forbidden to wear a kirpan (religious dagger) to school, even when it was wrapped in cloth and worn in his underclothes.
Issues         1. Is the prohibition on the wearing of the kirpan an infringement on Multani’s freedom of religion under s. 2 of the Canadian Charter and under s.
               3 of the Quebec Charter?
               2. Can the infringement be justified pursuant to s. 1 of the Canadian Charter or s. 9.1 of the Quebec Charter?
               3. Does the decision infringe his right to equality under s. 15 of the Canadian Charter or s. 10 of the Quebec Charter?
Holding        1. Yes; 2. No; 3. Not answered.
Ratio          McLachlin CJ and Bastarache, Binnie, Fish, and Charron JJ:
               (Charron J:)
               Despite the decision’s individual nature, Charter law still applies.
               The legislature cannot pass a statute that infringes on the Charter -> hence, it cannot delegate such power to another administrative body through
               legislation. (Slaight Communications at pp 1077-78)
               The fact that a religion may be practiced differently by different people does not affect the validity of a claim of infringement.
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                                                                                          Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 92

                 Freedom of Religion:
                 “In order to demonstrate an infringement of his freedom of religion, Gurbaj Singh does not have to establish that the kirpan is not a weapon. He
                 need only show that his personal and subjective belief in the religious significance of the kirpan is sincere.” (para 37)
                 Appellant demonstrated sincerity of religious belief that he is required to wear the kirpan. (as in Amselem, para 46)
                 Refusal of Gurbaj Singh to wear a replica made of materials other than metal is not capricious, since he believes a wearing a metal kirpan is
                 required by his religion.
                 The interference was greatly significant: Gurbaj Singh attended a private school in order to comply with his religious beliefs: his right to attend a
                 public institution and observe his religion was denied by the council.
                 Section 1 Justification:
                 Importance of the Objective:
                 The objective, safety in schools, is sufficiently important to justify overriding a constitutionally protected right or freedom.
                 Proportionality:
                 Rational Connection:
                 Decision to prohibit wearing a bladed weapon has a rational connection to ensure a reasonable level of safety in schools.
                 Minimal Impairment:
                 The prohibition is not the minimal impairment. There is no evidence that kirpans have ever been used in school violence. The appellant is not a
                 violent individual. The evidence does not support an argument that wearing the kirpan will result in a proliferation of weapons in schools. The
                 argument that the kirpan is a symbol of violence is a misunderstanding of its religious significance, and is disrespectful to the Sikh community.
                 Equating it with the desire of other students to carry a knife is also taking a simplistic view of freedom of religion (compare chador to a baseball
                 cap).
                 The deleterious effects of a total prohibition thus outweigh its salutary effects. (Dagenais v. CBC refinement to Oakes explicitly satisfied.)
                 Section 15:
                 Not necessary to answer because s. 2 violation has been established and not justified under s. 1.

                 Deschamps and Abella JJ:
                 [Discussion of standard of review (administrative vs. constitutional law)]
                 Council of commissioners did not sufficiently consider either the right to freedom of religion or the proposed accommodation measure; deferred to
                 the schools Code de vie; this was unreasonable.

                 LeBel J
                 Evidence in this case does not show a prima facie infringement of the right to security of the person. This makes it necessary to turn to s. 1 under
                 the Charter for justification of the limit imposed.
                 Standard of minimal limitation of the guaranteed right was not satisfied, the prohibition was thus not justified under s. 1.
Comments

   Two themes in freedom of religion:
         1. The nature of the right
                   The court takes a broad and generous approach, including belief, declaration and practice.
                   This tends to be articulated in individualistic terms, but the collective dimension is underscored in both anti-discrimination and parental
                    consent cases.
         2. The nature of the violation
                   In Big M Drug Mart, there was a purposive violation: The government clearly intended to interfere with religious freedom. The legislation was
                    struck down.
                   In Edwards, and Baby Sheena, there were merely effective violations: Secular purposes interfered with religious freedom. In these cases the
                    legislation was upheld.
   Freedom of religion is not absolute.
             In the Baby Sheena case, the parents’ practice of their religion was limited (Jehovah’s Witnesses refusing a blood transfusion to their baby daughter).
        To what extent are the limits on freedom of religion internal to the right?
             In Big M Drug Mart, Dickson CJC had added the proviso that religious practices were protected only if “such manifestations do not injure his or her
              neighbours or their parallel rights to hold and manifest beliefs and practices of their own.”
                   This limitation was later made part of s.1, not part of s.2(a) itself:


Freedom of Expression
   McLachlin J’s dissent in the Keegstra case provides a good summary of the three main rationales for freedom of expression:
              1. Political process/democracy
              2. Search for truth/marketplace of ideas
              3. Inherent value/self-actualization




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                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 93

Richard Moon, “The Constitutional Protection of Freedom of Expression” (2000) (CBp.896)
      Moon lists the same three values as McLachlin J: democracy, truth, and individual autonomy.
      The first two of these have an instrumental account of freedom of expression; the third has an intrinsic account.
            These justifications overlap – the wide variety of arguments offered to justify the constitutional protection of freedom of expression suggests the rich and
             varied roles that expression plays in the life of the individual and the community
      However, all three values rest on a premise that “human agency flourishes in communicative interaction.” All three can be rewritten in terms of social and
       community life, and this transcends the “instrumental/intrinsic” dichotomy.
            It also transcends the false “speaker-centred/listener-centred” dichotomy – Section 2 protection of freedom of expression unties these two perspectives
             and protects them both from interference – speaking and listening are the “joint activity of creating meaning”
            “The established accounts of the value of freedom of expression are described as either instrumental or intrinsic or, more simply stated, as result-oriented
             or process-oriented.”
            The intrinsic argument for the justification of freedom of expression holds that freedom of expression protects the individual’s fundamental liberty and
             autonomy
            The instrumental arguments recognize that freedom of expression is good for society as a whole
Moon says that we value freedom of expression because fundamentally, it is the way that citizens participate in collective self-governance – the exchange of ideas is
vital to this process


Scope and Limits of Freedom of Expression
   Early judgments: SCC adopted a broad view of scope of s. 2(b) – “any (non-violent) activity that conveys a message is expression under s. 2(b)
         Dolphin Delivery was the first s.2(b) case that came to the SCC. The SCC held that picketing (and any non-violent form of conduct) could be expression.
   Owen Fiss, Liberalism Divided: Freedom of Speech and the Many Uses of State Power, suggests that the debate over freedom of speech is a reflection of
    contemporary liberalism’s conflict between liberty and equality, or between two conflicting definitions of liberty (forms of expression such as hate speech or
    pornography silence disadvantaged groups and thus deprive them of their freedom of expression – thus, limits on certain expression actually promotes other
    expression, and vice versa)

Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd., [1986] 2 SCR 573 (CBp.901)
Jurisdiction     British Columbia
Facts            Union picketers planned to set up secondary pickets at the workplace of Dolphin Delivery, a contractor for Purolator. Dolphin delivery got an
                 injunction from the Supreme Court of BC preventing the picketing. Trial judge had found that the primary purpose of the picketing was to injure
                 the plaintiff rather than to exercise freedom of expression.
Issues           1. Is an injunction issued under common law rules concerning picketing subject to Charter review?
                 2. Is it a matter of freedom of expression under s. 2(b)?
                 3. Is the restriction a justifiable limit under s. 1?
Holding          1. Yes; 2. Yes; 3. Yes.
Ratio            McIntyre J (Dickson CJC and Estey, Chouinard, Le Dain JJ concurring):
                 Peaceful picketing is freedom of expression that is subject to Charter protection under s. 2.
                 Justifiable limitation of secondary picketing under Section 1:
                 Balance between competing claims of protection from tortious injury and freedom of expression must be found. In this case, the injunction was
                 temporary, and because the expression was directed towards a third party who had nothing to do with the main dispute, it was reasonable.

    BCGEU v. British Columbia (AG), [1988] 2 SCR 214 – court workers in BC had gone on legal strike and were picketing the courthouse. McEachern CJ issued an
     injunction prohibiting the picketing, which was appealed on the grounds of freedom of expression. Court of Appeal upheld the injunction as a s. 1 limitation on
     freedom of expression.
    UFCW, Local 1518 v. KMart Canada Ltd., [1999] 2 SCR 1093 – striking workers were distributing leaflets at entrances of nonunionized stores urging a boycott –
     Labour Relations Board held that this was secondary picketing; SCC held that this was an unjustifiable limitation on freedom of expression, distinguishing
     leafleting (“informed and rational discourse”) from labour picketing
    RWDSU, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8 – reinterpretation of common law rules of secondary picketing, holding that it is
     generally lawful except when it involves tortious or criminal conduct – rejection of suggestion that expression in labour context should be treated as less
     important than expression in other contexts (distinguishing from Dolphin Delivery because secondary picketing was assumed to be inducing a tort)

Commercial Advertising
  In the case of Ford v. Quebec (1988) (see p.109 of this summary, or CBp. 1253 for entire ruling), the SCC held that freedom of expression includes commercial
   expression – commercial signs required to be exclusively in French – held to be an unjustifiable limitation of freedom of expression because it was not a minimal
   impairment – no justification for prohibition of other languages
         o    Also rejected argument that freedom of expression does not include freedom to express in the language of one’s choice – held that freedom of
              expression is so intimately related to language that limiting the language is effectively a violation of freedom of expression

Irwin Toy Ltd. v. Quebec (AG), [1989] 1 SCR 927. (CBp.907)
Jurisdiction      Quebec
Facts             The Quebec Consumer Protection Act banned advertising aimed at kids under age 13. The Office de la protection du consommateur said that Irwin
                  Toy had violated these provisions, and Irwin Toy brought an action claiming that the provisions were ultra vires the province and inconsistent with
                  the Quebec Charter. Once the Charter came into force, Irwin Toy was allowed to amend its actions to take the Charter into account.
Issues            Did the impugned provisions of the CPA unjustifiably infringe on freedom of expression?
Holding           No.
Ratio             Dickson CJC, Lamer and Wilson JJ set out a doctrinal structure for freedom of expression cases:
                  1. Did the activity count as “expression”?
                              This test is very broad: “…if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within
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                                                                                               Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009         p. 94

                             the scope of the guarantee.”
                  2a. Did the government’s action have the purpose of restricting freedom of expression?
                             Here the judges make a distinction between restrictions on forms of expression (e.g., anti-pamphleting laws) and restrictions on the
                             physical consequences of forms of expression (e.g. anti-littering laws which affect pamphleting).
                  2b. Did the government’s action have the effect of restricting freedom of expression?
                             The plaintiff must state her claims with regard to one of the three principles underlying freedom of expression, demonstrating “that her
                             aim was to convey a meaning reflective of the principles underlying freedom of expression.” – those principles being (1) seeking the
                             truth; (2) participation in social and political decision-making; (3) individual self-fulfillment and human flourishing.
                  The judges found that the advertising counted as expression, and that it was restricted by the CPA. So the real test was under s.1. The judges found
                  that the legislation had a valid objective, i.e., protecting children from manipulation. Although the social science evidence of harm was uncertain,
                  the judges said, “This Court will not, in the name of minimal impairment, take a restrictive approach to social science evidence and require
                  legislatures to choose the least ambitious means to protect vulnerable groups.”
                  Legislature’s conclusion that a ban on commercial advertising directed to children was the minimal impairment was accepted by the court as
                  reasonable based on the evidence available and in light of the government’s objectives.

                  McIntyre J (Beetz J concurring) dissenting:
                  Disagreement as to the s. 1 justification – valid and substantial objective not established (no evidence that harm is done to children by advertising),
                  nor is proportionality established (prohibition makes no attempt at achievement of proportionality).
Comments          S. 7 challenge rejected because corporations are not entitled to protection of life, liberty and security of the person.
                  Federalism challenge rejected because CPA was intra vires provincial jurisdiction and did not significantly intrude on federal powers of criminal law
                  or broadcasting.



Life, Liberty and Security of the Person
    S. 7 appears at the outset of the section on “legal rights”: ss. 7-14 deal with criminal procedure issues.
    It is interesting to compare to the US “due process clause,” which protects “life, liberty and property.”
            In the Lochner case (1905), a US court struck down labour legislation for interfering with workers’ “liberty” without due process.
                  Paradigm example of the need for judicial restraint and the danger that arises when judges read their own personal economic and social values into
                   the terms of constitutional guarantees.
            Administrative Law: There is also the idea of “natural justice,” which says that if someone is affected by state action in a distinct and particular way, they
             should be entitled to a hearing. They should also be entitled to have the case decided by independent, impartial officials.
    In Canada, liberty generally means freedom from physical restraint or from being compelled to submit to fingerprinting, to produce documents, etc.
            The SCC rejected the idea that “liberty” includes economic liberty or freedom of contract.
            Political liberties are protected elsewhere in the Charter; they are not covered by s. 7.
    The right to property was deliberately omitted from s. 7 (and from the Charter as a whole), although property is still protected (vis-à-vis the federal government)
     by the Canadian Bill of Rights.
    “Everyone” in s. 7 includes:
            Every person on Canadian soil, including undocumented immigrants.
    “Everyone” in s. 7 does not include:
            Corporations (this was decided in Irwin Toy)
            Foetuses (see below)
    The idea of “the principles of fundamental justice” evolved from “natural justice,” (idea of procedural fairness – the right to be heard, the right to a trial, etc.). It
     was unclear whether “fundamental justice” was purely procedural, or substantive too, until the Motor Vehicles Reference:

To establish a violation of the S. 7 right to LLSoP, the court must
     1. Examine the scope of the right to LLSoP (threshold inquiry);
     2. Examine the nature and scope of fundamental justice; and,
     3. Examine the applicability of s. 1 of the Charter.

Principles of Fundamental Justice – A Law Must Be:
      1. Substantive fairness.
      2. Procedural fairness.

Reference re Section 94(2) of the Motor Vehicle Act (BC), [1985] 2 SCR 486. (CBp.1073)
Jurisdiction        British Columbia
Facts               The BC Motor Vehicles Act imposed a fine and imprisonment on anyone who drove while their licence was suspended, regardless of whether
                    they knew about the suspension. No defences were allowed.
Issues              Did the impugned provision deprive persons of their liberty in a way not in accordance with the principles of fundamental justice?
Holding             Yes.
Reasoning           Lamer J:
                    “Life, liberty and security of the person” was a threshold inquiry. “Principles of fundamental justice” was meant to be a substantive test. S. 7 is
                    meant to be interpreted broadly: “It would be incongruous to interpret s. 7 more narrowly than the rights in ss. 8 to 14.” (1075) (s. 7 was
                    certainly not just meant to be an umbrella to introduce ss. 8-14. ss. 8-14 were specific illustrations of the general principle in s. 7.) However,
                    Lamer J shied away from defining the principles of fundamental justice, except to say that they “are to be found in the basic tenets of the legal
                    system.”
                    He held that “principles of fundamental justice” had two prongs:
                    1. Is the law substantively fair? (Should we have a law at all?)
                    and
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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 95

                      2. Is the procedure fair?
Comments              Hogg really doesn’t like Lamer’s idea that s. 7 is a kind of general residual clause for all of the “legal rights” section.
                      Hogg points out that the distinction between procedure and substance is indeterminate, and this decision at least spares us from having to read
                      a whole bunch of cases on that issue.
                      This is the first case dealing with s. 7.

    The Gosselin case (see below) dealt with a woman who received a very small social assistance cheque. Arbour J, dissenting, found that citizens had a positive
     right to basic welfare entitlements.
          According to Arbour J dissenting, s.7 should be interpreted to include two sets of rights:
                      “Life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental
                       justice”
                      “Life, liberty and security of the person” per se, without reference to fundamental justice.
                This reading is supported by the French version of the text, which uses a semicolon rather than the word “and.”
          However, the mainstream interpretation of s.7 is as one single set of rights, with a qualification.

R. v. Morgentaler, [1988] 1 SCR 30. (CBp.1077)
Jurisdiction     Ontario
Facts            Morgentaler and two other doctors set up an abortion clinic in Toronto, violating section 251(1) of the Canadian Criminal Code, which criminalized
                 taking steps to cause an abortion. Punishment was imprisonment for life. Section 251(4) created an exception for abortions “in an accredited or
                 approved hospital if the therapeutic abortion committee for that hospital has by certificate in writing stated that in its opinion the continuation of
                 the pregnancy would or would be likely to endanger her life or health and if the abortion was performed by a qualified medical practitioner who
                 was not a member of the committee.
Issues           Does 251 of the Criminal Code violate the constitutionally protected Section 7 right to security of the person? (Everyone has the right to life,
                 liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.)
Holding          Yes.  Morgentaler.
Ratio            Dickson CJC, for the majority, took the least controversial route, overturning the law for procedural reasons. He found that the therapeutic
                 abortion committee requirement infringed security of the person by interfering with “a woman’s bodily integrity in both a physical and emotional
                 sense.” He also appears to have alluded to the idea of choice, if only in passing: he talked about the Criminal Code provisions in terms of “criteria
                 entirely unrelated to her own priorities and aspirations” and “the removal of decision-making power.”
                      Regarding Security of the Person: “In summary, s. 251 is a law which forces women to carry a foetus to term contrary to their own priorities
                       and aspirations and which imposes serious delay causing increased physical and psychological trauma to those women who meet its criteria.
                       It must, therefore, be determined whether that infringement is accomplished in accordance with the principals of fundamental justice,
                       thereby saving s. 251 under the second part of s. 7”
                      Regarding Fundamental justice: “the absence of any clear legal standard to be applied by the (therapeutic abortion) committee in reaching its
                       decision is a serious procedural flaw”. The court held that the delay and the practical barriers to obtaining a judgment from a therapeutic
                       abortion committee made it practically impossible for many women to obtain approval for an abortion. This practical impossibility was in
                       conflict with the principles of fundamental justice.
                      “State interference with bodily integrity and state-imposed psychological stress, at least in the criminal law context, constitute a breach of
                       security of the person.” (p. 1078)

                  Beetz J wrote a concurring judgement in which he held that the law did conform to the principles of fundamental justice, but was not justified
                  under s.1. He did not talk about autonomy and decision-making, only the risk of some women being denied access to abortion because of
                  circumstances.
                      Life and health of women who seek abortions is sufficiently important to warrant constitutional protection.
                      Choices available to women who are pregnant, but want an abortion are (1) try to get a therapeutic abortion (with all the delays that go with
                       seeking the therapeutic abortion); and (2) get an abortion without seeking approval first, but  subjected to criminal sanctions
                      Delays caused by 251(4) pose serious medical risks to women breach of security of the person. The structure of the administrative process
                       cause unnecessary delays and should be considred a violation of fundamental justice

                  Wilson J (the first woman appointed to the SCC, and the only one at this point) wrote a concurring judgement, focused on substantive issues. She
                  held that s.251 violated women’s liberty as well as their security of the person. Her judgment had a strong feminist tone, including an assertion
                  that it was probably impossible for a man to respond to such a dilemma.
                       Wilson J’s judgment contained both liberal and communitarian elements. On one hand, she wrote about an “invisible fence over which the
                        state will not be allowed to trespass.” On the other, she wrote about “the way the woman thinks about herself and her relationship to others
                        and to society at large.”
                       “Human dignity – individuals have the right to choose...”
                       All of the majority judges agreed that the law could not be saved by s.1. Wilson wrote that the state’s interest in protecting the foetus would
                        grow stronger as the pregnancy progressed.
                       Tackle primary issue first: The Right of Access to Abortion
                       Focuses on the LIBERTY aspect of section 7
                       Liberty is the right to make fundamental personal decisions without interference from the state.
                       Impugned provision takes the choice away from the women and puts it in the hands of a committee.
                       Also deals with the SECURITY OF THE PERSON aspect: protection of both physical and psychological aspects of the woman’s health.
                       Denial of liberty takes away the decision making power over what a woman will do with her body.

                  MacIntyre J and La Forest J dissented.
                     Interfering with women’s choice means claiming women have a right to an abortion.
                     There is no language, structure, history, tradition or underlying philosophy of society that women have the right to have abortions.
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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009       p. 96

Comments               The arguments about delays seem to beg the question. If it was only a process issue, why strike down the law? (cf. Little Sisters) This is why
                        Wilson J believed it necessary to confront the problem head on.
                       A later bill, which was never passed, would have required a doctor to have formed the opinion that the woman’s health was threatened. This
                        would have been an easy defence to any charge, but it would stop short of being a woman’s choice.
                       Some argue that abortion should have been dealt with under equality rights.
                       Hogg says that the s.1 analysis was superfluous to this case; it just repeated arguments that had been made in the s.7 analysis.
                       Even pro-life people had a problem with the therapeutic abortion committee – the delays inherent in that system jeopardized the life/health
                        of women with complicated/problematic pregnancies, further impinging on their life, liberty, and security of the person.
                       Justice Dickson’s arguments about state interference through criminal law on the security of the person were also used in the Insite case
                        (Vancouver safe injection site, closed down by ministerial discretion).
                       Wilson J first woman appointed to SCC. Her judicial views are hard to pin down. Situates women’s rights in a specific context – personal
                        autonomy in matters intimately related to private life. (p. 1086) – “impossible for a man to respond, even imaginatively...” (This is out of sync
                        with her classical liberal view on other things)... “Human rights may have evolved in the context of men’s needs... only now are they coming
                        to recognize women’s..."

    In the US context, Carol Gilligan has critiqued the way the abortion debate has been framed as an adversarial battle between the woman’s rights and the rights
     of the foetus. This does not reflect women’s understanding of their connection to the foetus. However, in order to enter the legal system, women had to
     pretend not to care about the foetus.
    Foetuses are not included within “everyone” under s.7 (or any other Charter right). This was decided by the Manitoba Court of Appeal in Borowski v. A.G.
     Canada, a pro-life challenge to s.251. While Borowski was preparing to appeal, the SCC decided Morgentaler, and then declined to hear Borowski’s appeal.

Rodriguez v. British Columbia (A.G.), [1993] 3 SCR 519. (CBp.1091)
Jurisdiction     British Columbia
Facts            Rodriguez suffered from Lou Gehrig’s disease. She sought a declaration that she was entitled to help committing suicide when her condition
                 became unbearable and if she was unable to commit suicide on her own. S. 241(b) made it a criminal offence to help someone commit suicide.
Issues           Did S. 241(b) of the Criminal Code infringe s.7?
Holding          No.  B.C.
Ratio            Sopinka J held that liberty and security of the person had to be balanced against other principles. These had to be legal principles, not just a vague
                 moral ideals. (This was part of the definition of “fundamental justice.”) In this case, he found that the purpose of s.241(b) was preserving the
                 sanctity of life and protecting the vulnerable—which were both legal principles. He acknowledged that s.241(b) impinged on Rodriguez’s security of
                 the person: This case confirmed that questions of bodily integrity were governed by “security of the person.” However, Sopinka J found that the
                 law was not contrary to the principles of fundamental justice. He held that there was a meaningful distinction between assisted suicide and
                 overdoses of painkillers in the guise of “palliative care” or natural death through refusal of treatment.
                      Our society has a deeply rooted belief that human life is sacred and inviolable. Sanctity of life excludes self-imposed death as well as the help
                       of others in carrying out death. 241 protects LIFE so 241 does not breach that part of LLSoP (section 7).
                      Life Liberty and Security of the Person: Choice in carrying out death is compromised by 241. 241 deprives Rodriguez of her autonomy, over
                       her person, causes her physical pain and psychological stress in a manner which impinges on her security of the person.
                      Question is now, does 241 conflict with fundamental justice? (NO)
                      Issue: whether the blanket prohibition under 241 is arbitrary or unfair in that it is unrelated to the state’s interest in protecting the
                       vulnerable, and that it lacks a foundation in the legal tradition and societal beliefs which are said to be represented by prohibition
                             o      Passive/active death debate  either side can be persuasively defended.
                             o      Risk of abuse: some may feel they are a burden on their families and be persuaded into assisted suicide as a result
                             o      Various medical associations’ stance is against assisted suicide
                             o      Concerns about abuse of assisted suicide  cannot say 241 is unfair or arbitrary, and does not violate fundamental justice

                  McLachlin J, dissenting, argued parallel to the Morgentaler case, that s.241(b) deprived Rodriguez of security of the person, because it denied her
                  the right to make decisions surrounding her own body. She held that this was not in accordance with the principles of fundamental justice. A law
                  that is “arbitrary” or “unfair” cannot be in accordance with the principles of fundamental justice. In this case, physically disabled people were
                  denied a choice that was available to others.
                  McLachlin J held that countervailing principles (floodgates arguments, protection of people who might be killed) were not relevant to a s.7 analysis
                  (because fundamental justice is about the individual whose rights are being limited, not about society in general) —they should be saved for s.1. In
                  s.7, the burden of proof was still on the claimant.
                        Suicide is not criminalized, but assisting it is.
                        Question: does 241 comport with fundamental justice?
                               o     Fundamental justice: if the limit to assisted suicide is arbitrary, it may be that it violates fundamental justice.
                               o     The fact that letting Rodriguez access assisted suicide might cause some to abuse the exception should not prevent Rodriguez
                                     from being granted it herself. It is not appropriate to judge her case based on what others might do as a result of the ruling.
                                     There’s already a prohibition on murder. Bringing undue influence upon a vulnerable person is still prohibited.
                               o     Argument that assisting in killing or killing is morally and legally wrong FAILS because self-defense killing is permissible. Thus,
                                     special circumstances provide exceptions to the rule. This is a special circumstance.
                               o     Passive/active death debate  arbitrary distinction.

                  Lamer CJC also dissented, arguing that s.241(b) discriminated on the basis of physical disability—he would have overturned it for violating equality
                  rights. He would have suspended the invalidity for one year, granting Rodriguez a constitutional exemption in the meantime.
Comments               This case was almost entirely about substantive issues.
                       The court hasn’t resolved the issue of whether to balance countervailing principles under s.7 or only under s.1.
                       Hogg uses this as an example of the “broader” approach to “the principles of fundamental justice,” considering societal values, not just the
                        principles of the legal system.

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                                                                                              Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009        p. 97

                       Rodriguez went and received assisted suicide anyway, and the people who helped her were never prosecuted.
                       P. 1094: “Discerning the principles of fundamental justice... is not an easy task. A mere common law rule does not serve to constitute a
                        principle of fundamental justice... principles upon which there is some consensus... they must be legal principles.”
                       P. 1098: “What are the principles of fundamental justice?” – sufficient to note that a legislative scheme which limits the right of a person to
                        deal with her body in the way that she chooses – any particular limit will be arbitrary if it is not consistent with the objective that lies behind
                        the legislation.

    In Suresh (2002) (CBp1103), the SCC was asked whether the government could deport a refugee to a country where he was likely to be tortured.
          The SCC here seemed to minimize the role of s. 1 in s. 7 cases—it said that s. 1 should only be used in exceptional circumstances (like war).
          Generally, the court has held that s. 1 can not be used to justify a breach of s. 7. If a law is not in accordance with the principles of fundamental justice, it
           cannot be justified. The SCC has used s. 1 analysis in s. 7 cases, but according to Hogg, it has never been used by a majority to justify a breach of s. 7.)
          Balancing – being deported when that risks torture – violation of Canadian and international norms vs. ministerial discretion – sufficient procedural
           protections MUST be accorded (hearing, etc.) so that the minister has adequate knowledge of the risk.

Gosselin v. Quebec (Attorney General), [2002] 4 SCR 429 (Supplement Vol. 2 p. 236)
Jurisdiction        Quebec
Facts               Full welfare benefits not allowed to under-30 recipients unless they participate in workfare programs. Programs not available to all under-30
                    welfare recipients, not available continuously.
Issues              Threat to life, liberty and security of the person?
Holding             No.
Reasoning           Gosselin RE. Section 7:
                    Social and Economic Rights issue
                     No s.7 infringement, even before ‘the principles of FJ’.
                     Courts reluctant to read positive social and economic rights into ‘life, liberty, security of the person’ under s.7.
                    McLachlin decided that this was not the case to recognize a positive right to social assistance. There’s a question as to whether s.7 can be
                    invoked outside of the criminal law context or more generally “involved in a legal process.”
                    • Equal benefit and equal protection of the law in Bliss – discriminatory claim…
                    Arbour dissent
                     In a modern context constitutional documents should protect basic social rights.

                      Another possible grounds for eco/soc rights might be s. 15. (see below)
Ratio                 Section 7 does not cover economic and social rights.
Comments               Sheppard: Canada a signatory of International Covenant on Economic and Social Rights. QC Charter mentions eco/soc rights.
                         Charlottetown considered including eco/soc rights in constitution. But none of these were meant to be justiciable.

    Court has refused to exclude social and economic rights from the ambit of s. 7, but lower courts have almost uniformly held these issues injusticiable, preferring
     that the legislature handle such issues, rather than unelected judges

D. Wiseman, “The Charter and Poverty: Beyond Injusticiability”
    “Holding poverty claims injusticiable has a number of serious consequences. In the first place, it means that neither the Charter nor the courts can engage some
     of the most egregious threats to the equality, human dignity, and personal security of many of the most vulnerable and disadvantaged people and groups in
     Canadian society, especially women.”
    “... the refusal of courts to recognize that poverty-related claims implicate the fundamental values protected by the Charter may undermine other forms of
     social and political advocacy on poverty issues...”
    “... holding poverty claims injusticiable creates an inconsistency with the international human rights obligations to which Canada has committed itself.”
    Poverty is treated too much like exclusively a policy question, and not a fundamental human rights question.



Equality Rights
    Pre-Charter jurisprudence had a very limited notion of equality, basically emphasizing equal administration of the law.
    The original legal response to overt discrimination (in the 1950s and 1960s) was anti-discrimination laws, with an emphasis on equal treatment.
         This is still the first focus of the law.
    The second wave of reform went further, rejecting the “sameness” paradigm.
         Martha Minow wrote on the “difference” dilemma: the stigma associated with asserting and articulating a difference versus the harm associated with not
          asserting a difference.
         The same laws can affect different people differently, even without any intention of discrimination: “adverse effect discrimination.”

NOTES:
          Equality before the law
          Equality under the law
          Equal protection of the law
          Equal benefit of the law
          Without discrimination
          Based on (Enumerated grounds)




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                                                                                           Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009      p. 98

M. Schwartzschild, “Constitutional Law and Equality” (1996) (CBp.1133)
        Introduction
               o    No two things are exactly alike: so what does equality mean? Equal respect, treatment, rights, property? Equality among individuals or among
                    groups?
               o    Who is to be treated equally to whom? With respect to what?
        The Enlightenment and its antecedents
               o    Equality is a salient enlightenment idea, but what does it mean? Rejection of the idea that a person’s worth identity and destiny should be
                    bound by birth and kinship. (See Susan Boyle v. Simon Cowell)
               o    High value on the individual as a person with natural rights. Equal rights before the law, but not necessarily equal outcome in life.
        Liberty and Equality Under the Constitution
               o    Idea of civic equality: it allows for personal freedom under the Constitution
               o    Like economic freedom: freedom to differentiate oneself economically
               o    Equality coexists with inequalities of condition that freedoms foment.
               o    Supreme worth of the individual: EQUAL RIGHTS, means respecting unequal outcomes due to exercise of equal rights.

W. Black and L. Smith, “The Equality Rights” (1996) (CBp.1135)
         (b) Bases of Comparison
                 o   Must examine equality in terms of PEOPLE and to the TREATMENT they receive
         (i) Comparison of people and groups
                 o   Claimants argue that others are treated more favorably. (e.g. gays say heteros are treated more favourably in terms of spousal benefits)
                 o   Sometimes the basis of comparison is easy, since a law might target a specific group and disadvantage them
                 o   Important question: is comparison between individuals or groups?
                 o   Section 15 goes beyond this, because it LISTS GROUNDS of discrimination, implicating groups distinctions.
                 o   Comparison of groups: rules might disproportionately impact a certain group of people (e.g. job requirements for minimal height and weight
                     might exclude many women)
                 o   Selecting groups for comparison means oversimplifying since we must select only certain characteristics to compare.
         (ii) Comparison of treatment and consequences
                 o   Must determine what counts as equal treatment
                 o   UNIFORM treatment is not equal treatment (See Andrews)
                 o   We must make moral and political choices of what treatment to consider
                 o   Identical treatment may mask unequal consequences.
                 o   We must ask what it means to have equal treatment across the board: it may create unequal outcomes for certain people: e.g. religious
                     minorities who may not be able to exercise their religious practices due to equal treatment across the board .  Gave rise to a duty to
                     accommodate religious minorities (See Multani, Amselem)
         (A) Removal of Conditions of Subordination or Disadvantage (MacKinnon)
                 o   Criteria for measuring equality that deals with unique conditions of groups that experience persistent disadvantage: e.g. disadvantages for
                     women often do not affect men.
                 o   Proposal: view equality issues as issues of dominance and submission: MacKinnon.
                 o   Retains an element of comparison: of relative social, political and economic status of disadvantaged people. Goal is to eliminate systemic
                     sources of subordination.
         (B) Creation of Conditions for Self-Fulfillment
                 o   Equality might also be defined in terms of self fulfillment, developing potential, and participation in society
                 o   Addressses the equality protection to groups that face unique conditions and obstacles
         (C) Equal Concern and Respect (R Dwrokin)
                 o   Instead of comparing consequences, focus on decision making process itself: Does the decision making process include those whom the
                     decision will affect?
                 o   Right to treatment as an equal vs. right to equal treatment
                 o   Defense of affirmative actions programs  equality and human dignity

W.S. Tarnopolsky, “The Equality Rights” in Walter S. Tarnopolsky and Gerald-A Beaudoin, The Canadian Charter of Rights and Freedoms (Scarborough,
ON: Carswell, 1982), at 399-401 (footnotes omitted) (CB 1139-1141)
        Equality Before thee Law in United Kingdom Constitutional Law
               o    Dicey: “Equality before the law” as a fundamental characteristic of the UK Constitution
               o    “Rule of law excludes the idea of any exception of officials or others from the duty of obedience to the law which governs other citizens or from
                    the jurisdiction of the ordinary tribunals”
               o    More modern definition by Marshall: implies equality of state and individual before the law.
               o    Roncarelli v. Duplessis: rule of law includes equality before the law.
               o    Procedural equality: laws should be equally administered.

Notes after Tarnopolsky:
          14th amendment of US Constitution: equal protection before the law clause does not contain a list of prohibited grounds of discrimination.
          US Bill of Rights did not mention equality  post civil war, it was included. Brown v. Board of Education: “separate but equal” is “inherently unequal” and
           “has no place” in the field of public education.
          Three tiered approach to review of legal classification:
                 o     Strict scrutiny: strike down classifications that do not achieve compelling government objective
                 o     Classifications on the basis of gender: legislation is dead unless it can show it serves a compelling social interest.
                 o     Minimal scrutiny: will uphold law if classification is reasonably related to a legit. government interest
          International human rights instruments influenced the design and interpretation of the Charter

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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009     p. 99

Section 15 and Substantive Equality:

W.S. Tarnopolsky, “The Equality Rights in the Canadian Charter of Rights and Freedoms” (1983), 61 Canadian Bar Review 242, at 247-253 (footnotes
omitted) Casebook 1141-1143
         From section 1 of the Canadian Bill of Rights to Section 15 of the Charter
              o     Section 1 of the Bill of Rights: non-discrimination clause and ‘equality before the law’
              o     Main focus of SCC was ‘equality before the law’
              o     Only case that found legislation was contrary to ‘equality before the law’ was the Drybones case
                               Offense for Indians to be intoxicated off reserve  contravened “equality before the law
                               No individual or group is to be treated more harshly than another under the law
              o     Lavell case:
                               Woman lost Indian status because she married non-Indian man. Men Indians don’t lose status if they marry non-Indian women.
                                            Not inequality because all women were treated the same in this circumstance. Distinction between equality before the
                                             law and equality under the law.
              o     Section 15 now includes reference to equality “under the law”
              o     Section 15 also includes equal benefit of the law: Bliss case:
                               Bliss was pregnant, could not claim mat-leave benefits because she had not worked the required 10 weeks to gain mat-leave. Court
                                held that it did not violate “equality before the law” because it did not involve denial of equality of treatment in the administration
                                and enforcement of the law
              o     This brief summary shows how SCC limited “equality before the law” on one hand and “equal benefit of the law” on the other. Now Section 15
                    includes both.

D Gibson, The Law of the Charter: Equality Rights (Scarborough, ON: Carswell, 1990), at 42-45 (footnotes omitted) Casebook 1143-1144
         Equality provisions came as a result of Special Joint Committee recommendations:
               o     Expanding guarantee of equality to include “under the law” and “equal benefit of the law”
               o     Include disability as prohibited grounds
               o     Leave door open to analogous grounds by including “in particular”
               o     Affirmative action program
               o     Change everyone to every individual to exclude corporations
         Make constitutional interpretation consistent with the multicultural heritage of Canadians
         Male and female equality under section 28

P Hughes, “Recognizing Substantive Equality as a Foundational Constitutional Principle” (1999), 22 Dalhousie LJ 5, at 21-27, 38-39, 43-46, and 49
(footnotes are nowhere to be found) Casebook 1145-1149
         Equality  recognized as important in Canadian statutes, policies, practices, jurisprudence
                o     Examples: religious minority protection in Constitution Act 1867, Bill of Rights and Human Rights Instruments, ss. 15, 28, 35 of Constitution Act
                      1982.
         Understanding of equality has evolved:
                o     Beyond looking at the surface inequality, we must look at subtle forms of inequality too
                o     To ignore subtle systemic discrimination “may in practice serve to legitimize” it.
         High degree of commitment to equality in Canadian society.
         Same with respect to cultural differences: asserts the value of groups possessing and maintaining their distinct cultures within the larger community:
          multiculturalism encourages cultural preservation as best they can.
         Recognition of difference is, arguably, a fundamental governing principle of Canadian Society. Substantive equality, too.
         Substantive equality
         Difference among people might require differences in treatment in order to achieve equality
         Eliminate gap between powerful and powerless.
         “Affirmation of difference”  substantive equality
         Requires appreciation of flexibility and overlapping nature of identity and the distinction between an externally imposed and internally derived identity.
          Self is a text with a multitude of discourses. (A person can be many different things at once: elderly economically disadvantaged disabled homosexual
          aboriginal transvestite, for example)
         Implications of “taking account of difference:
                o     Recognized different views and approaches, needs, experiences
                o     Mainstream approach is open to challenge as being the best approach
                o     Take into account that experiences within groups are different
                o     When examining a question that appears to be one of gender, we can also ask if race is implicated in it as well
         Current inequality is consequence of historical practice, existing norms, ideological assumptions, failure to take adequate measures to overcome
          recognized disadvantage
         Unstated discrimination must be addressed
         Test of whether people are being treated equally  ask if they are being treated as if they are of equal moral worth.
         Substantive equality must be grounded in actual experience.
         SCC is open to this: aboriginal oral histories are treated as evidence, even though they do not conform to the standard accepted evidence before the
          courts
         IN SUM, Substantive equality requires consideration of the impact of government policy and decisions on the various communities subject to them.
                o     Determine how decisions affect member of society because of unexamined beliefs about their needs, behaviors, experiences.
                o     Must address: omissions (what needs to be added) and commissions (what needs to be removed?)
                o     Examine how policy making treats people with equal dignity and respect.


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Early Interpretation and Application of Section 15: The Andrews Test and the 1995 Trilogy

    The fact that prima facie equal treatment can create inequalities is a conundrum for legal theory.
          Canadian law now recognizes a duty to accommodate difference, to the point of “undue hardship”: effects on others are taken into account.
          The US has responded to this problem with a “reasonable classification” / “reasonable situation” test. The US government can only deviate from equal
           treatment if it is “reasonable” to do so.
               A “reasonable” classification is one that includes all people in the government’s target group
               The US has an open-ended discrimination clause, with no specified grounds
               This approach has been critiqued because it takes sameness as its model. It does not seem to take integral discrimination into account.
    s.15 can only be invoked by “every individual” (corporations and groups are specifically excluded).
          However, the French version of s.15(1) says “personnes” rather than “individus,” so it’s unclear.
    s.15 provides that every individual is:
          equal before the law: This was the phrase used in the Canadian Bill of Rights.
          equal under the law: This was meant to refute Ritchie J’s suggestion in the Lavell case.
     and has the right to
          equal protection of the law: This is derived from the US constitution.
          equal benefit of the law: This was meant to refute Ritchie J’s suggestion in the Bliss case.
    s.15 did not come into force until 1985, three years after the rest of the Charter.
    The courts had no authoritative interpretation of s.15 until the Andrews case.

Andrews set out three part test for evaluating violation of equality:
     1. Distinction in treatment
     2. the distinction in treatment results in the imposition of a burden or denial of a benefit
     3. Distinction in treatment is on the basis of an expressly prohibited ground or one analogous thereto.

Law reformulated the test: burdensome differences in treatment on the basis of prohibited grounds are discriminatory only if they can reasonably be said to violate
the human dignity of the claimant.

Andrews v. Law Society of British Columbia [1989] 1 SCR 143; 56 DLR (4th) 1 (CB1150-1155)
Jurisdiction       BC
Facts              Andrews was a qualified British lawyer who wanted to practice in BC. Law society said you have to be a Canadian citizen to practice.
Issues             Doest the citizenship requirement for entry into the legal profession contained in s. 42 of the Barristers and Solicitors Act contravene s. 15(1) of
                   the Canadian Charter of Rights and Freedoms?
Holding            Yes  Andrews.
Reasoning          McIntyre J:
                              The concept of Equality
                                     o     Equality does not mean same treatment
                                     o     A law expressed to bind all should not because of irrelevant personal differences have a more burdensome or less
                                           beneficial impact on one than another.
                                     o     Legislatures may – and to govern effectively must – treat different individuals and groups in different ways.
                                     o     The purpose of s. 15 is to ensure equality in the formulation and application of the law.
                              Discrimination
                                     o     “Described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the
                                           individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group
                                           not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to
                                           other members of society.”
                                     o     “Enumerated or analogous grounds”: accords with the purpose of s.15. Legislative distinction exists in the Barristers and
                                           Solicitors Act between citizens and non-citizens. The distinction places a burden on non-citizen permanent residents in
                                           the form of some delay, and is therefore discriminatory. Citizenship status is an analogous ground since addresses non-
                                           citizens who make up, as Wilson J said, “a discrete and insular minority”. LaForest J: pointed out that citizenship is an
                                           immutable characteristic, beyond the control of the person and that citizenship is generally irrelevant to the legitimate
                                           work of government and to the assessment of an individual’s ability to perform or contribute to society.
                              Section 1 justification
                                     o     McIntyre: Should relax the Oakes test in order to avoid hindering governments from making distinctions and
                                           categorization that is inherently what governing does.
                                     o     Wilson and LaForest: Since “s.15 is designed to protect those groups that suffered social, political, and legal disadvantage
                                           in our society, the burden resting on government to justify the type of discrimination against such groups is appropriately
                                           an onerous one.”
Ratio
Comments           1. Principles from Andrews that continue to inform discussion on equality:
                                    equality /// sameness of treatment
                                    rejection of the similarly situated test or notion of formal equality as reliable guide to interpreting s. 15
                                    effects of law should be focus of challenge
                                    claimant must establish differential treatment
                                    a personal characteristic will be accepted as an analogous ground
                   2. Commentators debated the court’s approach to the similarly situated test: those who applauded the court’s approach said it went to
                        substantive conception of equality, those who were skeptical said that there may be differences that merit differential treatment.
                   3. “discrete and insular minority”: originally used to describe vulnerable groups, but vulnerable groups may not be discrete and insular, since
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                            they may be diffuse and difficult to identify.
                      4.    Andrews challenged socially destructive forms of discrimination, closed door to allegedly arbitrary or irrational laws.
                      5.    Division regarding section 1 is still present in equality jurisprudence.
                      6.    Absence from Andrews decision: failure to articulate equality rights in accordance with purposive approach to Charter.
                                       In Turpin, court tried to look at purpose of s. 15: need to examine s. 15 in wider social, political and legal context. Question
                                        about whether someone would hold “membership” in a relatively advantaged group would be able to successfully argue an
                                        infringement of s.15.
                      7.    Implication that one must be a member of a disadvantaged group to bring a s.15 claim was rejected in Hess and Nguyen: challenged
                            statutory rape provisions, claiming that since they targeted only men, they violated s. 15. WRONG: statutory rape provision speaks to the
                            biological reality of adult men v. boys. (Women can’t rape boys??)
                      8.    Another claim that s. 15 was infringed: male prisoners frisked by female guards, but not female prisoners frisked by male guards. NO:
                            historical trend of violence by men against women is not matched by a comparable trend pursuant to which men are the victims and
                            women are the aggressors.

The Law Test
    1. Is there differential treatment?
    2. Is it based on an enumerated or an analogous ground?
    3. Does it discriminate in a substantive sense involving factors such as prejudice, stereotyping, and disadvange?

    The Law test attempted to provide a formula for when it’s fair to treat people the same, and when it’s fair to treat them differently.

Law v. Canada (Minister of Employment and Immigration), [1999] 1 SCR 497. (CBp.1162)
Jurisdiction    Federal
Facts           Nancy Law was 30 years old when her husband died; she was denied benefits under the Canada Pension Plan because she was under 35 at the
                time of her husband’s death. (Law had no disability, and no dependent children.)
Issues          Was the minimum age requirement for CPP benefits unconstitutional?
Holding         No (unanimous decision).
Ratio           Summarizing the court’s approach, Iacobucci J wrote:
                1. It is important to interpret s.15(1) purposively and contextually, and not to use a rigid test. 2. The court should focus on three central issues:
                              A. whether there is differential treatment, in purpose or effect
                              B. whether the differential treatment is based on enumerated or analogous grounds
                              C. whether the differential treatment has discriminatory purpose or effect
                2. The court should make three “broad enquiries”:
                              A. Does the impugned legislation
                                           (a) make a formal distinction based on personal characteristics
                                                        or
                                           (b) fail to consider disadvantage resulting in substantively different treatment?
                                           (If yes to this question, there is differential treatment.)
                              B. Is the differential treatment based on one of the enumerated or analogous grounds?
                              C. Does the differential treatment discriminate substantively, considering prejudice, stereotyping, historical disadvantage, etc.? (This
                              third prong is subject to the most criticism.)
                3. 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.”
                4. To find a violation, the impugned law must conflict with this purpose when considered in context.
                5. Acknowledging that equality is a comparative concept, Iacobucci says that it should be up to the claimant to choose the reference point for
                comparison (although the court may refine this).
                6. The court should consider contextual factors both subjectively and objectively: it should use the point of view of the reasonable person
                “possessed of similar attributes to, and under similar circumstances as, the claimant.”
                7-8. A variety of contextual factors can be considered, such as
                       pre-existing disadvantage or vulnerability
                       relationship between differential treatment and the claimant’s needs or circumstances
                       the ameliorative purpose or effect of the law on other persons or groups
                       the nature and scope of the interest affected (e.g. employment, housing, health care)
                This list is not closed. The general theme, according to Iacobucci J, is that “an infringement of s.15(1) of the Charter exists if it can be demonstrated
                that, from the perspective of a reasonable person in circumstances similar to those of the claimant who takes into account the contextual factors
                relevant to the claim, the legislative imposition of differential treatment has the effect of demeaning his or her dignity.”
                9. The claimant doesn’t necessarily have to show evidence of a violation of dignity or freedom.
                Iacobucci emphasized that the intention of the legislation did not have to be discriminatory.
                In this case, the court found that there was differential treatment based on age, but that this was not discriminatory since people under 35 were
                not a disadvantaged group, and that the law was designed to help older surviving spouses.
                SEE TEST – p. 1173-1175 (And again in R. V. Kapp – Additional Required Readings)
Comments               Hogg thinks the human dignity requirement, even with specified contextual factors to consider, is too vague.
                       It also shifts much of the discussion to s.15 and leaves little for s.1, which leaves much of the burden of proof on the claimant. (Iacobucci
                        acknowledged this problem and mitigated it to some extent with #10—the claimant not having to show evidence)
                       WHAT TO TAKE OUT OF THIS CASE: Human dignity as the lynchpin for arguments? See Kapp for the state of the law today.
                       Four factors: 1) Disadvantaged group historically disadvantaged (e.g. spouses not historically disadvantaged); 2) Whether differential
                        treatment corresponds to a specific need (e.g. medical success of operation based on donor/recipient); 3) Legislation aimed at ameliorating a

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                         disadvantaged group (but this is s. 15(2)); 4) Nature of the interest affected (e.g. major encroachment vs. minor encroachment)
                        Articulation of the purposive approach

    The Thibaudeau case (1995) applied the Law test. This case involved the taxation of child support received by custodial parents. The court framed the issue in
     terms of intact families versus divorced families, and found that it benefited divorced families, because less tax was deducted if the custodial parent was in a
     lower tax bracket than the paying parent.
         McLachlin and L’Heureux-Dubé JJ, dissenting, framed the issue in terms of gender equality, because 98% of parents receiving child support are women.
         McLachlin J would have recognized custodial parenthood as an analogous ground.

Differential Treatment
     The Eldridge case is a good example of “adverse effects” discrimination: a “facially neutral” law resulting in differential treatment.

Eldridge v. British Columbia (A.-G.), [1997] 3 SCR 624. (CBp.799 and 1181)
Jurisdiction      British Columbia
Facts             Three deaf people were not provided with free sign language interpretation in hospital, and they claimed that this violated their equality rights.
                  BC’s health legislation gave the Medical Services Commission the discretion to decide which services to insure, and it gave hospitals the discretion
                  to decide which services would be free.
Issues            1. Were the hospitals bound by the Charter?
                  2. Did the absence of free sign language unconstitutionally violate equality rights?
Holding           1. Yes; 2. Yes. (unanimous decision)
Ratio             La Forest J:
                  1. La Forest J began by repeating the rule from Slaight Communications Inc. v. Davidson, *1989+ 1 SCR 1038, that “since legislatures may not enact
                  laws that infringe the Charter, they cannot authorize or empower another person or entity to do so.”
                       Although hospitals are private entities, they work to implement a “specific government program or policy,” i.e., the delivery of medical
                        services.
                  2. La Forest J described two purposes of s.15. Besides the idea of human dignity emphasized by Iacobucci J in the Law case, he added the goal of
                  rectifying and preventing discrimination against disadvantaged groups.
                       La Forest J followed the statements in Andrews, that a facially neutral law may be discriminatory, and that it is not necessary for a law to have
                        had a discriminatory intent.
                       La Forest J drew on Eaton v. Brandt County Board of Education (1997), which dealt with the application of equalty rights to disability cases—it
                        concluded strongly that equality meant the accommodation of difference.
                       La Forest J disagreed with the lower courts, which had said that sign language interpretation did not have to be provided because it was an
                        “ancillary service.” He said that communication was integral to medical care; therefore deaf people were being denied a benefit available to
                        others.
                  The respondents argued that benefit programs should only be scrutinized for adverse effects discrimination when the adverse effects might
                  exacerbate the disparities between the group and the rest of the population.
                       Eldridge is deaf  enumerated ground (physically disabled). Physically disabled were historically discriminated against.
                       Distinction in treatment is based on personal characteristic that is irrelevant to the functional values underlying the health care system.
                       The only question then is whether the appellants have been afforded equal benefit of the law without discrimination? NO. Lack of funding
                        for interpreters renders them unable to benefit from this legislation to the same extent as hearing persons.
                       This is adverse effects discrimination because the law on its face does not directly discriminate.
                       By characterizing sign language interpretation as “ancillary services” instead of “medically required”, it mischaracterizes the practical reality
                        of health care delivery. Those who hear do not receive communication as a distinct service. In order for deaf people to receive the same
                        quality of care, they must bear the burden of paying for interpreters despite the system is intended to make ability to pay irrelevant.
                       Once the state does provide a benefit (like health care services) it is obliged to do so in a non-discriminatory manner. [para73].
Comments               La Forest’s comments on p.801 are a good summary of the chapter on applicability
                       Vriend case is another one where “adverse effects” was successfully brought against legislation: imposed on sexual minorities the denial of
                        protection against discrimination based on sexual orientation.
                       Colleen Sheppard discusses the need to develop further the concept of adverse effects discrimination, discussing the Tracey Meiorin case,
                        where she was denied a firefighting job because she failed an aerobics test.




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Colleen Sheppard, “Of Forest Fires and Systemic Discrimination” (2001) (CBp.1190)
         Distinction between direct and adverse effects remains critically important for identifying adverse effects of apparently neutral policies, practices, and
          procedures
         If we don’t understand adverse effects discrimination, then we won’t be able to recognize laws that appear neutral on their face, but are in fact
          discriminatory.
         Laws and practices that are neutral on their face may be invisible and unacknowledged, especially for those who are not experiencing the disadvantage.
         ELIMINATING INTENT FROM DISCRIMINATION ANALYSIS
         First, Get rid of the intent problem: early forays into discrimination law relied on criminal law model of mens rea. Only liable for harm that is intended.
                 o     Adverse effects  recognized that mens rea discrimination was not the only way discrimination can happen. Purpose is to prevent
                       discrimination, not to punish the wrongdoing.
                 o     Adverse effects was understood as the opposite of direct discrimination. Intent was necessary for direct discrimination.
                 o     Intent is difficult to show even in direct discrimination: confusion of malice and intent.
                 o     Adverse effects discrimination often arose inadvertently, making intent and moral blameworthiness difficult, if impossible, to establish.
                       Example: Police uniforms are intended to advance occupational health and safety, but discriminates against Sikhs because they could not wear
                       the turban with the uniform.
         WHE ARE DISPARATE EFFECTS DISCRIMINATORY?
         Second, understand when and how adverse effects cause discrimination.
                 o     Easy to show when adverse effects discriminate against minority religions: it affects 100% of adherents
                 o     However, when dealing with race or gender, it’s not as easy: effects may not be absolute or result in 100% exclusion of women or racial
                       minorities (e.g standardized employment test).
                 o     Example: aerobic test for firefighters was set to such a high standard that most women could not achieve, even with training. It is generally
                       thought that discrimination can be deduced from a disparate pattern of exclusion or harm that is statistically significant and not simply the
                       result of chance.
                 o     Exclusive reliance on stats masks qualitative approaches to determining discrimination.
                 o     Also, courts emphasize the causal link or connection between the discriminatory effects and the rule or policy
         RECOGNIZING DIFFERENT TYPES OF ADVERSE EFFECTS DISCRIMINATION
         Third, need to distinguish between a facially neutral rule or policy applied to everyone and a facially neutral distinction.
                 o     Facially neutral policy, practice or standard: standards that are applied to all in the same way
                 o     Facially neutral distinction or categorization: harmful differential treatment that corresponds to a prohibited ground of discrimination in human
                       rights law because the preponderance of individuals from particular social groups affected by the facially neutral distinction or category.

    We normally think of s.15(1) in terms of group-based discrimination. But it is important to remember that individual claims that wouldn’t work under s.15(1)
     might succeed under s.7.

Enumerated and Analogous Grounds
   In an early case, the SCC refused to recognize “province of residence” as an analogous ground.
   In M. v. H. (1999), the SCC applied the Law test to the issue of the definition of “spouse” in Ontario’s Family Law Act. Since the definition discriminated on an
    analogous ground, and it violated human dignity, it was overturned.

Diane Pothier, “Connecting Grounds of Discrimination to Real People’s Experiences” (2001) (CBp.1194)
   Pothier responds to those who criticize enumerated grounds of discrimination, by pointing out what happened in the US, where there were no grounds of
    discrimination in the 14th Amendment.
   According to Pothier, enumerated grounds serve as a reminder of why discrimination is prohibited. They link the law to history and context, and focus attention
    on the real sources of discrimination.
   “Grounds of discrimination, as a legal construct, are markers of the dynamics of power. The exercise of identifying new analogous grounds forces an inquiry into
    the complexities of the dynamics of power.”
   Attention to grounds helps to ensure that history and context of discrimination do not simply fade into the background.

    The Law case established a unified but malleable test: it has been interpreted in many different ways.
    The SCC has recognized four “analogous grounds” of discrimination:
              citizenship (Andrews)
                    the court emphasized lack of political power.
              sexual orientation (Egan)
                    La Forest J (and three others) emphasized immutability.
                    Cory J (and three others) focused on historical disadvantage, stereotyping and prejudice.
              marital status (Miron v. Trudel)
                    McLachlin J emphasized individual dignity and freedom, historical disadvantage and prejudice, and near-immutability.
              off-reserve Aboriginal status (Corbière)

Corbière v. Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203. (CBp.1197)
Jurisdiction    Federal
Facts           S.77(1) of the Indian Act required Indians to live on reserve in order to vote in band elections. Non-resident band members challenged this under
                s.15.
Issues          Did the exclusion of off-reserve members unconstitutionally violate equality rights?
Holding         Yes.
Ratio           McLachlin and Bastarache JJ (for the majority of five) held that off-reserve status was an analogous ground of discrimination.
                     First: determine whether the impugned law makes a distinction that denies equal benefit or imposes an unequal burden. The Indian Act’s
                      exclusion of off-reserve band members from voting privileges on band governance satisfies this requirement.
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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009 p. 104

                       Next: determine whether the distinction is discriminatory, and whether on an enumerated or analogous ground.
                       Aboriginality-residence does constitute an analogous ground
                              o    Some say grounds may be analogous or not depending on the circumstance
                              o    Enumerated grounds are only indicators of suspected grounds of distinction, we can find analogous grounds
                              o    Both analogous and enumerated grounds stand as constant markers of suspect decision making or potential discrimination. What
                                   varies is whether they amount to discrimination in the particular circumstances of the case.
                       How do we identify new analogous grounds?
                              o    Avoid conflating the second and third stages of the Law test.
                              o    How do we identify new grounds? Those that are like those enumerated in section 15: race, national or ethnic origin, colour,
                                   religion, sex, age, or mental or physical disability.
                              o    They target the denial of equal treatment on the ground that are actually immutable, like race or constructively immutable like
                                   religion.
                       Aboriginality-residence is analogous ground: it goes to a personal characteristic that essential to a band member’s personal identity, which is
                        no less constructively immutable than religion or citizenship.
                              o    NOTE: (1) residence decisions faced by Canadians should not be confused with the profound decisions Aboriginal band members
                                   make to live on or off their reserves, assuming choice is possible. The reality of the situation is unique and complex.
                              o    (2) just because this analogous ground only affects a sub-group of Canadians, it does not diminish its quality as an analogous
                                   ground.

                   L’Heureux-Dubé J (with three other judges) concurred in the decision, but had different criteria for analogous grounds. A characteristic might be
                   analogous if:
                              o  Key question once differential treatment is established it to ask whether it has the analogous ground distinction has potential to
                                 violate human dignity
                              o  Must be analyzed contextually and purposively:
                                            Contextual factors: fundamental characteristic of the person, important to personhood, identity, belonging. Also the
                                             fact that it is difficult or impossible to change. Also consider whether ground is in Human Rights Codes.
                              o  Aboriginals who decide to live on or off reserve is different from most other Canadians about their choice of residence.
                              o  Factors that lead to conclusion that off reserve band members is analogous ground:
                                            Choice to live on/off reserve is important to identity, personhood
                                            Members living off reserve have historically been subjected to disadvantage, stereotyping, prejudice: “discrete and
                                             insular minority”
                                            Lack of housing on reserves makes it hard to move back

                        Agreement from court that the third stage of the Law test is passed: the distinction completely denied any participation in band council
                         affairs, and was based on the stereotypical claim that off reserve members have no interest in maintaining a relationship to the reserve.
                        Violation of s.15 was not justified under s. 1: it does not minimally impair equality rights.
                               o     No justification that denial to off reserve members is necessary
                               o     No evidence of the costs and administrative difficulties associated with other schemes that would give off-reserve members some
                                     role in band governance.
                               o     Remedy: the words “and is ordinarily resident” were struck from the statute.
Comments           Prof. Sheppard stressed that this case could have been looked at as an adverse effects case rather than an analogous grounds case.
                        “Basis of stereotypical decisions based not on merit but based on immutable characteristics or ‘constructively immutable’ characteristics
                         (changeable only at unacceptable personal cost)”
                        Discrete or insulated community/group – history of discrimination (factor considered)
                        Can this issue be framed in terms of race or sex?
                        Katrina: Yes, if you look at the historical reasons for which people (esp. Women) have moved off-reserve due to racialized provisions – e.g.
                         loss of status if marrying a white man, etc. – there are race and sex discrimination reasons for which people have lost their rights to vote in
                         band elections.
                        Thibodeau case – challenge by custodial parents re being taxed for child support – data showed that 98% of recipients of child support
                         payments were women – counter-argued that post-separation family gets a tax benefit
                        McLachlin and Bastarache: once a personal characteristic is found as an analogous ground, the determination will hold across all legal
                         contexts. L’Heureux-Dubé says the analogous ground can vary from context to context. Court has since united behind McLachlin’s and
                         Bastarache’s JJ view.
                        Court has ruled that the following are NOT ANALOGOUS GROUNDS: employment status, province of residence, persons charged with war
                         crimes or crimes against humanity outside of Canada, persons bringing claim against Crown.
                        Court has ruled that the following ARE ANALOGOUS GROUNDS: citizenship, sexual orientation, marital status, Aboriginality-residence.
                        Common feature of analogous grounds: immutability. Characteristics that we cannot change or that the government has no legitimate
                         interest in expecting us to change.
                        L’Heureux-Dubé range of factors should be examined when evaluating analogous grounds.

S. 15(2) – Affirmative Action:

Lovelace v. Ontario, [2000] 1 SCR 950. (CBp.1213)
Jurisdiction     Ontario
Facts            Ontario operated Casino Rama, whose profits went into a First Nations Fund and were then distributed to registered Indian bands in order to
                 improve the poor socioeconomic conditions of band members. Non-status (i.e., non-registered) Indians and Métis sued to claim a share of the
                 revenue.
Issues           Did the exclusion of non-status Indians and Métis unjustifiably violate s.15?

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Holding           No.
Ratio             [reasoning not important for this summary]
                      The majority agreed with Lovelace’s point that s.15(2) shouldn’t be used to defend a special program when used when a group is challenging
                       the program for underinclusiveness.
                      Iacobucci J talked about the relationship between s.15(1) and s.15(2). He said s.15(2) was an interpretive aid to s.15(1), indicating that it is
                       normal for s.1 to include this kind of program. (s.15(2) should not be seen as just an exemption or a defence against a s.15(1) analysis.)
                       Therefore, affirmative action programs can be subject to the same s.15(1) analysis that would be applied to any other program.

    So it seems that s.15(2) is more or less incorporated into s.15(1).
           Hogg: s.15(2) provides an exception to the general prohibition of discrimination under s.15(1), making it unnecessary to use s.1 to justify such a program.
           Prof. Sheppard says that s.15(2) was put into the constitution because the affirmative action debate was raging at that time.
           Prof. Sheppard says the best affirmative action programs are those that change institutional norms rather than keeping the same norms and making
            exceptions.
    The Lavoie case involved a citizenship preference for the federal public service. (cf. Andrews)
           The majority of the SCC found that s.15(1) was breached, but that it was justified under s.1.
    Prof. Sheppard says that sometimes the best approach is to “take a step back” and ask: Does this create some substantive unjustice or unfairness, in light of the
     group’s situation in society?
           e.g. in Vriend and Eldridge as opposed to Law and Lovelace.
    WHAT IS AN AFFIRMATIVE ACTION PROGRAM? E.g. Eldridge – difference between affirmative action (ameliorating the situation of a historically disadvantaged
     group) and substantive equality (nobody is harmed by giving hearing impaired patients a sign language interpreter – this is just substantive equality)

R. v. Kapp – Back to the Andrews Test
     Deference to parliament’s ideas about what will ameliorate the circumstances of a disadvantaged group – rational basis for the test – “vulnerability, prejudice,
      and negative social characterization”
     Underinclusiveness problem – underinclusiveness should not be blocked or barred by the new test in Kapp – if the group challenging is another group that is
      historically disadvantaged, the test might need to be changed in light of the fundamental substantive equality principles
     Sheppard is worried that Kapp will narrow the substantive equality (s. 15(1)) provisions – almost everything the government does has an ameliorative objective
                  Cannot just rely on a technical test! Must take a common sense approach – come out of the trees to see the forest.
     Bastarache – re. aboriginal rights – Charter cannot violate aboriginal rights
     Ensuring recognition of group-based identities, but also wanting to encourage people to relate across these differences
           Language rights – claim is the desire to be separate from the majority – to have minority language schools
           Aboriginal rights – complex identities, many individuals who don’t fit only into one group – what to do about these intersections?

R. v. Kapp (Exerpts) (2008), 79 BCLR (4th) 201, 2008 SCC 411
Jurisdiction     BC?
Facts            Appellants, commercial fishers, mainly non-aboriginal, assert equality under s. 15 is violated by communal fishing license which permits members
                 of three aboriginal bands a 24-hour advance fishing license. They fished during the 24-hour exclusive aboriginal fishing period in protest, and were
                 charged for fishing without a license.
Issues           Does the 24-hour exclusive period for aboriginal fisher-humans violate the appellants’ section 15 equality rights? Is the 24-hour period protected
                 under 15(2)? Did the appellants have the right to fish during this 24-hour exclusive period?
Holding          Yes. Yes. No  Charges upheld.
Reasoning        McLachlin CJC and Abella J (Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ concurring):
                      Substantive equality v. formal equality: “equality entails the promotion of a society in which all are secure in the knowledge that they are
                       recognized at law as human beings equally deserving of concern, respect and consideration.” Equality does not mean equal treatment.
                      Purpose of section 15
                      15(1) and 15(2) must be read together as a whole. 15(2) means governments can combat discrimination by affirmative action programs
                      (REVIEW OF ANDREWS AND LAW)
                      Andrews developed template:
                                    1. Does the law create disadvantage based on an enumerated or analogous ground?
                                    2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
                      Discrimination is based on grounds relating to personal characteristics of the individual or group which has the effect of imposing burdens,
                       obligations, or disadvantages on such individuals not imposed on others, or which withholds or limits access to opportunities, benefits, and
                       advantages available to other members of society.
                      Law: suggested that discrimination should be defined in terms of the impact the law has on human dignity
                      Human dignity as a legal test: abstract and subjective notion??
                      Law: focuses on factors that identify impact amounting to discrimination:
                             o      Perpetuation of pre-existing stereotype
                             o      Perpetuation of disadvantage
                             o      Does it have ameliorative purpose or effect or a law or program? (s.15(2)).
                      Law affirms the approach to substantive equality under s. 15 set out in Andrews.
                      Section 15(2):
                      McIntyre J in Andrews: distinguished between difference and discrimination, approach that acknowledges and accommodates differences.
                       Not all distinctions are discriminatory
                      Case at bar: appellants have established that they are treated differently based on race.
                      So question becomes: is the difference saved under section 15(2)?
                      Iacobucci in Lovelace: two approaches to interpreting 15(2), but court here finds a third:
                             o      If government can demonstrate that an impugned program meets the criteria of s. 15(2) it may be unnecessary to conduct a

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                                   s.15(1) analysis at all.
                             o     Focus on 15(1) is PREVENTING discrimination
                             o     Focus on 15(2) is ENABLING proactive combat against discrimination
                       TEST UNDER 15(2):
                             o     A program does not violate s. 15 if the government can show that
                                              The program has an ameliorative or remedial purpose
                                              The program targets a disadvantaged group identified by an enumerated or analogous ground.
                             o     This is a basic starting point in the analysis.
                       “HAS AS ITS OBJECT”
                             o     Two issues arise:
                             o     (1) whether to look at PURPOSE or EFFECT of legislation
                                              Court says to look at purpose rather than effect
                                              Court can analyze if the state acted rationally in the means to achieve its ameliorative purpose.
                             o     (2) Whether a program must have an ameliorative effect as its SOLE purpose.
                                              No, it is unlikely that any program will be motivated by only ONE purpose.
                       “AMELIORATION”
                             o     Laws designed to restrict or punish do not qualify for 15(2) protections
                             o     Governments are not permitted to protect discriminatory programs on colourable context.
                       “DISADVANTAGED”
                             o     Vulnerability, prejudice, and negative social characterization. 15(2) protects government affirmative action programs. Not all
                                   members of the group need be disadvantaged, as long as the group as a whole has experienced discrimination.
                       Application to the case at bar
                             o     Appellants argue that they are denied benefit based on race. TRUE, but distinction based on enumerated or analogous ground will
                                   not constituted discrimination under s. 15 if: remedial purpose targeting a disadvantaged group.
                             o     Does the program have ameliorative purpose? YES  attempt to negotiate a solution to aboriginal fishing rights claim
                             o     Hope to address economic disadvantage of targeted bands
                             o     Means chosen to achieve purpose are rationally related to the purpose
                             o     Does the program target a disadvantaged group? YES  disadvantage of aboriginal people is indisputable.
                             o     THUS Breach of s. 15 equality has not been established.
Ratio             

Gosselin v. Quebec (Attorney General), [2002] 4 SCR 429 (Supplement Vol. 2 p. 236)
Jurisdiction        Quebec
Facts               Full welfare benefits not allowed to under-30 recipients unless they participate in workfare programs. Programs not available to all under-30
                    welfare recipients, not available continuously.
Issues              Does the Social Assistance Scheme Violate Section 15(1) of the Canadian Charter?  whether a reasonable person in Ms. Gosselin's position
                    would, having regard to all the circumstances and the context of the legislation, conclude that the Regulation in purpose or effect treated
                    welfare recipients under 30 as less worthy of respect than those 30 and over, marginalizing them on the basis of their youth.
Holding             No.
Ratio                    No violation of dignity by the requirement to participate in workfare programs – it is an affirmation of young people’s potential.
                         Violation of dignity and continuing stereotyping of under-30 individuals not giving rise to substantive equality.
                    Majority Opinion: The Section 15 test must be applied which analyzes context and the effects of the scheme in order to ascertain as to
                    whether or not there is discrimination.
                         A beneficent purpose doesn’t shield discriminatory legislation from judicial review
                         Legislative purpose is relevant only insofar as it relates to whether or not a reasonable person in the claimant's position would feel that a
                          challenged distinction harmed her dignity [para.27].
                    To answer question must set out four factors (neither are a pre-requisite for finding discrimination, nor do they apply to every case):
                    1) Pre-existing Disadvantage  NO
                         Age is not strongly associated with discrimination and arbitrary denial of privilege. age-based distinctions are a common and necessary
                          way of ordering our society.
                    2) Relationship b/w Grounds & Group's Characteristics or Circumstances  NO
                         A law that is closely tailored to the reality of the affected group is unlikely to discriminate within the meaning of s. 15(1).
                         By contrast, a law that imposes restrictions or denies benefits on account of presumed or unjustly attributed characteristics is likely to
                          deny essential human worth and to be discriminatory.
                         Claimant did not prove that under 30s suffered adverse effects
                    3) The Ameliorative Purpose or Effect of the Impugned Law Upon a More Disadvantaged Person or Group in Society  Neutral
                         Assess whether the challenged distinction was designed to improve the situation of a more disadvantaged group
                    4) Nature and Scope of the Interests Affected by the Impugned Law  Evidence Not Sufficient
                         Legislature thought it was helping under 30s, not enough proof of adverse effects

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 SCR 76 (Supplement Vol. 2 p. 249)
Jurisdiction   SCC
Facts          Parents spanking children.
Issues         Children’s equality rights violated by a Criminal Code provision which excuses parental use of force?
Holding        No violation.
Ratio          Majority: Doesn’t violate.
               Minority: Violates but it is a reasonable limitation based on s. 1.
               Dissent: Violates and is not reasonably justified.
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Hodge v. Canada (Minister of Human Resources Development), [2004] 3 SCR 357 (Supplement Vol. 2 p. 252)
Jurisdiction    Federal
Facts           Ex-common law spouse claiming survivor’s pension from man she used to live with. Claim denied. She claims discrimination on the basis of marital
                status.
Issues          Appropriate comparator group.
Holding             Illustrates the notion of a comparator group – who you pick as the comparator group effects your judgment.
                    Hodge argues she should get survivor benefits, because a separated married woman would have received benefits.
                    Court uses a different comparator: a divorced woman would not have received benefits, so neither should she.
Ratio           Appropriate comparator group is not married people, but rather divorced people – no discrimination.

Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 SCR 657 (Supp. Vol. 2 p. 257)
Jurisdiction    BC
Facts           Autistic children and their parents (respondents) claimed that the B.C. government’s failure to fund a behavioural therapy program for autistic
                children violated s. 15(1). They claimed this constituted discrimination in that they failed to provide a “medically necessary” service for children
                with disabilities where they would fund children without disabilities or adults with disabilities.
Issues          Does the B.C. Government’s failure to fund these services under the health plan amount to an unequal and discriminatory denial of benefits under
                that plan, contrary to s. 15 of the Charter?
Holding         No.
Reasoning            First, the claim that healthcare services were provided in a discriminatory manner is based on the erroneous assumption that the Canadian
                      Health Act (CHA) and relevant B.C. legislation provided the benefit claimed.
                     Eldridge was distinguished since it concerned unequal access to a benefit that the law conferred and with applying a benefit-granting law in a
                      non-discriminatory fashion. This case concerned access to a benefit not conferred by the law. There can be no administrative duty to
                      distribute non-existent benefits equally.
                     A legislative choice not to accord a benefit absent demonstration of discriminatory purpose, policy or effect does not give rise to a s. 15(1)
                      review.
                     The partial nature of the benefits program is an anticipated feature of the legislative scheme, and thus not discriminatory by effect.
                     Allowing the action would create a class of people legally entitled to non-core benefits, contrary to the purpose of the scheme.
                     Second, applying the appropriate comparator, it is not established that the government excluded autistic children on the basis of disability.
                      (The first point was sufficient to allow the appeal, but McLachlin went on to clarify.)
                The comparator group was chosen following the principles laid out in Hodge. The comparator group appropriate here was found to be the non-
                disabled or those suffering non-mental disabilities requiring new non-core therapies (those requiring established non-core therapies were not an
                appropriate comparator).
Ratio           The specific role of s. 15(1) is to ensure that when governments choose to enact benefits or burdens, they do so on a non-discriminatory basis.
                This confines s. 15(1) claims to benefits and burdens by law. The requirement of a benefit claimed or a burden imposed must be met before a
                claim can succeed.
                     S. 15(1) requires substantive equality as well as formal equality.
                If a benefit program excludes a group in a way that undercuts the overall purpose of the program, it is likely to be discriminatory. If the
                exclusion is consistent with the overarching purpose and scheme of the legislation, it is unlikely to be discriminatory.



Language Rights
         Language rights are treated as an ancillary matter and both governments can legislate (within the limitations set out in the constitution).
         Section 133 CA 1867 sets the guidelines for use of language in legislatives and judicial processes at the federal level and in Quebec only. Marks a special
          sense of entitlement for Canadians of French or English community; reflected in amendment formula. However, language rights are not in Section 15 but
          could be treated as analogous some day.
         Sometimes considered fundamental by the courts, other times not as universal as other rights.

A. Braën, “Language Rights” (1987) (CBp.1222)
    The British government’s 18th-century treaties, acts, proclamations, etc. did not address language, but functional bilingualism began almost immediately after
     the conquest of Quebec.
          Treaty of Utrecht does not mention language. English became language of Administration.
          Treaty of Paris: Freedom to exercise Catholic religion, but nothing on language.
          Quebec Act 1774: Re-establishes French Private Law in the province. Freedom to exercise religion, nothing still precisely on language, but the two are
           closely related.
    The Act of Union, 1840 made English the single official language, but official bilingualism was restored by the United Parliament in 1848.
    Section 133 is the only provision of the constitution Act 1877 dealing with language:
          Either English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the
           Legislatures of Quebec; and both those languages shall be used in the respective Records and Journals of the Houses. [Likewise for courts].
    Inspired by the Laurendeau-Dunton report, New Brunswick adopted official bilingualism in 1968, and the Canadian Parliament adopted the Official Languages
     Act in 1969.
    In 1977, Quebec introduced the French Language Charter, making French the only official language of legislation, of the administration of justice and of public
     administration, but court challenges have somewhat reduced the scope of this law.




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                                                                                            Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009 p. 108

P.A. Coulombe, “Language Rights in French Canada” (1987) (CBp.1224)
     Quebec and other Canadian francophone communities need strong laws to protect the French language, because there is a real danger of assimilation.
      Anglophones who see these laws as attacks on individual human rights fail to understand that market forces benefit the powerful. The state must intervene to
      protect the vulnerable from market forces of language just as it must intervene to protect social welfare or the environment.
     A minimum concept of language rights can be called “negative language rights”: not interfering with people’s right to use the language of their choice, and not
      discriminating on the basis of language.
     Coulombe is arguing instead for a positive form of state language planning in Quebec. He points to the fact that English has historically been seen as the
      language of prestige, to the demographic decline of French Quebeckers, the high rate of emigration from Quebec, and the tendencies of immigrants to learn
      English rather than French (although he acknowledges that this is changing).

    Protecting rights of collectivities in Constitutions – how is this problematic?
         How to redress past wrongs?
         How to ensure the dynamic and flourishing identity of a collectivity, that is not congealed in some past perception?
         How are minority language rights protected differently, or in the same way, as Aboriginal rights?
               Something Sheppard finds troubling – remedial framing to minority language rights issues (some also in Aboriginal rights, but less so)
               2 dimensions – “Purpose of s. 23” – CBp.1240)

Language Rights and the Constitution

CA 1867:
    S. 133 of CA1867 mandated bilingualism for Parliament, the Quebec legislature and the Quebec courts.
          This section did not propose the “symmetry” later found in the constitution: there was no insistence on the use of French outside Quebec.
    Some other constitutional statutes provided for institutional bilingualism along the lines of s.133, such as the Manitoba Act, 1870.
    In 1877, the Canadian Parliament instituted bilingualism in the Northwest Territories, but this Northwest Territories Act did not have constitutional status.
     Bilingualism in the Northwest Territories was repealed in 1892.

CA 1982:
    Ss.16-23 of the Charter deal with language rights.
    The “symmetry” of ss.16-23 is problematic:
           Anglophones in Quebec are not a vulnerable minority, threatened with assimilation, as are francophones in other provinces.
                 In Quebec, language divisions also have class dimensions.
                 The majority in Quebec is a minority in the country, on the continent, and in all nine of the other provinces.
           The “symmetry” also promotes the idea of two founding nations/communities, ignoring the special role of Aboriginal peoples. (This is one of the reasons
            the Meech Lake accord was blocked.)
    In the Société des Acadiens case (1986) (CBp.1233), the SCC considered whether New Brunswick francophones had the right to a judge who understood French.
           Beetz J, for the majority, said no: Language rights were a political compromise, and an appropriate area for judicial restraint. He did not agree that the
            right to use English or French included a guarantee that one would be understood in the language of one’s choice.
           Wilson J and Dickson CJC both wrote concurring judgments in which they disagreed with Beetz J on this point; they held that the right to use a language in
            court necessarily included the right to be understood by the judge.
    It’s interesting to note that Beetz J (from Quebec) gives language rights a narrow reading, while in other cases, Bastarache J (a francophone from New
     Brunswick) gives them a broad reading.
           This seems to be a reaction to “symmetry”: any rights given to francophones outside Quebec would have to be granted to anglophones in Quebec.

S. 16 Charter (Official Languages of Canada):
          S.16 makes English and French official languages, equal in status and use in Canadian government institutions.
          S.16.1, added enacted in 1993, constitutionalized bilingualism in New Brunswick, including educational and cultural institutions

S. 23 Charter (Minority Language Education Rights):
     S.23 of CA1982 covers minority language education rights.
           These apply to all provinces, except s.23(1)(a), which does not apply to Quebec.
           S. 23(1)(a) is only for citizens of Canada (including immigrants): if their first language learned and understood was that of the English or French minority
            language of the province in which they reside.
                 As a result of a political compromise, this not in force in Quebec.
           S. 23(1)(b) is also for citizens of Canada, but only those whose primary school was in Canada and was in the English or French minority language of the
            province in which they reside.
           S. 23(2) gives parents who have had one child instructed in a minority language the right to have their other children educated in the same language.
           S. 23(3) says that s.23(1) and (2) apply wherever numbers warrant, and include the right to public funding.

    Other sections of the Charter and Constitutional principles are also related to language rights:
           S.2(b): freedom of expression: How does this relate to ss.16-23?
           S.14: the right to the assistance of an interpreter in court: This applies to all language groups (not just English and French minorities).
           S.15(1): equality rights: Does it violate equality rights to give special rights to English and French speakers?
           Quebec Secession Reference: the protection of minorities: This was used to keep the Montfort hospital open—Ontario had to give good reasons if it was
            going to close its only French hospital.
           Federalism issues: Language has been considered to have a double aspect. It can be assigned to Parliament or the provincial legislatures when it’s ancillary
            to other powers.
    Bill 101 provisions that were inconsistent with s.23(1)(b) were struck down by the SCC.
           The original version of Bill 101 would have allowed English education only for children whose parents had been educated in English in Quebec.
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Mahe v. Alberta, [1990] 1 SCR 342. (CBp.1239)
Jurisdiction     Alberta
Facts            A group of Edmonton francophone parents claimed that s.23(3)(b)’s reference to “minority language educational facilities” required a separate
                 school board.
Issues           1. Do s.23 rights include a right to management and control of a school board, given sufficient numbers?
                 2. Are the numbers in Edmonton sufficient for this?
Holding          1. Yes; 2. No.
Ratio            1. This was the SCC’s first major interpretation of s.23. Characteristically, Dickson CJC set out a test including considerations of purpose and
                 context.
                      Purpose: to promote and preserve the two official languages and their respective cultures. (Dickson CJC emphasizes the link between
                       language and culture.)
                            “The purpose is to promote and preserve language and culture” (p. 1240)
                            Dickson CJC also mentions a second, remedial purpose: remedying the historical problem of the erosion of minority language rights
                             (francophone language rights outside of Quebec).
                                   Group rights which place positive obligations on government (top of p.1242)
                            Dickson CJC here casts doubt on earlier, narrower interpretations of language rights by Beetz J.
                      Context: Dickson CJC said that s.23 should be interpreted as a general right to minority language instruction, qualified by minimum numbers
                       requirements. He supports a “sliding scale” approach. Depending on numbers, s.23 would justify separate classes, separate schools,
                       representation on a school board, or a whole separate school board.
                            The right to receive minority language instruction depends on you being in a community with other people with the same right.
                            Dickson CJC refrained from attaching numbers to the sliding scale, but he described in detail situations where minorities should have
                             special representation on majority-language school boards.
                 2. [not important for this summary]
Comments         Prof. Sheppard finds this case fascinating to compare to equality rights cases on adverse effects discrimination.
                      This case is significant in terms of how to operationalize remedies: the court emphasized the need to empower vulnerable groups, providing
                       them not only with education, but with representation and control. This is innovative and complex.
                      Ask how the framing of “preservation of language and culture” for minority languages, vs. “culture” for Aboriginal populations.
                      How effective are Constitutional measures to remedy the damage that has already been done? Social and economic forces have contributed
                       to assimilation so much that remedial measures being put in now are “too little too late” according to some? Judges are willing to go quite far
                       in applying remedies, but there are limits to what law can do.
                      Even though Aboriginal rights are not expressly written “where numbers warrant”... the more damaged the community is due to past abuses,
                       the less likely they will be able to assert their Constitutional rights?
                      S. 23 is interesting because it does recognize that sliding scale. Public resources, etc... what kinds of remedies take into account the nature of
                       the damages sustained by the community?
                      Court decides that management and control of the minority language education is necessary to ensure that the minority language and culture
                       flourishes – this is important because (p.1244) – “minority language groups cannot always rely on the majority to take account of all of their
                       linguistic and cultural concerns.” – this resonates with feminist standpoint theory
                            People who experience violations of certain human rights or constitutional entitlements will have an understanding of that which the
                             majority will not share – idea that “if you’re in a wheelchair, you’ll know where all the steps are in this building, and where there are
                             ramps, and how to access the building.”  those who have less power may have more knowledge than those with greater power who
                             have a “right not to know.”
                            ASYMMETRY OF KNOWLEDGE. This is recognized by Dickson CJC in this judgment – the minority cannot expect the majority to take
                             account of their difficulties. It is not necessarily intentional – effects based. Idea that it may be important to give power, including
                             management and control (decision-making power) to those who have experienced the violation of rights in the past. It also speaks to
                             the idea that asks about process issues, and not just substantive outcomes. This resonates with the ideal of Aboriginal self-government
                             as NOT JUST A GOOD POLICY IDEA, but as a CONSTITUTIONAL ENTITLEMENT.

    It’s interesting to compare the way language rights have affected Canadian schools to the US context, where race was the issue. In the US, separateness was
     discriminatory; in Canada, separateness of schools and other institutions is used to promote equality.
    S. 23 is a limited right – only certain people are entitled to these rights – they are very rigid. Limited to historic communities, not to immigrants, for example...
     Cannot use s. 15 to challenge s. 23 rights...

Ford v. Quebec (AG), [1988] 2 SCR 712. (CBp.1253)
Jurisdiction     Quebec
Facts            Ford challenged the sections of Quebec’s language laws dealing with business signs, on the basis of s.2(b): freedom of expression.
Issues           1. Does freedom of expression include the right to express oneself in the language of one’s choice?
                 2. If so, would a violation of this right be justified under s.1?
Holding          1. Yes; 2. No.
Ratio            1. “Language is so intimately related to the form and content of expression that there cannot be true freedom of expression by means of language
                 if one is prohibited from using the language of one’s choice.” One can’t separate the message from the medium. This fact is supported by the
                 Quebec Language Charter itself. The court made a distinction between language rights (in ss.16-23) and language freedoms (which are not really
                 covered in the Constitution), pointing out that the issue in this case was language freedom.
                 2. In its s.1 analysis, the court recognized that the French language is vulnerable and that preservation is a pressing and substantial objective. The
                 court also recognized the importance of language in the public domain. However, it found that the exclusive use of French was not necessary; a
                 simple predominance of French would be a more proportionate measure.
Comments               Quebec protected its legislation using s.33; later, it amended the legislation to permit English as long as French is predominant (an example of
                        dialogue).
                       Quebec anglophones challenged the law to the UN Human Rights Committee, and succeeded in part.
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Remedies: Enforcement of Rights
    Before any Charter case can be heard, the issues of standing and jurisdictional competence of the court/tribunal must be decided.
    Two sections of CA1982 direct courts toward giving remedies:
         Declarations of legislative invalidity are granted pursuant to s. 52, while section 24 provides for a broad range of individualized remedies.
         Note that where s. 52 releif is available only where laws are being challenged, s.24 remedies are available in cases where the Charter infringement is the
          result of the actions of public officials, including the police, who are acting outside the legitimate (constitutional) scope of their authority.

Section 52: “Supremacy Clause”
    S. 52 (“supremacy clause”) makes it possible for a court to render a law of no force or effect to the extent that it is inconsistent with the Constitution – applies
     to whole constitution
          This section has the effect in some cases of giving standing to parties whose rights are not directly violated by laws
                There are six options for s.52(1) remedies:
                      1. Declaring the entire law invalid (e.g. BigM)
                      2. Suspension of the declaration of invalidity
                      3. Partial invalidity/severance (e.g. Morgentaler)
                      4. Reading in/extension (e.g. Vriend)
                      5. Reading down (e.g. Butler):
                                  Unlike severance, this just changes the interpretation, not the actual words.
                                  This has a parallel in the interjurisdictional immunity doctrine in federalism cases.
                      6. Constitutional exemptions (sought in Rodriguez)

Section 24: Remedies which are “appropriate and just in the circumstances”
    S. 24 of the Charter provides an express remedial provision, allowing a competent court to provide a remedy that is “appropriate and just in the circumstances”
     – applies only to Charter
          Individual remedies generally granted under this section, not limited only to laws, but to any state action
                This also has huge implications for standing.
                Unlike s.52(1), s.24(1) appears to give the courts wide discretion.
                S. 24(1) is only for Charter rights, while s.52(1) is for all constitutional issues.
                S. 24(1) is used when the court is not actually striking down the law in question.
                In some cases, such as Morgentaler, the person bringing the challenge is not the one affected by the law, so s.24(1) wouldn’t help.
                Changing the way the government administers a law (e.g., in Little Sisters) would be a s.24 remedy.

K. Roach, Constitutional Remedies in Canada (CBp.1264)
    Constitutional remedies are to correct constitutional violations and to regulate governmental behaviour.
    Remedies require balancing of interests affected by the remedies and also to respect appropriate institutional roles.
    In certain institutional contexts, it is not possible for a court to correct harmful effects of a violation fully or immediately – the judicial role has its limits, and
     interests must be balanced – the debate about constitutional remedies centers around the question of the role of the judiciary.
    “Corrective theory” – judges should only provide remedies that fully restore a victim of a violation to their position before the violation, regardless of “balancing
     of interests”; other remedial actions should be left to the legislative and administrative bodies.
    Public model of adjudication (regulation of government) – judges attempt to create remedies that ensure compliance with the Constitution in the future – they
     can supervise the remedial process and rely on negotiation between the affected interests to have their remedies accepted.
    Courts are concerned about not exceeding their role when devising constitutional remedies – this has led courts to strike down laws entirely rather than reading
     in terms or granting limited exemptions. Courts also hesitate to interfere unduly with budget priorities.
    S. 1 and s. 33 allow for a judicial-legislative dialogue. Sometimes courts suspend a declaration of invalidity in order to allow the legislature to amend a law.

Schacter v. Canada 2 SCR 679 [CB 1267]
Jurisdiction    Federal
Facts           The federal unemployment insurance provided mothers who gave birth with 15 weeks of maternity leave and provided adoptive parents with 15
                weeks of parental leave, which could be divided any which way between the two parents. Schachter contested this legislation saying that it
                violated s. 15 (equality) and discriminated in favour of adoptive parents and against natural parents.
Issues          Did the legislation violate s. 15 of the Charter on Equality rights? What remedy should the court grant?
Holding         Yes; The court struck down the legislation but suspended the declaration (however, in this case it was unnecessary because parliament changed
                the legislation before the ruling).
Ratio           Lamer CJC:
                       1. Reading down or severance is more common in rights violations than in division of powers because they are usually found in particular
                            provisions rather than in the legislation as a whole.
                       2. Test for reading down is: would the legislature still have passed bill without the impugned provision or is it so “inextricably bound up
                            with the part declared invalid” (p.1268, from AG Alberta v. AG Canada).
                       3. Same approach should be applied to reading in, but in the case of reading in the inconsistency is defined as what the statute wrongly
                            excludes rather than what it wrongly includes.
                       4. Reading in and reading down should be guides by two principles
                                       Respect of the role of legislature
                                       Respect of the purpose of the Charter.
                    5.      Guideline for choice of remedial options under Section 52
                                  1. Define the extent of the inconsistency (notably using first part of Oaks test)
                                  2. Deciding whether severance or reading in is appropriate using:
                                              o     Remedial precisions

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                                                                                               Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009 p. 111

                                               o       Inteference with legislative objectives
                                                                  (notably budgetary)
                                                  o    The change in significance of the remaining portion
                                                                  (In benefits case, this means to consider the size of the group added compared to the group already
                                                                   benefiting)
                                                  o    The significance of the remaining portion
                                                                  “If the remaining portion is very significant, strengthens the assumption that it would have been
                                                                   enacted without impugned provision”
                              3. Decide whether to temporarily suspend the declaration of invalidity.
                                          Important if striking down would pose danger to public or to the rule of law as in the Reference re. Manitoba Language
                                           Rights.
                                          Appropriate when faced with under-inclusive benefits, legislature should decide whether to extend benefits or just cancel.
                                          Lamer points out that it is not always best solution, can be more or less intrusive as it forces legislature to act. Puts it on their
                                           agenda.
Comments               Lamer CJC held that applying this logic to a case of positive rights, it was preferable to read in or down and to suspend the declaration of
                        invalidity rather than enforce an immediate strike-down.
                       S. 1 analysis is crucial for remedies because the reason it fails the s. 1 test is often relevant when determining the appropriate remedy.
                       Parliament ended up giving 10 weeks to everyone before the ruling came out.


Vriend v. Alberta [1998] 1 SCR 493 [CB 1277]
Jurisdiction     Alberta
Facts            Gay employee of religious college fired because of homosexuality. Unable to bring complaint under the Albertan Individual’s Right Protection Act
                 because legislation does not protect against discrimination on the grounds of sexual orientation. Challenged omission as violation of s. 15.
Issues           Is the exclusion of sexual orientation of the IRPA a violation of s. 15? If yes, what should be the remedy?
Holding          Yes; sexual orientation read in to the impugned provision of the IRPA with immediate effect.
Ratio                 Violation stems from an omission, therefore reading down cannot be considered
                      When reading in, must be faithful to two guiding principles:
                             o     Respect of the role of the legislature: reading in would not deprive Albertans of the protections of the IRPA and it would minimize
                                   interference
                             o     Respect of the purpose of the Charter: Charter aims at protecting and promoting inalienable rights; reading in would augment
                                   scope of the IRPA.
                      Additional criteria mentioned in Shachter:
                             o     Remedial precision: court does not need to fill large gaps
                             o     Budgetary repercussions: not sufficiently significant
                             o     Effects on the thrust of the legislation: all persons covered by IRPA would still be covered
                             o     Interference with legislative objective: reading sexual orientation would not interfere with objective of legislation. Moreover,
                                   omission of sexual orientation cannot be said to be integral part of the legislation
Comments              Controversial decision. Major J in his dissent claims that the legislature may not have passed the legislation had it included sexual orientation.
                       Major J also claims that Shachter does not apply because Lamer CJC stated that “the directions on reading in were not intended to be hard
                       fast rules to be applied regardless of factual context.”
                      Iacobucci J reminds everyone in judgment that Dickson CJC stated in Oakes that the concept of democracy means more than majority rule.

Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 SCR 3, 2003 SCC 62
Jurisdiction   Nova Scotia
Facts          The appellants are francophone parents living in five school districts in NS. They applied for an order directing the Province to provide, out of public
               funds, homogenous French-language facilities and programs at the secondary school level. The trial judge noted that the government did not deny
               the existence or content of the parents’ right under s.23, but rather failed to prioritize those rights and delayed fulfilling its obligation, despite clear
               reports that assimilation was “reaching critical levels.” The trial judge found a violation of s.23 and ordered the province to use their “best efforts”
               to provide school facilities and programs by particular dates. He retained jurisdiction to hear reports on the status of the efforts. The Province
               appealed the part of the order in which the trial judge retained his jurisdiction to hear reports. The Court of Appeal allowed the appeal, holding
               that while the courts have broad ranging powers under s.24(1) of the Charter to fashion remedies, the Charter does not extend a court’s
               jurisdiction to permit it to enforce its remedies.
Issues         Remedies – jurisdiction of the courts
Holding        Appeal allowed – trial judge’s order restored
Ratio               The affirmative promise contained in s.23 and the critical need for timely compliance will sometimes require courts to order affirmative
                     remedies to guarantee that language rights are meaningfully, and therefore necessarily promptly, protected.
                    The court must exercise discretion based on its careful perception of the nature of the right and of the infringement, the facts of the case,
                     and the application of the relevant legal principles.
                    The court must also be sensitive to its role as judicial arbiter and not fashion remedies which usurp the role of the other branches of
                     government
                    The boundaries of the courts’ proper role will vary according to the right at issue and the context of each case.
                    An appropriate and just remedy is one that meaningfully vindicates the rights and freedoms of the claimants and employs means that are
                     legitimate within the framework of our constitutional democracy.
                    An appropriate and just remedy is also fair to the party against whom the order is made.
                    The remedial power of s.24(1) cannot be strictly limited by statutes or rules of the common law. However, insofar as the statutory provisions
                     or common law rules express principles that are relevant to determining what is “appropriate and just in the circumstances”, they may be
                     helpful to a court choosing a remedy under s.24(1).
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                                                                                          Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009 p. 112

                      The range of remedial orders available to the courts in civil proceedings demonstrates that constitutional remedies involving some degree of
                       ongoing supervision do not represent a radical break with the past practices of the courts.

                  Major, Binnie. LeBel, and Deschamps JJ: (dissent)
                      A court purporting to retain jurisdiction to oversee the implementation of a remedy, after a final order has been issued, will likely be acting
                       inappropriately on two levels: (1) by attempting to extend the court’s jurisdiction beyond its proper role, it will breach the separation of
                       powers principle; (2) by acting after exhausting its jurisdiction, it will breach the functus officio doctrine.
                      As a general rule, courts should avoid interfering in the management of public administration. Once they have rendered judgment, they
                       should resist the temptation to directly oversee or supervise the administration of their oders and operate under a presumption that
                       judgments of courts will be executed with reasonable diligence and good faith.
                      The intrusiveness of the trial judge’s order was in no way necessary to secure the appellant’s s.23 Charter interests.



Part VII: Aboriginal Rights
Pgs 511-512 – Background and Context
         Aboriginal people are divided into 12 distinct language families and further separated into 50 diff. linguistic grouping.
         The Constitution Act of 1982 only makes three distinctions: Indian, Inuit and Métis
         The term used today is “First Nation” as a reflection of their identity but government still refers to them as “Indian” to recognize specific rights and
          obligations set out in treaties, legislation and program for people with “Indian status”
         Over 700 000 “Indians” in Canada – over half of which are under 25 years old, ½ live on reserves and ½ do not
         Over 50 000 “Inuit”, they live in the north and there is no federal registry for them – no status
         “Métis” – group that formed from mix of fur traders and Cree women, Cda expected that they would just assimilate into general population but this was
          not always the case

History of Aboriginal Rights (Class Notes)
    The 1996 Royal Commission on Aboriginal Peoples recognized four stages of Aboriginal history:
          1. “Separate worlds”: pre-contact (prior to 1500)
                    The Royal Commission rejected “terra nullius” (which means “land with no owner”) argument
          2. “Nation-to-nation”: wars, treaties, etc.:
                    Early treaties between Aboriginal nations and Europeans followed Aboriginal customs and norms, established in the course of treaty-making
                     among Aboriginal nations.
                    The Royal Proclamation of 1763 recognized the status of Aboriginal nations.
                    The British Crown made 375 treaties with Aboriginal nations between 1764 and 1867, but Aboriginal nations’ bargaining power clearly began to
                     wane after 1814.
          3. “Domination and assimilation” (c.1850-1970s)
                    In Ontario, by 1812, settlers outnumbered Aboriginals ten to one.
                    The fur trade declined; agriculture and the timber trade grew, requiring acquisition and control of land.
                    England and France, Canada and the US were at peace, so there was no more demand for Aboriginals an as military ally  an ideology of
                     European supremacy took shape
                    The government established “reserves”: These are much smaller than “reservations” in the US.
                          Aboriginals who lived off reserve needed passes to enter reserves.
                    CA1867 treated Indians as the subject of government power, not as citizens.
                    Aboriginals were forced into compulsory schooling, and the system of residential schools began.
                    The Indian Act (1876) set up a band council system, replacing indigenous governance systems and some kinship systems.
                    About 150 treaties were signed between the Crown and Aboriginal nations between 1967 and 1923, but no treaties were made after 1923.
                    Some ceremonies and traditions were banned, such as the potlatch (1884) and the sun dance (prairies) (1885).
                    Registered Indians did not have the right to vote until 1960. Communities continued to resist and survive.
          4. “Restructuring the relationship” (1970s-present)
                    All statistical indicators still show major disadvantages among aboriginal communities: life expectancy, health, employment, education, family
                     violence, and incarceration.
                    In the late 1960s, the Trudeau government’s “white paper” put forward a policy of assimilation.
                    In the 1973 Calder case, the SCC recognized Aboriginal title: a right to land based on occupation and use, not treaties.
                                 The 1998 Delgamuukw case elaborated the meaning of Aboriginal title: (CBp.579-580)
                                       Inalienable (other than to the Crown)
                                       Based on occupation
                                       Communal, not individual
                                       Collective right to land, held by Aboriginal communities, but enjoyed by individuals
                                       Exclusive use
                                       Use must not be incompatible with group’s traditions and identity
                    After the Calder case, government policy shifted toward negotiations for land.
                    Starting with the James Bay hydroelectric projects in Quebec, 16 modern treaties have been signed since 1973.
                    In interpreting old treaties, courts have been willing to look beyond texts to all sorts of historical evidence, giving treaties a generous
                     interpretation.
                    The 1996 Royal Commission recommended:
                          Recognition of Aboriginal nationhood, Aboriginal peoples as partners in federation

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                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009 p. 113

                            Endorsement and promotion of Aboriginal self-government
                                  How does this relate to “right of self-determination” under international law, and how can it be reconciled with a concern for
                                   Canada’s territorial integrity?
                            Membership in Aboriginal communities should not be exclusive, defined by race or blood; it should be based on shared identity and
                             memory.
                      Nunavut is an interesting exception: Aboriginal peoples are governing themselves, but not in an exclusive setting, just an Aboriginal majority.
                      In 1994, indigenous peoples from around the world promulgated the International Covenant on the Rights of Indigenous Nations (it was not
                       meant to be signed by states like Canada).
    S.35 of CA1982 declared, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
          S.35 (2) specified that this meant Indian, Inuit and Métis peoples.
          S.35 recognizes Aboriginal rights in very negative-rights terms (vs. minority language rights, which are more positive).
          S.35 rights include:
                Treaties
                Aboriginal rights
                      Aboriginal title (use of land)
                      Other rights (unclear: Sparrow, Van der Peet and Gladstone try to deal with this)
                            Virtually all these cases are about fishing rights
    S.25 of the Charter explained that the Charter should not be used to abrogate or derogate from any aboriginal or treaty rights, including:
                Anything recognized by the Royal Proclamation of 1763
                Any land claims agreements
          This would also include any federal laws made for the benefit of Indians under s.91 (24).

R v. Sparrow, [1990] 1 SCR 1075 (CB p.532)
Jurisdiction       British Columbia
Facts              Sparrow, a member of the Musqueam band, was charged with fishing with a drift net that exceeded regulation length.
Issues             Were the fishing net regulations inconsistent with Aboriginal rights?
Holding            There was not enough evidence; a new trial was ordered. Though it shows that the Musqueam had lived in the area long before the European
                   arrival and that the taking of salmon was an integral part of their lives and remained so to this day.
Ratio              This was the SCC’s first major case on the interpretation of s. 35(1). Dickson CJC and La Forest J wrote jointly, setting out a framework for
                   interpretation.
                              They interpreted the word “existing” to mean rights existing in a contemporary form. He held that any rights “extinguished” prior to
                               1982 were not protected by s. 35(1), but he rejected the idea that non-extinguished Aboriginal rights had been “frozen” in their 1982
                               form. Judge said that “existing aboriginal rights must be interpreted flexibly so as to permit their evolution over time.” (p. 533)
                                     o    Parliament or a legislature can extinguish or delineate an Aboriginal right if they clearly set out to do so. (It requires “clear
                                          and plain intention by the sovereign.”)
                                     o    However, the judges made it clear that regulation is not the same thing as extinguishment. But the court found that there
                                          was nothing in the Fisheries Act or its detailed regulations that demonstrates a clear and plain intention to extinguish
                                          Aboriginal fishing rights – Crown failed to show extinguishment (pgs. 535-536).
                                     o    The existence of the right was “not the subject to serious dispute” in this case.
                              Dickson CJC and La Forest J set out a test, which almost replicates Charter reasoning by adding a “s.1”-style analysis. One had to ask:
                               1. Was there a prima facie infringement of Aboriginal rights? (p. 541)
                                     o    They distinguished fishing rights from Aboriginal title and said a property approach was inappropriate. They said that
                                          fishing rights were “held by a collective…in keeping with the culture and existence of that group.”
                                     o    Is the limitation unreasonable?
                                     o    Does the regulation impose undue hardship?
                                     o    Does the regulation deny holders their preferred means of exercising the right?
                               2. Was the infringement legitimate? (p. 542)
                                     o    This includes: Is there a valid legislative objective?
                                               Conservation is highlighted as a valid objective.
                                     o    The court should also consider:
                                               The government’s fiduciary relationship toward Aboriginal peoples (Does this conflict with seeing them as equals?)
                                               Consistency with government policy priorities
                                               Minimal impairment
                                               Consultation
                                               Compensation (in the case of expropriation)
                                     o    In particular, when it comes to fishing, Aboriginals should have priority over non-Aboriginal fishers.
                              “Recognized and affirmed” - rights that are recognized and affirmed are not absolute.
                              S. 35 (1) provides a strong constitutional base upon which subsequent negotiations can take place and affords aboriginal people
                               constitutional protection against provincial legislative power (p. 538) – it is not subject to s. 1 of the Charter nor to legislative
                               override under s. 33 – this means that aboriginals were entitled to fish using any non-dangerous method. (Pg. 537)
                                     o    Govt must bear the burden of any legislation that has some negative effect on any aboriginal right protected until s. 35
                                          (1)
Comments                The court did not give detailed reasons about why fishing could be considered an Aboriginal right.




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                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009 p. 114

R. v. Van Der Peet, [1996] 2 SCR 507 (CB p.545)
Jurisdiction          BC
Facts                 Van der Peet. A member of the Sto:lo, was charged for selling 10 salmon she had caught under an Indian food fish licence, which only allowed
                      the fishing of salmon for food.
Issues                Were the restrictions on trading salmon inconsistent with Aboriginal rights?
Holding               No.
Ratio                 First, Lamer CJC contrasted Aboriginal rights with the liberal enlightenment idea of rights (universal, based on respect for individuals’ dignity,
                      e.g. s.7, s.15). Aboriginal rights are just as important as Charter rights, but they are different because they are only held by Aboriginal members
                      of society. (The SCC’s traditional reluctance to recognize group rights is evident here.)
                      Lamer CJC declared that Aboriginal rights were justified by the fact that Aboriginal peoples were here first, (p. 548) not by the recognition of
                      these rights in European or Canadian law. He emphasized that s.35(1) should be interpreted in light of the fiduciary relationship, which means
                      that ambiguities must be resolved in favour of Aboriginal peoples. (p. 547) and also that s. 35 (1) should be “directed towards the reconciliation
                      of the pre-existence of aboriginal societies with the sovereign Crown” (p. 548)
                      Next, Lamer CJC said tried to set out a purposive test for Aboriginal rights: “…in order to be an aboriginal right an activity must be an element of
                      a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.” Considerations include:
                      1. The perspective of Aboriginal peoples themselves
                                  However, “…perspective must be framed in terms cognizable to the Cdn legal and constitutional structure.”
                      2. The precise nature of the claim being made
                      3. Whether a practice, custom or tradition is of central significance/ distinctive to the Aboriginal society in question
                                  This means that one must demonstrate “that the practice, custom or tradition was one of the things which made the culture of that
                                   society distinctive—that it was one of the things that truly made the society what it was.” (p. 550)
                      4. Whether practice, custom or tradition has continuity with practices, customs or traditions existing prior to contact
                                  Lamer CJC claims that this is not the same thing as “frozen rights,” because it allows for practices, customs and traditions to evolve
                                   into modern forms, provided there is some continuity with pre-contact times. The continuity doesn’t necessarily need to be
                                   unbroken.
                      5. The evidentiary difficulties inherent in adjudicating Aboriginal claims
                      6. Whether a practice, custom or tradition is important to the specific group claiming the right
                      7. Whether a practice, custom or tradition is “of independent significance” to the culture, and not just incidental to another practice, custom
                             or tradition
                      8. Whether a practice, custom or tradition is “distinctive” (and not necessarily “distinct”)
                      9. Whether a practice, custom or tradition is only integral to a culture because of European influence
                      10. The relationship of Aboriginal peoples to the land and the distinctive societies and cultures of Aboriginal peoples
                      Lamer CJC held that Van der Peet did not have an aboriginal right to sell fish, because the exchange of fish was not a distinctive part of Sto:lo
                      culture; it was just “incidental” to other aspects of Sto:lo culture.

                      L’Heureux-Dubé J, dissenting, preferred an “abstract” approach, rather than focusing on the particular practice, custom or tradition in question.
                      S.35(1) does not protect “a catalogue of individualized practices, traditions or customs”; it protects Aboriginal cultures as a whole.
                          L’Heureux-Dubé J disagreed with Lamer CJC’s requirement of continuity with pre-contact culture, considering it arbitrary and calling it a
                           “frozen rights” approach. She preferred a “dynamic rights” approach, permitting cultures to evolve and adapt. She uses the Métis as an
                           example of the inadequacy of a pre-contact requirement.

                      McLachlin J, dissenting, argued that the law has historically recognized Aboriginals’ right to sustain themselves from the land and waters, and to
                      trade as far as necessary to sustain themselves. She argued that ancestral rights might be exercised in modern forms.
Comments              Prof. Sheppard said that Lamer’s judgment could be taken as the current state of the law.
                           Would self-government be an Aboriginal right under s.35(1)?
                                 Prof. Sheppard thinks that the Van der Peet test upholds the right to self-government. But there would still be an issue of defining
                                  the scope of self-government.

R. v. Gladstone, [1996] 2 SCR 723 (CB p.565)
Jurisdiction         British Columbia
Facts                Gladstone was a member of the Heiltsuk band; he was charged for attempting to sell herring spawn on kelp without a proper licence.
Issues               1. Did members of the Heiltsuk have an Aboriginal right to sell herring spawn on kelp?
                     2. Was the restriction on this right justified?
Holding              1. Yes; 2. Unclear; a new trial was ordered.
Ratio                      1. Lamer CJC applied the test in Van der Peet, and found that the sale of herring spawn on kelp was a distinctive feature of Heiltsuk
                                 society.
                           2. Lamer CJC held that there wasn’t enough evidence to determine whether an infringement had been justified. He recognized (in the
                                 abstract) the overwhelming importance of conservation, both to Aboriginal groups and to Canada as a whole. He went on to say
                                 that, once conservation goals had been met, various other criteria could justify infringement of Aboriginal rights, such as “economic
                                 and regional fairness” and the historical fishing practices of non-Aboriginal groups.
                     Sparrow showed that aboriginal rights holders have valid priority in the fishery and exclusivity under certain circumstances but this must be
                     refined to take into account the varying circumstances which arise when the aboriginal right in question has no internal limits (p. 566). Govt
                     must also think of conservation.
                     Doctrine of priority required that the govt demonstrate that, in allocating the resource – they were fair in procedure and in giving priority to
                     aboriginal people. (p. 566)
                     Govt must also weigh aboriginal rights against others that they determine are “compelling and substantial” objectives that must be met, such as
                     conservation.


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                                                                                             Canadian Constitutional Law – Prof. Colleen Sheppard – 2008-2009 p. 115

R. v. Sappier, [2006] 2 SCR 686 (Supplement Vol. 1 p. 42)
Jurisdiction         New Brunswick/Nova Scotia
Facts                 Three respondent of Maliseet origin, Members of the Woodstock First Nation and registered under the Indian Act cut down Crown timber,
                     which contravened s.67 (1)(c) and s.67 (2) of the Crown Land and Forests Act. They were stopped by officers, explained that the wood was to be
                     used for making a house and furniture on the reserve and the wood was seized. The respondents argue that there was a pre-existing practice of
                     harvesting trees to fulfil their domestic needs in pre-existing communities. The crown argues that this practice was one of survival and thus not
                     sufficient to establish defining practice, custom or tradition that truly made society what it was. (The same claim was also made by a Mi’kmaq
                     respondent)
Issues               Is a pre-cultural practice predicated on survival integral to distinctive Maliseet/Mi’kmaq culture?
Holding              Yes.
Reasoning            Bastarache J.
                          Aboriginal Right: Activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group
                           claiming the right. (Van der Peet Test).
                     Characterization of the Claim:
                          To figure this out, must clarify the exact nature the applicant’s claim: A right to harvest timber for personal use is claimed in response to
                           the statute based on a pre-contact practice of harvesting timber.
                          There is a problem with the evidence in this case because it is mostly about the importance and use of the wood (which is similar to
                           common law property) whereby evidence should typically relate to what makes the practice distinctive to pre-contact culture in order to
                           grasp the importance of the resource to the group in question to make it aboriginal and to show how the practice may have evolved to
                           present day form.
                          Harvesting wood for personal use is connected to the way of life of migratory people who lived off hunting and fishing and used lakes for
                           transportation because it was used to construct shelters, transportation, tools and fuel.
                          The claim must thus be one of a right to harvest wood for a domestic use as a member of the aboriginal community meaning no
                           commercial use (even to obtain shelter) and it must be communal.
                     Stage 1: The Integral to a Distinctive Culture Test:
                     Evidence Issue:
                          The court has recognized rights based on the importance of a resource before (Adams), based on the notion that it was so important that
                           it consisted a distinctive way of life in pre-contact. At trial, the importance of wood was affirmed and expert testimony on its importance
                           and key to communal nature was given and accepted as integral to pre-contact society to that end.
                          The court infers from survival (like in Adams) that harvesting is for domestic uses because it is important to be flexible in applying the Van
                           der Peet analysis in order to give cultural security and continuity. They are also flexible on the timing of the evidence (as some of the
                           expert’s evidence is alleged to be post-contact) because of evidence standards of being aimed as showing pre-contact origins only shown
                           in Van der Peet and Mitchell.
                     Survival as Integral?
                          It was concluded at trial that a practice undertaken for survival does not meet the integral to a distinctive culture test because the trial
                           judge bases himself on a statement from Van der Peet that says the practice should not be one true of every human society BUT this is
                           later clarified to mean the practice needs to be distinctive, not the higher threshold of distinct meaning it could be an ordinary practice in
                           certain circumstances if it is part of what makes that culture.
                          Bastarache adds that one should not confuse absolute protection of the aboriginal right to sustenance (not protected) with the traditional
                           means of the substance (protected) relied upon for survival in pre-culture practices. Jurisprudence supports this contention.
                          Bastarache strikes down the extension in Mitchell that the practice need be core such that the culture would be “fundamentally altered”
                           without it. This goes against the purpose of showing how the right relates to pre-contact life in a way that is integral and distinctive by
                           making the threshold too high.
                          In using the terms “distinctive culture”, Van der Peet tries to capture the meaning of aboriginal and rights from s.35. It should be
                           understood in context of the simple fact of prior occupation of the lands. Culture refers to the inquiry of the pre-cultural way of life, which
                           distinctive had to do with the aboriginal specificity. It means looking at the way of life and seeing how the pre-cultural practice relates
                           (e.g. migratory hunters and fishers connected to wood for making canoes, shelter and such). For this reason, the survival purpose is
                           enough to meet the standard.
                     Stage 2: Interpretation of the Right:
                          Bastarache also notes that the right must be interpreted in present day circumstances; logical evolution of same sort of activity, carried on
                           in the modern economy using modern means (Bernard). Here, the wood is used to build modern dwellings which is a logical evolution.
Ratio                A survival practice can be considered integral to a distinctive culture if it was part of their distinctive culture and not merely as stand-alone
                     survival.
Comments                  Binne argues with the idea that commerce cannot be used as a means to obtain wood to build shelter. He says that this is a modern
                           interpretation of diving labour within the communities (he holds this would not be legitimate outside).
                     Sheppard on Sapier:
                          Shows the lower threshold for evidentiary standard. To do otherwise would be to racialize aboriginals; some concerns to tensions that
                           may arise.

Mitchell v. Canada (Minister of National Revenue – M.N.R.), [2001] 1 SCR 911
Jurisdiction        Federal
Facts               Mitchell claimed an aboriginal right to go from the U.S. into Canada without paying customs or taxes on the grounds of an ancient Mohawk
                    practice on trading north. The claim failed because he did not provide sufficient evidence.
Issues              The case serves two purposes:
                    1) McLachlin CJC: To show the Court’s understanding of aboriginal rights did customary rights survive after the assertion of British
                          sovereignty?
                    2) Binnie J (minority concurring judgment): Is the doctrine of “sovereign incompatibility” incorporated into s.35?
Holding             1) Yes 2) Yes
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Ratio      McLachlin CJC:
               Gives a history of aboriginals and contact. Describes the role the Royal Proclamation played (delineating exceptions to aboriginal rights via
                incompatibility with crown sovereignty, voluntary surrender from treaty or government extinction), otherwise crown to act as “fiduciary”
                and preserved the customary rights.
               Constitutionalized status of the rights elevated them to above the common law extinction via s.35 but for the right to exist it must pass
                the “integral, defining features” test (which she expands on that the feature must be “core”) and then it must be determined if the act is
                an expression of the right. The rights could also be limited for justifiable reasons (substantive and compelling objectives- Gladstone)
           Binnie J:
               The respondent argues for maximum autonomy at Akwesasne from the Constitution, s.35(1), not Iroquois legal order. The issue of
                trading/mobility law is not one of fact but one of law about the alleged incompatibility between European sovereignty and mobility rights
                through non-aboriginal borders acquired by Mohawks in 1609.
               In 1982, s.35(1) came with the objective to reconcile aboriginals with Canadian sovereignty. The idea is that while they are a partnership
                without assimilation, they work together to achieve a common sovereignty. The privileges obtained by Indians under this provision are
                part of the sovereignty, not in mutual isolation. (also shown through the complications of establishing a third level of government). They
                are full participants in the Canadian sovereignty.
               The legal right of this claim would not be questioned if it were in a treaty because it would be the conferring of a positive right. In the case
                of an aboriginal right, it has to do with practices, customs and traditions integral to the aboriginal community’s distinctive culture pre-
                contact.
               Binnie however extends this to include British colonial law and discusses property rights in this context which is important here because
                an 18th C right is what is being referred to. One must be careful in bringing British colonial law doctrine forward because it was used in the
                past to deny land to aboriginals but it can be sparingly applied in cases that warrant it and most cases do not involve British sovereignty.
               There is a legal incompatibility with (now) Canadian sovereignty because sovereignty has a legitimate interest in mobility for public
                interest. It is important that the respondent asserts his right not as a Canadian but as a Haudenosausnee citizen based in New York State
                and that borders (albeit of a different nature) existed in the 18th C. The right is at odds with the reconciliation of s.35(1), but it does not
                have to be seen as a loss of constitutional space for aboriginals, rather it relates to the common interest of reconciliation that favours
                collective sovereignty.
Comments   As British laws helped develop some aboriginal customs, they should be considered in questions of aboriginal rights.
           “Sovereignty Incompatibility” factors into the s.35 (1) analysis because it is part of its purpose to reconcile aboriginals and the sovereignty
           being that it is used to deal with issues of collective sovereignty, which aboriginals are a part of.
               McLauchlin comments in theory that if crown sovereignty were to be subsumed into s.35 (1) that Mitchell’s claim would have failed even
                if he did have the proper evidence and gives the doctrine of continuity as its basis (from the early absorption of aboriginal rights into
                common law except for those inconsistent with crown sovereignty) but notes that “sovereign incompatibility” has not been explicitly
                contained in the rights under 35(1), it has only inadvertently been affirmed because the doctrines of extinguishment, infringement and
                justification have been used to resolve conflicts between aboriginal rights and competing claims including those based on crown
                sovereignty. She refuses to recognize it however on the grounds that she doesn’t have to in this case.
               Binnie does not want his decision to foreclose the option of aboriginal self-government; he suggests that just that exists in the U.S. within
                the sovereignty even though they don’t have a motive of merged sovereignty.
               He also notes it is not a question of extinguishing a right after 1982 because it is dealing with something purported to have never come
                into existence, a question of if the right could have arisen in the first place as a matter of law.

           Sheppard on Mitchell:
              McLachlin gives a good summary of the nature of aboriginal rights (64-65)- highlights that aboriginal rights are about finding the integral
               defining features of the society (para 12); reasonable degree of continuity with PCT prior to contact, must be a defining feature. Majority
               found no right to cross the border because insufficient evidence that core to aboriginal identity.
              Binnie. Concurring opinion: government argues there should be an additional factor read into the rights (sovereign incompatibility);
               affirming aboriginal rights would be inconsistent with Canadian sovereignty.
               o      Binne believes it should be read-in at a threshold stage to limit aboriginal rights because aboriginals are supposed to reflect the
                      affirmation of shared sovereignty- Canada as a state.
               o      This is significant in Sparrow and the following case that there is an internal mechanism to limit the applicability of rights (e.g.
                      conservation) BUT here; it is threshold, before the right is even confirmed. McLauchlin says there is no evidence while Binnie says
                      that allowing free movement would be incompatible with Canadian sovereignty. Lists an extreme case (pg. 70, para 153): pre-
                      contact Mohawk military adventures would be incompatible with Canadian sovereignty. Not the law but likely that will be raised
                      again given it was accepted as a valid argument and accepted by 2 judges.
           Questions to consider:
              Is the backwards-looking definition of aboriginal rights necessary?
              Aboriginals’ rights are viewed as communal or collective, but they are raised by individuals and they have to be connected to the
               community. To what extent does the framing of the right reinforce a predominant negative rights vision of aboriginal rights? (left alone by
               the state prior contact). To what extent does it impose an obligation on the state to remedy? The international declaration imposes
               obligations on state parties. If there is a right of self-government by contrast, the idea of turning to a positive rights remedy may be deeply
               inconsistent with conceptions of self-government.
               o      There are some communities that have been refused the jurisdiction of the Canadian courts; they did not accept the Canadian courts
                      as arbiters of their rights. They only go to the international laws to affirm their right to self-determination. Shows how complicated
                      this can get.




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Jean Leclair, Federal Constitutionalism and Aboriginal Difference (2006) 31 Queen’s L.J. 521 at 521-29
         Outlines a new legal approach, which he labels federal constitutionalism in the hope of opening up more fruitful avenues for the resolution of aboriginal
          law issues than the “frozen rights” approach currently adopted by the SCC or the Treaty federalism approach which posits that treaties should be used to
          revolve all differences between aboriginals and non-aboriginals.
         Outlines the difficulties inherent in both approaches and posits that federal constitutionalism enables us to see aboriginal people as federal actors who
          have historically shaped the Canadian federation.
         Frozen rights approach looks at cultural practices of aboriginal peoples “pre-contact” confining their rights to pre-European period  this states that it is
          antiquity and not political autonomy that forms the basis of aboriginal rights but aboriginals are not just “aggregations of interchangeable abstract civic
          individuals but rather that they are defined by a sense of tradition that allows them to make sense of the world” but even the understanding of tradition is
          not monolithic and is often debated within aboriginal communities (p 525)
         Treaty Federalism Approach: just uses treaties to co-ordinate non-aboriginal relations with aboriginals and once again, fails to look at contemporary
          relationships and the interdependence of the communities and that aboriginal dealings with the govt should be through community representatives
                o     However, the problem with this approach is that aboriginal people do not have the same leverage in terms of power relationships and are not
                      seen as federal actors
         Thus federal constitutionalism is proposed - It is a multifaceted approach that permits aboriginal questions to be addressed using the federal principle,
          thus moving away from focussing g on S. 35 of the Constitution Act 1982  aboriginal peoples would be able to exercise the rights of sovereignty over
          their own internal affairs which individual aboriginals could participate directly in federal government without having to use intermediaries.
         Federal constitutionalism would allow aboriginal peoples a guaranteed sphere of autonomy, which permitting recognition of their historical
          interdependence with non-aboriginal peoples


Métis Rights

R. v. Powley, [2001] 2 SCR 207 (Supplement Vol. 1 p. 35)
Jurisdiction         Ontario
Facts                Powleys were charged with unlawfully hunting moose and knowingly possessing game hunted in contravention of the Game and Fish Act, R.S.O.
                     1990, c. G-I. They claimed as Métis they had an Aboriginal right to hunt for food in the Sault Ste. Marie area.
Issues               Did the Powleys have an Aboriginal right to hunt for food?
Holding              Yes.
Ratio                In Van der Peet, the majority recognized that the pre-contact test might prove inadequate to capture the range of Métis customs, practices or
                     traditions that are entitled to protection, since Métis cultures by definition post-date European contact.
                     Correct test: S.35 requires that we recognize and protect those customs and traditions that were historically important features of Métis
                     communities prior to the time of effective European control, and that persist in the present day. This modification is required to account for
                     the unique post-contact emergence of Métis communities, and foundation of their aboriginal rights.
                     1. Characterization of a right:
                              Métis rights are contextual and site specific. Scarcity of moose does not matter. Right to hunt food in the designated territory here.
                     2. Identification of the historic rights-bearing community.
                              A distinctive Métis community emerged in the Upper Great Lakes region in the mid-17th century, and peaked around 1850.
                     3. Identification of the contemporary rights-bearing community.
                              Aboriginal rights are communal rights: They must be grounded in the existence of a historic and present community, and they may only
                               be exercised by virtue of an individual’s ancestrally based membership in the present community. The continuing practice of members
                               is the focus, not the community itself.
                              A Métis community has persisted in and around Sault Ste. Marie despite its decrease in visibility after the signing of the Robinson-
                               Huron Treaty in 1850.
                     4. Verification of the claimant’s membership in the relevant contemporary community.
                              Will become more standardized on a case-by-case basis; to account for both value of community of self-definition/need for a process of
                               objectively verifiable identity. Criteria must reflect the purpose of the constitutional guarantee: to recognize and affirm the rights of the
                               Métis held by virtue of their direct relationship to the country’s original inhabitants and the continuity between their
                               customs/traditions and those of their Métis predecessors.
                              Three broad factors as indicia of Métis identity to claim Métis rights under s. 35: self-identification with community (not of recent
                               vintage), ancestral connection (some form of proof), and community acceptance.
                     5. Identification of a relevant time frame:
                              The test for Métis practices should focus on identifying those practices, customs and traditions that are integral to the Métis
                               community’s distinctive existence and relationship to the land; a post contact (when community arose) but pre-control (of European
                               laws and customs, politics in a particular area) test.
                     6. Determination of whether the practice is integral to the claimant’s distinctive culture:
                           o     Proof shows hunting for food was integral to the Métis way of life at Sault Ste. Marie and a defining feature of their special
                                 relationship to the land, just prior to 1850.
                     7. Establishment of continuity between historic practice and the contemporary right:
                           o     Yes- right amounts to the practice.
                     8. Determination of whether or not the right is extinguished:
                           o     No (Crown argument from a treaty from which the Métis were specifically excluded)
                     9. If there is a right, determination of whether there is an infringement:
                           o     Ontario currently does not recognize any Métis right to hunt for food which in conjunction with challenged provisions, infringe their
                                 aboriginal right to hunt for food
                     10. Determination of whether the infringement is justified:
                           o     Main justification advanced is conservation. Although conservation is clearly a very important concern, this justification is not
                                 supported in this case. There is no indication that moose are under threat and the Métis would still be entitled to priority allocation to

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                              satisfy subsistence needs in accordance with the criteria set out in R. v. Sparrow.
Comments             Sheppard on Powley:
                        Raises the issue that Métis comes from the intersection of colonial fur traders and aboriginals. How do you adapt the pre-existing customs
                         to the aboriginal community?
                        This is anticipated for Lamer who says it is being developed for the Métis.
                        Significant case because Métis are recognized as aboriginal peoples, and they are mentioned in the constitution act. Prior, they have been
                         overlooked. First big case involving them.
                        There is discussion around identity. In terms of the test (para 37);
                        Slight modification of Van der Peet: Continue customs integral to their specific land, here the test by analogy should be integral to
                         distinctive customs and traditions, which is best established by post-contact and pre-control. It uses a different definition, what is
                         significant to the community and is changing over time.
                        Big question: who is a Métis? The court discusses it but leaves it open. Recall Lovelace, an American citizen immigrated into Canada
                         adopted into the Métis community when he was an adult- not the historic bloodline idea contemplated. Pg. 35- 3 factors that are indicia
                         of Métis identity; (1) self-identify (many people who’s ancestry includes aboriginal ancestry so they try to limit it to people connected to
                         the community) (2) present evidence of historic evidence to Métis community (that ancestors somehow belonged), (3) past and ongoing
                         participation in shared culture.
                         o     Seems like a circular sort of definition (to be a Métis, must be a Métis- what makes the ancestors the Métis)
                         o     Métis Scholars argue its unrealistic, must have the information in pocket when hunting moose.

Duty to Consult

Haida Nation:
   Strong interpretation of the “duty to consult” based on the principle of honour of the crown in all dealings with aboriginal people. This duty exists when crown
    decisions could adversely affect an aboriginal right or title, and extends to cases where title/right asserted but not yet proven.
   Facts: replacement of tree licenses had a potential adverse effect and were objected by the Haida.
   The duty to consult is in the name of reconciling aboriginals with crown sovereignty (to close the gap between what is not yet protected by s. 35).
   It should not take place after the scope or content of right has been determined because by then the resource could be gone which is not in the interest of
    reconciliation or honour.
   The duty is context dependent; on the knowledge of potential existence of the right and conduct that may potentially produce adverse effects. The scope is of
    the duty is proportional to these elements.
   The duty encompasses good faith on both sides and is one to consult, not agree. This may result in accommodation if the effects were significant.
   In this case, the title/right was supported, there would be a large impact on the Haida, consultation should have taken place at the grant stage and there may
    have had to been some accommodation.

Sheppard on Haida:
    Series of cases around 2004 where the court developed important idea around meaning and content of aboriginal rights.
    These cases take a long time. The court concluded that the government, even before an aboriginal right, title or land claim is confirmed, has legal obligations
     that arise in law.
    Pg. 38 Government has a duty to consult and to accommodate the needs and interests of the Haida nation. This is premised on a vague idea of the honour of
     the crown; honourable dealings with aboriginal peoples. Historical roots suggest it must be understood generously to reflect the underlying realties from which
     it stems.
    Pg. 39 Duty to consult grounded in the honourable obligations that the crown has arises when the crown has knowledge (real or constructive) of the potential
     existence of the aboriginal right or title, or conduct that may adversely affect it. Once the government knows, it has a duty to consult an aboriginal community
     whose rights are at stake.
    They note it is sort of a sliding scale; how much consultation is required.
    The crown’s obligation to consult was engaged, crown ordered to consult the Haida nation pending the outcome. This may seem hollow but a theme emerges in
     the article on WebCT showing that the court has shifted to affirming process rights.
Other two cases act as variations on that duty to consult.

Taku River Tlinglit First Nation v. British Columbia (Project Assessment Director) 2004
   A duty to consult with Taku was imposed because there was a negative impact from the road through their territory but even though they disagreed, they
    proceeded.
   The court held that the duty to consult was upheld even though not all board concerns were met when the final plan was approved. Duty was not to reach an
    agreement and acted in good faith because sometime Crown must make decisions in the name of balancing societal and aboriginal interests (in interest of
    reconciliation of s.35).

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) [2005]
    Crown built a road going through the Mikisew territory and thus reducing it. A breach of the duty to consult was found as the impact of the road was clear. This
     was a lower end version of the duty however because it was a minor road. They should have given them notice, engaged them and tried to minimally impact. It
     was not found to discharge its obligations by moving the road to the boundary as there was a failure to demonstrate intent to address the concerns through
     consultation.




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Part VIII: Constitutional Renewal and Reform
Amending the Constitution
Should the constitution be amended by citizens, or instead by the govt representing them?
If the latter, are legislative assemblies the right avenue?
Should specific groups such as aboriginal people, have a say in the changes that affect their rights?

Process
       Not until patriation of constitution in 1982, did we have a domestic amending formula. Previously, Canadian govmt had to make a request to Westminster
        and a statute would be passed in London amending our constitution.
       Part V is amending formula section: and it is significant that we can now amend in Canada
       S. 38- S. 49 are provisions for how amend
       There is not one single rule for amending the Constitution but five rules contained in Part V
    1. General amending formula – s 38 (pg. 452)
            i. Consent of the Parliament of Canada and the legislatures of 2/3rd of the provinces having at least 50 percent of the population in Canada
           ii. No province alone has a veto on amendment, which has been a source of dissatisfaction in Québec – this procedure has time limits (amendment
                dies unless it has received the appropriate degree of support within three years of the start of the process)
          iii. S. 38 permits a province to opt out of an amendment derogating from is legislative powers, proprietary rights or other rights and can get
                compensation if they lose power in education and cultural domain
    2. Unanimity procedure – s. 41, for important central issues, you need unanimity – requires greater unanimity when it is in relation to the office of the Queen
    3. The Bilateral procedure – s. 43, if the amendment concerns one specific province, only that province’s legislature and parliament need consent to
        amendment
    4. Federal Unilateral procedure – s. 44 - allows parliament alone to make amendments to the fed executive of House of Common or Senate when it affects
        just the Fed govt
    5. Provincial unilateral procedure – in s. 45, permits the provinces to amend its constitution, provided that the amendment does not affect matters governed
        by other amending formulae, such as the office of the lieutenant governor
                         S. 35. (1) Provides that aboriginal leaders must be consulted on amendments that affect them but they need

Attempts at Constitutional Reform
Two attempts to address grievances from 1982 were failures:

Meech Lake Accord (1982)
       Died when it reached its time limit because it was behind closed doors – major critique of Meech Lake – locus of sovereignty (whose opinion counts for
        amending the constitution?)
What it gave:

Central government that recognized Qc as a distinct society
          Entrenched SCC in constitution, requirement 3 Js from QC
          Increased number of items that would require unanimity
          Put controls on federal spending power
          Gave Qc further immigration powers
          It was well received in Qc: Qc as a distinct society, including CIL tradition but there was concern out side Qc, that the accord gave Qc special status.

Why it Failed:
Aboriginal people were concerned that accord reflected English – French Canada and this was a main block of the accord recognition of Quebec as a distinct society;
lots of support in Quebec
                 Entrenchment of SCC in constitution
                 Requirement of unanimous consent for many const amendments
                 Controls on spending power
                 All done behind closed doors; no public consultation

Charlottetown Accord (1991-92)
Wanted to fix problems of Meech Lake accord process: wide-spread consultation with citizenry, lots of public consultation
               Included provision paralleling Meech Lake accord:
                 o    Recognition of Qc as a distinct society
                 o    Recognition that it is legitimate to protect language rights, but govt went too far in this instance
                 o    Took aboriginal people into account and recognized aboriginal self-govt, “one of the three orders of government in Canada”, provision design
                      to repeal s. 35(1) (territorial integrity), aboriginal govt constituting one of three orders of govt in Canada, right to safeguard their languages
                      and cultures – very different tone from s. 35(1), more dynamic
                                Aside: aboriginal rights are usually articulated as negative rights (last section)
                                Native Women’s Association was not entirely happy with aboriginal aspects – wanted to stop referendum from happening because
                                 they argued that aboriginal; women had not been adequately represented in process (more govt funding for traditional
                                 organizations to participate, dominated by men).
                                Elected senate to provide equal provincial representation
                                Guaranteed level of Qc representation in HoC, even w declining pop
                                Social charter clause: to address poverty rights. Non-justiciable social and economic rights, programmatic.
                                Canada clause on importance of multiculturalism, gender equality.
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1995 referendum in Quebec provoked panic
    Quebec Secession Reference (QSR): politically loaded
          a gamble in terms of result, also in terms of legitimacy of process
          SCC politically astute: suggested that secession was possible, but only with a constitutional amendment
                managed to give a little to each side and retain its own legitimacy
                court could have said that it’s not justiciable, that constitution is silent
          SCC articulated unwritten principles, which would give rise to a legal duty to negotiate terms and possibilities of secession; however, no legal duty to agree
                Other provinces would have to be involved in negotiation, not just Quebec and federal government. What about other parties, such as Aboriginal
                 groups?
          Monahan thinks QSR decision made sovereigntist position stronger: legitimized secession option
          SCC declined to say what would constitute a clear majority and a clear question.
    Clarity Act contains mechanism for House of Commons to assess whether a referendum question is clear, and whether a majority is clear.
    Quebec passed Fundamental Rights Act which says that 50% + 1 is sufficient.
    interesting comparison: Newfoundland joined confederation in 1949 with only 51-52% majority.
    we are now more likely to see discrete amendments than efforts to overhaul the constitution and make everyone happy.
    You don’t necessarily need to constitutionalize; you can also do a lot through statutes, e.g. First Nations Governance Act.
    Think about: how effective is constitutional law in responding to societal needs?
          Monahan thinks we need more controls on executive power
          Frank Michaelman (Harvard): constitutional law waning in importance due to globalization, privatization
          privacy issues threatened through modern technology: could violate ss.7-8?
          freedom of expression in the workplace




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Simone Chambers, “New Constitutionalism: Democracy, Habermas, and Canadian Exceptionalism”
         Main theme : We must accommodate diversity and multiple voice in the New Constitutionalism but this makes it much much harder to get things done,
          effect changes to which everyone is on board
         New Constitutionalism emerged from the ideology of liberal democracy - it finds its theoretical expression in the democratization of contract theory which
          means pushing liberalism to be more inclusive
         Constitutions have had to accommodate pluralism and diversity in new ways in order to succeed; just making Bill of Rights for everyone is not enough →
          constitutions should reflect not just protect diversity in their rights statements (
         Canadian constitutional debate over past 20 yrs has not produced changes, but the value is in the discussion and not necessarily in the results. This
          embodies Canada’s commitment to diversity, rights and recognition.
         Most important feature is practiced accountability, even if nothing new emerges to change the Constitution.
         New constitutionalism is about rights that can accommodate diversity, identity, plurality and difference
         The pressures of egalitarian democracy combined with demands for inclusion of different voices has made representative constitution-making (e.g. US in
          1776) increasingly untenable.
         Meech Lake showed how Canadians expect to be consulted – Canadians hated that Meech Lake was behind closed doors” but then Charlottetown failed
          because they consulted everyone and many groups exercised “diversity blindness” where they only looked at their group’s issues and ignored the
          importance of including diverse interests from other groups as part of their priorities
         Problem with constitution-making in culturally divided societies: we need ‘people’ to be able to speak as one in order to fulfil voluntarist aspiration yet
          creating such people through assimilation violates that very aspiration.
                 o    Solution: engaging in democratic process of deliberation can create bonds of solidarity between diverse actors without requiring immersion in
                      melting pot.
         Process represents acceptance of rules regulating practice rather than agreement about substantive political visions.
                 o    Ex: Canada Clause in 1992 → contained many visions but rejected for not adequately expressing any one view. BUT Canada is diversity and the
                      clause was good because it didn’t contain one unitary vision of justice.
         In a Constitutional debate, this is a problem→ legitimate constitution must have wide popular support from all major sectors but if each sector evaluates
          constitution from its own perspective, then no solution will be possible.
         How to get over this?
                 o    Embrace multicultural diversity as predominant characteristic of Canada and overcome diversity blindness.
                 o    Let go of expectation that Constitution should present unitary vision (as in US tradition) - note this does not mean give up unity, but trying to
                      understand each other
         Constitutionalism in the age of democratic diversity is more about keeping the conversation going than about getting everyone to sign on dotted line at
          one time and place.
         2 components: procedure and process.
         Alan Cairns: “constitutional politics is never-ending”
         Charles Taylor: Canada is based on sense of partnership where one common purpose for the people is maintaining this association (conversation) with
          people whom they recognize as different.
         Idea of an ongoing open conversation between diverse groups rather than idea of unitary identity for nation-state.
    Habermasian approach looks at the institutional conditions of public opinion formation and the ethics behind the process of changing a constitution – posits
    that there are 2 main characteristics of New Constitutionalism →
                 o    Increased recognition and respect for diversity
                 o    Growing demand for popular consultation and accountability
         Advocates discourse theory because its procedural character makes it a tool in theorizing constitutional model that can accommodate difference and
          diversity.
         It allows new voices and as yet unrecognized identities to enter the fray
         Introduces view of relation between rights and democracy whereby we democratically determine rights that will limit our democracies.
                 o    Ex. SCC decision on Quebec law restricting English signs and use of notwithstanding clause.
         For justice to exist what counts is how convincing rights are to citizens
         Threats to rights come in form of changing attitudes and beliefs
         Habermasian discourse: conditions of democratic discourse include individual freedom, equity and mutual respect. To maintain these we need circular
          argument (i.e. those same conditions).
         SO there’s no people’s will to speak of without rights and no rights without people’s will endorsing them; (Habermasian rectification of individual and
          public autonomy)
         Liberal democracy, in its constant revision is therefore what it says it is.
         New constitutionalism combines modern centrality of rights with ancient role of practice. It shifts emphasis away from discovery and writing of abstract
          principles to the maintenance of a practice that presupposes rights.
         Vision that combines centrality of rights in modern constitutions with role of practice in ancient constitutions
         Sheppard posits that constitutionality as a process (like Secession or Hadida); believes Charlottetown is slightly successful because registered a
          conversation about who were are- stopping the conversation is a failure. Most give the dialogue a negative read (can’t get act together) but suggests it is
          strength.
                 o    Discourse theory is an interesting way to construe diversity - the fact that we are in a dialogue is important, even if we don’t solve everything.
                      Bottom up approach to constitutionalism; solution through talking.

          Formal legal rights can only go so far – there are embedded prejudices (regional) that prevent notions from being accepted across the country, as well as
           forces of assimilation that are working against minority rights – there needs to be change on more than one plane




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